International Tobacco Company Plc V. British American Tobacco Nigeria Limited & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the leading Judgment)

This appeal is an offshoot of the decision of the Federal High Court, Ilorin Division, Coram A. O. Faji, J., in Suit No.FHC/IL/CS/20/2012 wherein some interim orders were made in favour of the respondents.

The facts of the case in the lower court, which culminated in this appeal, are very succinct. The appellant and the respondents are into tobacco manufacturing and distribution in Nigeria. The respondents and the appellant were the plaintiffs and defendant in the lower court respectively. The respondents claimed that sometime in February 2012, they discovered that the appellant manufactured, distributed and sold “Gold Bond” brand filter cigarettes in gold colour which infringed their exclusive and distinctive use of the get-up, device and design of gold colour for their “Benson & Hedges” brand of filter cigarettes. They further claimed that the appellants “Gold Bond” filter cigarettes were being sold in Ilorin, Ibadan, Lagos and their environs.

Consequently, the respondents, on 18/4/2012, took out a writ of summons and a statement of claim wherein they claimed, against the appellant, several declaratory and injunctive reliefs for infringement and passing off of their proprietary trade mark rights in their “Benson & Hedges” filter cigarettes. The respondents, on the same 18/4/2012, contemporaneously, filed a motion ex-parte in which they prayed the lower court for seven (7) interim and anton pillar orders of injunction against the appellant. On 19/04/2012, the respondents’ ex-parte application was moved. The lower court granted the seven (7) substantive prayers in the application as shown on pages 179 – 182 of the printed record of appeal.

The appellant was dissatisfied with the decision of the lower court. As a result, it filed a two-ground notice of appeal, on 03/05/2012, found on pages 197 – 200 of the record and prayed this court for: “An order setting aside the decision of the court below.” Sequel to that, parties filed and exchanged their briefs of argument in consonance with the Rules of this court.

Thereafter, the appeal was heard on 18/03/2013. In that regard, I. O. Akanmidu, Esq., adopted the appellant’s brief of argument and its reply brief of argument, filed on 19/12/2012 and 11/03/2012 respectively settled by Olaseni Oyefeso, Esq., as representing his arguments in support of the appeal. He prayed the court to allow it. Similarly, Dayo Ayoola-Johnson, Esq., adopted the respondents’ brief of argument, filed on 08/02/2013, Mrs. Funke Agbor, but deemed filed on 25/02/2013, as forming his arguments against the appeal. Learned Counsel urged the court to dismiss the appeal.

The appellant, in its brief of argument, crafted two issues for determination of this appeal to wit:

“1. Whether the affidavit in support of the Ex-parte Motion by which the court below granted interim orders in favour of the Respondents discloses any situation of extreme urgency.

2. Whether a trial judge can safely conclude that the brand packing adopted for a product by a party infringes or is capable of being passed off as the product of an applicant based on affidavit evidence and exhibits attached to affidavits without hearing evidence at proper trial.”

On their part, the respondents, in their brief of argument, distilled a lone issue for determination of the appeal, viz:

“Whether having regard to the materials before the court, it was proper for the court below to protect the statutory rights of the Respondents by granting interim orders in a case where a prima facie case for the grant of Anton Pillar Order has been made out and unchallenged.”

I have juxtaposed the appellant’s issues for determination of the appeal with that of the respondents. It is my view that the two sets of issues are symmetrical such that the respondents’ solitary issue can conveniently be subsumed under the appellant’s two issues. This is more so, when the respondents responded to these two issues. On this score, I will consider the appeal on the footing of the appellant’s issues for determination. After all, it is the appellant that is peeved by the decision of the lower court.

Arguments on the issues:

Issue one.

Learned counsel for the appellant submitted that an existence of a situation of real urgency is a critical rationale for a grant of ex-parte applications and it is the materials in the affidavit in support of such applications that guide the court in deciding whether the applicant delayed or not. He posited that an ex parte applicant, in the affidavit in support of the ex parte application, must disclose: the date the events sought to be restrained occurred, the imminent danger that will occur to him before hearing, should the adversary be put on notice, the date of the application and that there is a proper case for a grant of interim restraining orders. He placed reliance on the cases of Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419; Odutola v. Lawal (2003) 1 NWLR (Pt.749) 633; Unibiz (Nig.) Ltd v. CBCL Ltd. (2003) 6 NWLR (Pt.816 (sic. 861) 402 to support his submissions. He posited that the interim orders made by the lower court, particularly interim orders 2 and 3, fell short of the requirements for the grant of ex-parte injunctions as prescribed by law.