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)

This case is not authority for saying that judgment should be handed down in favour of the plaintiff on the platter of gold. The plaintiff will not be entitled to judgment merely because, according to the learned trial Judge, defendants abandoned its defence by defaulting to lead evidence in support there for. It is authority for saying, however, that the case would be determined on the evidence solely produced on behalf of the plaintiff, the respondent herein. The court would only be bound to accept unchallenged, uncontroverted and unrebutted evidence of the plaintiff if it were cogent and credible. See Adeyemi v. Bamidele (1960) 1 All NLR 31, 36; Akhionbare v. Omoregie (1976) 12 SC 11, 18; (1976) NSCC 692, 695. The court would not accept a piece of evidence which is not material and of no probative value merely because the only evidence before the court is that of the plaintiff.

Applying these principles to the nitty gritty of the judgment of the learned trial Judge, it is apt to consider them under the 3 issues the learned trial Judge identified for determination. The issues are set out immediately hereunder:

“1. Whether the plaintiff, based on the totality of the evidence adduced is the owner of the patent No. 12024 dated 9/11/94.

2. Whether the statutory right of the plaintiff in the said patent has been breached or infringed by the defendants.
3. Whether the infringement (if any) has occasioned damages to the plaintiff.”

He then resolved the three issues serially. I propose to follow the same pattern he adopted.

In resolving the first issue, learned trial Judge, after reading paragraphs 8,9,10 and 11 of the statement of claim, reasoned inter-alia as follows:

“Furthermore, the plaintiff through PW2 said-

‘I know the company Boaty Company Limited. Boaty Company Limited is the technical partner of the plaintiff. We come by exhibit Al and A3 and A4 because of the assignment of exhibit A1 by Boaty Ltd. to us. We came by exhibit A1 because of our close working relationship with Boaty Company Ltd. as our technical partners. We invented the technology upon which the patent exhibit A1 was granted.’

These averments were not denied by the defendants by calling evidence. What the defendants did was just to make a general traverse in paragraphs 2 and 5 of the amended statement of defence. They averred that:-

2. The defendants deny paragraphs 2, 4,5,6,7,8, 9, 10, 11, 12, 13, 14, IS, 16, 17, 18 and 19 of the statement of claim and will at the trial of the action put the plaintiff to the strictest proof thereof.
3. In further denial of paragraphs 6, 7,8,9,10, 11,15 and 16 the defendants aver that the 1st defendant has been in the production of ile fabrics in Nigeria since the early seventies and the company has been producing ile fabric with printing on both sides since 1980. No evidence was led on these pleas and it is trite that pleadings not supported by evidence go to no issue.” (Italics mine)

Contrary to the finding of the learned trial Judge the plaintiff’s second witness while being cross-examined at p.152C said:

“I am aware that duplex printing has been available since 1980. I am aware that the 1st defendant had been employing Rotary Printing since 1967. In Duplex Printing, the two sides are printed simultaneously but not with equal effect.”

Second plaintiff witness testified further, still under cross-examination, as follows at p.153D:

“The product of the defendant exhibit C is a quality material. The 1st defendant is one of the leading ile producer in this country. We started producing wax in 1993. The plaintiff company was incorporated in 1993. The patent was assigned in 1994. Arewa began to produce wax in 1995. They are not using copper roller. I am not aware that the “trade marks” Super Print is registered in favour of Arewa ile Plc. I am aware it has been producing super print since 1920’s. We started producing print in 1993. We do not have the permission of Arewa ile Plc. to produce it.”

