British American Tobacco Nigeria Ltd V. International Tobacco Company Plc & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment)

Appellant, British American Tobacco Nigeria Ltd, brought an appeal against the Ruling of the Federal High court, Ilorin, in suit No FHC/IL/CS/47/2010.

Whereof his lordship, A. O. Faji J, on 14/2/2011, ruled against the Appellant and discharged the ex-parte Orders of Interim Injunction earlier granted to it (Appellant) by the lower Court on 13/12/2010. The Appellant, as plaintiff at the Court below, had filed an Ex-parte application, contemporaneously, with the writ of summons, for Interim Injunction and Anton Piller Order (among other reliefs) and the same were granted and executed, accordingly, at the premises of the Defendant/Respondent (International Tobacco Company PLC).

Thereafter the Defendant/Respondent filed an application to set aside and discharge the said Interim Injunction and Anton Piller Orders, for having been obtained under misrepresentation/suppression of facts. After taking all the arguments of all the Counsel, in a considered Ruling, the trial Judge ruled in favour of the Defendant thus:

“…The Defendant has shown that all it did was in consonance with in the exercise of the rights of a registered Gallaher, and that my view, gives the Defendant perfect cover in the circumstances of this case. Not having made the existence of this rival claimant to the trade mark known to the Court, the plaintiff suppressed a fact relating to its status vis-a-vis the trade mark and the Ex-parte order made on 13/12/2010 ought to be discharged. I so order…”

That is the Ruling Appellant appealed against in this appeal Appellant filed its Notice and Grounds of Appeal on 27/2/2011 against the 1st Respondent (who was the sole Defendant at the lower Court). It raised three grounds of appeal, as follows:

”GROUND ONE:

The learned trial Judge erred in law when he held that the plaintiff misrepresented and suppressed facts in obtaining the Ex-parte Orders granted by the lower Court on December 13, 2010.

PARTICULARS OF ERROR:

(a)The Honourable Court in reaching its decision failed to consider the entire facts and circumstances of this matter, especially as it relates to the specific parties before the Court as at the time of institution of the suit, viz;

(i) The plaintiff discovered that the Defendant was engaged in an act that infringed and threatens to infringe its proprietary/legal right in the “DORCHESTER” trade mark No. RTM 62627 in class 34, consequent upon which the plaintiff instituted the substantive suit.

(ii) At the time of the institution of the suit, the plaintiff was not aware of and was not in a position to know of any internal arrangement between the Defendant and any third party such as Gallaher Limited, J. T. International Group of Companies, and/or Habanera Limited, or whether the Defendant could have derived the right to use the subject trade mark from any of such third parties.

(iii) The Defendant is not a party to any of the pending court actions between the plaintiff and Gallaher, nor is Gallaher a party to the suit herein.

(b) consequent upon the above, the facts found by the Honourable Court to have been suppressed by the plaintiff are not material facts requiring disclosure within the con of the law and the entire facts and circumstances of this matter and the parties thereto as at the time of filing of the application.