Access International Schools Ltd. & Anor. V. Access Schools Ltd. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the Ruling of Olatoregun J. of the Federal High Court, Ogun State delivered on the 27th day of June, 2007.

The respondent filed an originating summons dated 15th November, 2006 together with a motion on Notice also dated 15th November, 2006 praying the Honourable Court for an injunction of passing off against her name. Before the hearing of the application, the Appellants entered a conditional appearance and also filed a Notice of Preliminary Objection all on the same date being 30/1/2007.

For clarity the Notice of Preliminary Objection is reproduced here under:-

“TAKE NOTICE that before or at the hearing of the plaintiffs originating summons dated 15th November, 2006 and/or motion on Notice dated 20th December, 2006 and/or any other application(s) the 1st and 2nd defendants/applicant’s shall rely on the following Preliminary Objection, that is to say, that;

i. The suit is grossly and palpably incompetent and hence the Honourable Court lacks jurisdiction to entertain same.

ii. The suit discloses no reasonable cause of action against the 1st and 2nd Defendant/Applicants.

iii. The suit is frivolous, vexatious and an abuse of the judicial process.

GROUNDS OF THE APPLICATION

1. The plaintiff has failed to show what legal right(s) of the plaintiff that has been infringed or is likely to be infringed.
2. The suit is unjusfiable and therefore not maintainable for failure to disclose any genuine legal issue in controversy to be subjected to trial.

AND FURTHER TAKE NOTICE that at the hearing of this application, the 1st and 2nd Defendant/Applicants shall rely on all legal and equitable defences.

RELIEF(S) SOUGHT

An order striking out the originating summons and dismissing the action against the 1st and 2nd Defendants/Applicants.”

The Notice of Preliminary Objection was argued and in a considered ruling delivered on 27th day of June, 2007 the learned trial Judge struck out the Appellants Notice of Preliminary Objection hence this appeal. Appellants filed notice of appeal 10th on July, 2007 containing two grounds of appeal.

In accordance with the practice of this court Appellants filed their brief of argument on 5/5/2008 but same was deemed properly filed on 13/11/2008. Respondent did not file any Respondent’s brief of argument. When the appeal came up for hearing on 19/10/2011 Respondent did not appear in court though served. The court observed as follows:-