It seems to me, from the con of this passage, the words “super print” and “super wax” are used interchangeably. It follows that the plaintiff witness was not telling the truth when he placed the date of manufacture of super wax or super print by the first defendant at 1995. This was a deliberate attempt to show that his own company, the respondent herein had been producing super wax or print before the first defendant. The totality of this witness testimony proves the appellants averment that it has been engaged in the business of producing ile fabric with printing on both sides which is the same thing as duplex printing since 1980. Second plaintiff witness admitted such printing had been around since 1980. There is, therefore, evidence emanating from the second plaintiff witness to the effect that first appellant had been in ile business since 1967 and had been printing wax since 1980. The figure” 1920s” is most likely a typographical error or slip of pen lapus calami of the figure “1980s” because Arewa ile Plc. itself was not in existence in “1920s” as deposed to by respondent. The learned trial Judge, therefore, wrongly held that there was no evidence in support of the averment. The pieces of evidence coming from second plaintiffs witness as it were is an admission of the appellants’ plea. It is elementary principle of law that what is admitted does not require further proof. It is an elementary principle of our law, which no longer requires citing of authorities, that, in civil cases, what is admitted requires no further proof. If a particular averment of a party is admitted, there will no longer be an onus on him to prove what has been admitted by the opposite party. See section 75 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990; Onobruchere & Another v. Esegine (1986) 1 NWLR (Pt. 19)799, (1986) 2 SC 385, 397; T. L. Owosho v. M. A. Dada (f984) 7 SC 149, 163 – 164 and N. B. N v. P. B. Olatunde Co. Nig. Ltd. (1994) 3 NWLR (Pt. 334) 512, 526.

Further, under the same first issue framed by the learned trial Judge, the learned trial Judge reasoned as follows:

“Mr. Olomal a submitted that “exhibit A1 was issued in favour of Boaty Company Ltd. The defendant deny that the same was assigned to the plaintiff. An examination of this exhibit together with exhibit A5 and A3 shows that the alleged process was actually developed by a Kong Sung Wong and then assigned to Boaty Company Ltd”. This is a submission of learned counsel for the defendant which cannot by any stretch of imagination be substituted for evidence. The submission cannot stand on its own. It has to be based on the pleadings and evidence led in the court by the defendant or in appropriate cases by the plaintiff on whether counsel’s submission can take the place of evidence I refer to the case of Buhari v. Takuma (1994) 2 NWLR (Pt. 325) p.183 at 186 …”

It is doubtful if the learned trial Judge understood the purport of the submission of the learned counsel for appellants, Mr. Olomola and if he did respectfully learned trial Judge was adroit but not candid.

Learned counsel for the appellant, in the portion of his submission, which the learned trial Judge copiously quoted, contended that, in exhibits A3 and A5, which respondent tendered and was admitted, the process in dispute, in this appeal, was developed by Kong Sang Wong who assigned it to Boaty Company Limited. The learned trial Judge wrongly declined to examine the documents on mundane and tendentious excuse that the submission was made in the air. Exhibits A3 and A5 on which the said submission was predicated are already in evidence. The learned trial Judge would not be entitled to hold that the submission was not based on pleadings and evidence unless one or both documents are examined and do not contain the assertion or the basis of the learned counsel for appellants’ submission. But the learned trial Judge was reluctant or too much in a hurry to reach a predetermine conclusion that he failed or neglected or refused to examine either documents.

I have looked at exhibits A3 and A5 which are respectively “Assignment of Invention” and “Convention and an application for a patent”. In exhibit A3, Boaty Company Limited describes itself as inventor of the invention entitled-

“A METHOD OF AND APPARATUS FOR IMPREGNATING A ILE WEB WITH AN IMPERMEABLE MEDUIM”.

Apart from claiming title to the invention, I cannot find any material on exhibit A3 justifying the submission of the learned counsel for the appellants in the judgment of the learned trial Judge set out above, but it is not completely irrelevant to the determination of the suit. I propose to return to exhibit A3 later in this judgment.

However, in exhibit A5, the respondent’s alleged assignor, Boaty Company Ltd., made a summersault or confessed that it was not the inventor of the invention. In paragraph 2 thereof respondent’s assignor stated:

“We are (e) the assignee of the said (d) Kong Sang Wong.”

