Alliance International Limited V. Saam Kolo International Enterprises Limited (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADAMU JAURO, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court Lagos, Coram E.O. Sanyaolu J, delivered on the 21st day of January, 2002.

The facts culminating in this appeal can be briefly stated as follows. The respondent as plaintiff contended that it had been marketing shoe protectors described as ‘Step’ and ‘Guard’ on behalf of its overseas principal since 1981 and got the protectors registered in 1990 as trade mark in Nigeria. The plaintiff alleged that the defendant now appellant infringed its trade mark ‘Step’ and ‘Guard’ in the production of shoe heel and sole protectors. The defendant denied the allegation, stating that at the time of the alleged infringement, it had a design certificate in respect of heel protector ‘step’ and sole protector ‘step’ issued by the Registrar of Design in Abuja. At the institution of this action, there was a pending suit between the same parties at the instance of the respondents before another Federal High Court, seeking for the nullification of the certificate of design issued to the appellant and same suit determined in favour of the respondent. The respondent as plaintiff instituted this action and claimed against the appellant as defendant, for damages, injunction and other sundry reliefs based on the infringement of its trade mark by the defendant now appellant.

Pleadings were filed and exchanged and the case proceeded to full trial. The plaintiff called 4 witnesses styled PW1 to PW4 in support of its case and tendered an avalanche of documentary exhibits and some specimen ‘heel’ and ‘sole’ shoe protectors. The defendant called a single witness in defence and also tendered copious documentary exhibits. Upon the conclusion of hearing, both parties proffered oral addresses to the court. In its judgment, the trial court at page 130 of the record held thus:

“Having regard to all the circumstance of this case, I hold that the Plaintiff succeeds in his claim and I hereby make the following orders:

1. An order of perpetual injunction restraining the Defendant whether acting by its director, distributors, servants, agents or otherwise howsoever from infringing the Plaintiffs Registered Trade Marks Nos. 49624, 49625 and 49626 as tendered before me.
2. An award of W5.5 Million (Five Million and Five Hundred Thousand Naira) against the defendant in favour of the Plaintiff as general damages suffered by the Plaintiff as a result of the infringement.”

Dissatisfied with the judgment, the defendant filed an appeal against it anchored on eight grounds, pursuant to a notice of appeal dated and filed on 5th February, 2002. In compliance with the Rules of Court, parties filed and exchanged briefs of argument.

The appellant’s brief of argument was dated and filed on 25/1/06, while the reply brief was dated and filed on 5/3/09. Mr. Egwuatu for the appellant adopted and relied on both briefs in urging this court to allow the appeal with costs, and set aside the decision of the trial court. Learned counsel stated that they had filed a list of additional authorities and that 8 issues for determination were distilled from the 8 grounds of appeal. The respondents brief was dated 17/3/08, filed on 18/3/08 and by leave of court deemed properly filed on 25/2/09. Mr. Gani Adetola-Kaseem SAN for the respondent, adopted and relied on the said brief in urging the court to dismiss the appeal and award costs to the respondent.

The eight issues for determination as formulated by the appellant and adopted by the respondent, are as follows:

“1. Whether from the oral and documentary evidence tendered, the Plaintiff has established its locus in bringing this action as an agent of a United States based company called Traveller Products and Guard Manufacturing Company of St. Louis Missouri United States of America? (Ground 1)

2. Whether the formulation by the trial judge of an issue for determination different from the issue canvassed before him and proceeding to give judgment on it did result in a miscarriage of justice .(Ground 2).
3. Whether the failure of the trial Judge to follow the principle laid down in the case of Makinde v. Akinwale (1995) 6 NWLR Pt. 399 occasioned a miscarriage of Justice? (Ground 3)
4. Whether the trial Judge was right in awarding damages to the Plaintiff based on common law principles when the Plaintiff action was brought or based on statue i.e the Trade Marks Act Cap 436 Laws of the Federation of Nigeria 1990? (Ground 6)
5. Whether the trial Judge was right in holding that the Defendant admitted infringing the Trade Marks of the Plaintiff when the Evidence led and the pleadings of the Defendant did not admit such infringement? (Ground 7)
6. Whether Exhibits Q – Q2 and R – R6 were documents made in contemplation and during the pendency of the proceedings and whether without making a finding on the issue, the trial Judge was right in awarding special damages based on the Exhibits? (Ground 4)
7. Whether with regard to the totality of evidence before the court, the Plaintiff has established its case? (Omnibus Ground).”

The resolution of (his appeal will be based on the 8 issues stated above.

ISSUE 1

The complaint of the appellant under this issue, is a challenge on the locus of the respondent to have instituted the action.

Learned counsel for the appellant made reference to paragraphs 1, 1A, 1B, 1C, 2, 3 and 4 of the statement of claim to the effect that the respondent is an agent of a foreign principal. Learned counsel made further reference to paragraphs 2 and 3, of the statement of defence where the appellant denied the averments. Learned counsel argued that by Exhibits ‘B’ and ‘D’ and the oral evidence of PW1 and 3, the respondent did not show the legal authority or competence to maintain the action either in its name or for its principal. Learned counsel contends that he who asserts must prove. In support, reference was made to the following cases: R.E.A.N. Plc v. ANUMNU (2003) 6 NWLR (Pt.815) 52 at 99, Owoniboys Tech. Services Ltd v. Union Bank Nigeria Ltd (2003) 15 NWLR (Pt.844) 545 at 584. Learned counsel argued that the respondent having not shown the authority of its principal defence that it can be held a traverse in the statement of claim will be deemed admitted or established. In support, reference was made to Egbeide v. Osula (2004) 12 NWLR (Pt.866) 86 at 131 C-H. Learned counsel urged that the appeal be allowed on this point.

The complaint under this issue as earlier stated is that the plaintiff had not established by evidence that it is the agent of Guard Manufacturing Company and Travellers Products of the USA (hereinafter called the Principal). The contention of the respondent is that the agency relationship is deemed admitted by virtue of having not filed an amended statement of defence to counter the newly introduced paragraphs 1A, 1B and 1C. A holistic perusal of the statement of defence, will however show that issues have been joined in relation to the agency relationship between the respondent and its foreign principals. The submission of the learned senior counsel as to the admission of paragraphs 1A, 1B and 1C is of no moment and is hereby discountenanced. At the trial the plaintiff, through its PW1 and PW3 and exhibits ‘B’ and D, gave evidence concerning its being the accredited sole agent of the principal as averred in the statement of respondent’s witnesses and exhibits B and D, to the effect that they do not establish any agency between respondent and the foreign principals. I have carefully studied the two exhibits tendered namely B and D. Exhibit D is a letter from Guard Manufacturing Co. of St. Louis Missouri dated September 12, 1988 and addressed to Mr. Samuel Digba – Adekoya of Saam Kolo International Enterprises and the last paragraph of the letter stated thus: