Pfizer Specialties Limited V. Chyzob Pharmacy Limited & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

M. L. GARBA, J.C.A. (Delivering the Leading Judgment)

This appeal relates to the ruling of the Federal High Court, Lagos in Suit No. FHC/L/CS/1318/99 which was delivered on the 13/2/2001. The ruling struck out the Appellants’ claims as Plaintiffs on the grounds that:- (i) the Plaintiff lacked the locus standi to institute the action, (ii) that the Statement of Claim did not disclose a reasonable cause of action and (iii) that court lacked jurisdiction to entertain the claims of the Plaintiff.

Being dissatisfied and aggrieved by that decision, the Appellant made for this court to register and ventilate his complaints against it. A notice of appeal was dated and filed on the 12/3/2001 in accordance, with the law and Rules of this court containing seven (7) grounds of appeal by learned Counsel for the Appellant. Devoid of the particulars, (which I would set out later on in respect of ground No. VII to which objection was made), the grounds are as follows:-

“(i) The learned trial judge misdirected himself in referring to “parallel importation” as a cause of action and relying on judicial authorities concerned with the viability of actions for trade marks infringement as means of stopping the act of parallel importation.

(ii) The learned trial judge erred in law in failing to reach a decision on the first issue for determination which his Lordship himself formulated in his ruling.

(iii) The learned trial judge erred in law in holding that the Federal High Court is not vested with jurisdiction to adjudicate on the claim of the Plaintiff/Appellant.

(iv) The learned trial judge erred in law in limiting his consideration of the Plaintiff/Appellant’s claim only to the question whether it is entitled to sue the Defendant/Respondent for the tort of unlawful interference in business

(v) The learned trial judge erred in law in failing to hold that the statement of claim disclosed a reasonable cause of action.

(vi) The learned trial judge erred in law in holding that, on the face of the statement of claim, the Plaintiff/Appellant had no locus standi to sue the Defendants/Respondents for the tort of unlawful interference in business interest, for the reason that it is only the Attorney-General that can enforce the provisions of the Drugs and Related Products (Registration etc)Act of 1993.

(vi) The learned trial judge erred in law in refusing to grant an interlocutory injunction against the Defendants/Respondents as prayed by the Plaintiff/Appellant.

Eventually, briefs were settled by counsel as follows; Appellants’ counsel filed Appellants’ brief of argument on 26/6/2001, Appellants’ Reply brief to 1st Respondent’s brief on 22/11/2005 and Appellants’ Reply brief to the 3rd Respondent’s brief was filed on the 9/2/2005. The 1st Respondent’s brief was filed on 11/11/2005 and deemed filed on 14/11/2005 while the 3rd Respondent’s amended brief of argument was filed on the 1/2/2005 and deemed properly filed on the 17/3/2005.

The 3rd Respondent had also filed a motion of preliminary objection to ground of appeal No (VII) on 25/2/2004 which he argued in the 3rd Respondents amended brief. There is no record that any brief of arguments was filed for the 2nd Respondent to the appeal”

At the hearing of the appeal, learned Counsel adopted and relied on their respective briefs of arguments and urged us to find for their clients; allowing or dismissing the appeal as the case may be.

The appropriate way to start a consideration of the submissions of Counsel on their respective positions is by taking the preliminary objection to ground of appeal No. (VII) by the learned Counsel for the 3rd Respondent in his motion referred to above.