Arewa Textiles Plc & Ors V. Finetex Limited (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

In the Federal High Court, sitting in Kaduna, the plaintiff instituted an action for infringement of its registered patent RP 12024 in respect of a “method and apparatus” of producing ile material, claiming two declaratory reliefs, a perpetual injunction and general damages against the defendants jointly and severally for the alleged infringement of its patent. It sought general damages of N50,000,000 from the first defendant and N 10,000,000.00 from each of the second to the fourth defendants.

Pleadings which were ordered and exchanged were settled at a statement of claim and an amended statement of defence. The plaintiff called two witnesses in support of his claim while the defendants called only one witness. Learned counsel for both parties addressed court in writing. The learned trial Judge, in a reserved and considered judgment, acceded to all the reliefs claimed in the plaintiffs’ claim including monetary award of N5,000,000.00 against first defendant as well as N1,000,000.00 against each of the remaining three defendants.

All the defendants, being aggrieved and dissatisfied with the judgment, appealed to this court on a notice of appeal containing 3 grounds of appeal. The notice of appeal was subsequently amended with the leave of the court granted on 22nd November, 2000.

Pursuance of the amended notice of appeal, carrying 8 grounds of appeal, briefs of argument were duly filed and exchanged. The appellants’ brief was deemed as properly filed and served on 26th June, 2001 while the respondent’s brief was filed within the prescribed 45 days from service of the appellants’ brief of argument on it on 31st July, 2001.

In the appellants’ brief, three issues were formulated while respondent framed two issues for determination in its brief of argument. In my respectful opinion, the main issue calling for determination in the instant appeal is whether respondent’s case preponderated. In other words, whether respondent proved its case that the appellants breached its right to a patent, brought against them.

The respondent, as it was earlier observed, in this judgment, sought two declaratory reliefs in addition to an injunction and damages against the appellants. The respondent’s case was therefore, essentially for declaratory orders which could only succeed on the respondent’s evidence and not on the admission or weakness of the defendants’ case. It is common knowledge that an action for declaration is a procedural device for ascertaining and determining the respective rights of the parties. As Megarry, V.C. said in Metzger v. Department of Health & Social Security (1977) 3 All ER 444 at 451 that:

“The court does not make declaration just because the parties to litigation have chosen to admit something. The Court declares what it has found to be the law after proper argument not merely after admission by the parties. There are no declaration without arguments; that is quite plain.” (Italics mine)

See also Quo Vadis Hotels and Restaurants Limited v. Commissioner of Lands Mid-Western State & others (1973) 6 SC 71, 76 and Agbaje v. Agboluaja (1974) 1 All NLR 21, 26.

It is settled as the learned counsel for respondent submitted and the learned trial judge found that, where evidence given by a party to any proceedings was not challenged or controverted by the opposite party who had the opportunity to do so, it is always open to the court seized of the proceedings to act on the unchallenged evidence before it – vide Odulaja v. Haddad (1973) 11 SC 357; Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79, 81 – 2; Boshali v. Allied Commercial Exporter Limited (1961) All NLR 917, (1961) 2 SCNLR 322 per Lord Guest; Omoregbe v. Lawani (1980) 3-4 SC 108.

It is equally trite that the defendants having abandoned their defence, the evidence of the plaintiff stood unchallenged, unrebutted and uncontroverted. If a plaintiff adduces evidence in terms of the pleadings and in proof of it and the evidence is not rebutted the plaintiff is entitled to judgment. See Nwabuoku v. Ottih (1961) All NLR 187; Okechukwu v. Okafor (1961) All NLR 685; Akanni v. Makanjy (1978) 11 – 12 SC 13; Etiko v. Ayoyewun (1959) 4 FSC 129; Kehinde v. Ogunbunmi (1968) NMLR 37 and Omoboriowo & others v. Chief Ajasin (1984) 1SC 206, 207, (1984) 1 SCNLR 108. But it must be noted that the plaintiff’s case, the respondent, in the instant appeal, must succeed on its own strength and not on the weakness of the defendants’ case although where the defendant’s case lends supports to the plaintiff it must be able to draw succour from it. See the case of Kodilinye v. Odu (1935) 2 WACA 336, a decision of the erstwhile West African Court of Appeal.

It was cited with approval in Aiyedun T Jules v. R. Ajani (1980) 5-7 SC 96; Akinola v. Olowu & others (1962) 1 SCNLR 352, (1962) 1 All NLR 224, 225; Atuanya v. Onyejekwe & another (1975) 3 SC 161 and Ibeziako v. Nwagbogu (1972) 1 All NLR 113, 114 (1972) 2 ECSLR (Pt.1) 335.

The claim of the respondent cannot be sustained by placing reliance on the appellants’ failure to adduce evidence in Support of their defence. The consequence of the appellants’ alleged default in adducing evidence in support of their defence or pleadings is that the fact pleaded therein are deemed abandoned. See Balogun v. Amubikahun (1985) 3 NWLR (Pt. 11) 27; Okefi v. Ogu (1996) 2 NWLR (Pt. 432) 603 and Aliyu v. Adewuyi (1996) 4 NWLR (Pt.442) 284. It is therefore, not clear how an abandoned facts can assist or provide support to the respondant’s case. There is no substance in the submission of the learned counsel for the respondent that the respondent was entitled to the judgment of the court on the strength of his evidence, which ought to be believed and accepted by the court merely because the defendants failed to lead evidence in support of their defence: See Hammed A. Toriola & another v. Mrs. Olusola Williams (1982) 7 SC 27, (1982) All NLR 88. At page 205 of the report the Supreme Court said:

“This submission overlooks the position in which the appellants placed themselves by resting their case on that of the respondent i.e. by in effect submitting the respondent as plaintiff failed to make out a prima facie case and by electing in consequence not to call evidence in support of their own case. The position in such a situation is of course, that the appellants are bound by the evidence in support of the case for the respondent qua plaintiff and the case must be dealt with on the evidence as it stands.” (Italics mine)