Oleeve Nig. Ltd & Anor V. Dormath Trading Co. Ltd & Anor (2009)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A.

This is an appeal against the ruling of A. Lewis – Allagoa J of the Federal High Court sitting at Enugu in Suit No. FHC/EN/CS/133/2004 delivered on the 4th October, 2005. The facts leading up to this appeal are stated hereunder as follows – By a writ of summons issued on the 6th May, 2004 and filed together with a statement of claim the Respondents as Plaintiffs claimed as per writ and paragraph 22 of the statement of claim as follows –

(a) An order of injunction restraining the Defendants jointly and severally and each of those upon whose behalf the said Defendants are sued and in either case whether acting by themselves their servants or privies or any of them or otherwise howsoever from perpetually doing any of the following acts:-

(iv) Infringing the trademarks, registered design, name and devise of Plaintiffs’ registered BRAND PRINTING INK registered under trade mark Number TP 64 702 in class 16 and design registration Number 9384 in the Registrar of Trade Mark and Register of Patent and Design Federal Ministry of Commerce Abuja.

(v) Passing-off or causing or enabling or assisting others to pass-off products deceptively styled PEONY Brand Printing Ink Purporting same to have been made, sold or being products of the Plaintiffs.

vi. Importing, distributing, selling, promoting, and offering for sale, supplying or otherwise dealing in products marked PEONY brand printing ink.

(b) Against the Defendants jointly and severally and each of those upon whose behalf they are sued by themselves, their servants, agents, privies or howsoever

AN ORDER FOR DELIVERY UP UPON Oaths to the Plaintiffs through its firm of legal practitioners of the infringing and passed off products or any other products to which the trade mark name “PEONY” or registered design is printed or pasted which are in the custody of the Defendants together with the invoices, receipts and other documents pertaining thereof.

(c) Account of that part of Defendants profit of the infringement and passing off of Plaintiff’s products or same without authorization purporting same to be products of the Plaintiff.

(d) N700, 000.00 (Seven Hundred Thousand Naira) being cost of this action.

The Appellants as Defendants filed their statement of Defence and Counterclaim on the 17th June, 2004.

Parties subsequently sought for and were granted leave of court to amend their respective pleadings. By a motion on notice dated the 1st March, 2005 and filed same day and brought pursuant to order 36 Rule 6 (1) and Rule 7 of the Federal High Court Rules, the present Appellants as Defendants in the court below prayed that court for an order directing that the following questions be tried separately and upon answering the questions in favour of the applicants, to enter an order dismissing the suit:

1. Whether the Plaintiffs (Respondents in this appeal) have either a right or a cause of action against the Defendants (Appellants in this appeal).
2. Whether the present suit (in the Court below) is properly constituted.
3. Whether the registration of the Patent and Design can be sustained in view of S. 22 of the Patents and Designs Acts (Cap 344) Laws of the Federation 1990). PARTICULARS of defect are given at paragraphs 11(C) and (D) of the further amended statement of defence and Counterclaim and on the showing of the plaintiffs themselves.

This motion and an affidavit in support of it can be found at pages 654 – 655 of the Record of Appeal. Shortly thereafter and before the previous motion was taken, the Respondents as Plaintiffs brought an application on notice dated the 9th March, 2005 and filed same day praying the court below for the following:

1. FOR AN ORDER PURSUANT to Order 26 Rule 20 and Order 25 Rule 4, Federal High Court Rules striking out the Amended Statement of Defence and Counterclaim on the grounds that it is an abuse of the process of Court and did not comply with the mandatory provisions of Order 48 Rule 7(2) and (3) and Order 48 Rule 8 of the Federal High Court Rules.
2. FOR AN ORDER PURSUANT TO ORDER 25 RULE 4 and order 26 rule 20 entering judgment to (sic) the Plaintiffs in terms of reliefs 22(a) and (b) of the further amended statement of claim.
3. AND for such further orders or other orders as this Court may deem fit to make in the circumstance.

This motion is supported by a nine paragraph affidavit and can be seen at pages 656 to 659 of the Record of Appeal. The Learned Trial Judge listened to counsel with respect to the two motions on notice filed on the 1st March, 2005 and the 9th March, 2005 and in his words as contained at page 739 of the Record of Appeal, “to give a final ruling on those issues raised.” With respect to the Defendants (now Appellants) motion dated the 1st March, 2005 and filed same day, the court in a considered ruling held as follows-