It thus follows that the alleged process was developed by one Kong Sang Wong and assigned to Boaty Company Limited. It therefore follows that the plaintiff’s second witness was respectfully lying when he testified that:-

“We came by exhibit A1 because of our close working relationship with Boaty Company Ltd. as our technical partners. We invented the technology upon which the patent exhibit A1 was granted when I say we, I mean the plaintiff company and Boaty Company Ltd. Exhibit Al has not been registered in favour of any company in Nigeria. It has not been assigned to any other company … ”

He was equally not telling the truth when he further stated that:

“We invested heavily in terms of both human and Material resources in inventing exhibit A1. Human means ‘man hours’ spent on the research project to perfect the techniques, material resources involves the financial resources.”

(Italics mine)

Since neither the respondent and Boaty Company did invent the process, contrary to the pleadings and evidence led thereon, it follows that the respondent failed to establish its case. The statement in paragraph 2 of the application form exhibit AS is directly and materially in conflict with the evidence of the second plaintiff’s witness. The learned trial Judge failed to resolve the conflicts because he refused or neglected to advert his mind to the contents of exhibits A3 and AS to which he was referred.

Exhibit A3 referred to in the passage recited above talks about the need for the respondent to register the assignment of the patent.

The learned trial Judge did not look at exhibit A3 because he considered the submission of the learned trial Judge before him was not supported by evidence. If learned trial Judge had considered the submission and examined exhibit A3 he would have found the terms of the assignment to the respondent which is as follows:

“NOW THEREFORE, I/we hereby ASSIGN the said invention to THE ASSIGNEE(S) in so far as Nigeria is concerned, together with the right to apply for Letters Patent in his/her own name and I/we THE ASSIGNEES hereby accept the ASSIGNMENT.” (italics mine)

There was no evidence before the learned trial Judge that respondent applied for letter patents in its own name as agreed upon in exhibit A3. Having not done so can it validly claim as it did under a patent issue to another person, exhibit A1. I do not think so. The right to apply for letters patents in its own name is not a mere moral adjuration. It is a duty, under section 24(1) of Patents and Design Act, Cap. 344 of the Laws of the Federation of Nigeria, 1990, to register assignment, transfer or held in joint ownership of a patent.

An assignment or transfer under sub-section (1) of section 24 shall by virtue of sub-section (3) of section (24) thereof have no effect against third parties unless it has been registered and the prescribed fees paid. There is no evidence of such registration and payment of the requisite fees before this court and the trial court. In the absence of both vital evidence, it seems to me that the respondent’s cause of action against the appellants is inchoate because in the absence of registration of the assignment to the respondent the assignment would have no effect on the appellants. Exhibit A4 convey the fact of registration of a patent. But the registration discussed on exhibitA4 touches upon the patent No. 12024 granted to Boaty Company Limited and not one granted to the respondent.

The finding of the learned trial Judge which learned counsel relied heavily upon in his brief to the effect that the second to fourth appellants left the respondent without resigning their respective appointments under exhibits B1,B2 and B3 is erroneous. The learned trial Judge was influenced to come to that conclusion merely for the failure of the appellants including the second, third and fourth appellants, as defendants, to go into the witness, box to controvert respondent’s case. What is there in the respondent’s case that demands challenge? Respectfully there is nothing, even on the showing of the respondent itself. According to the respondent’s second witness as well as exhibits B 1,B2 and B3 the three appellants were on contract appointments for one year which had since expired.

Second plaintiff witness conceded that the same was not renewed.

So, at the time of their departure, there was no contractual relationship between them on the one side and the respondent on the other side from which they could or would be obliged to resign. The finding to the effect that they abandoned the respondent without resigning is perverse as it flies in the face of the evidence adduced before him.

In any case, can the respondent be taken seriously? I do not know of any reasonable and responsible organisation that would trust its valuable trade secret as it wants us to believe into the hands of persons who were not on permanent but only on one year contractual appointments. Respondent’s conduct in this regard puts into serious doubt its possession of any special process.

On his issue 3, learned trial Judge, after his usual practice of pushing the burden of proof on the defendants, the appellant herein, went on to reason as follows:

“Furthermore, the plaintiff gave evidence that it is using the technique in exhibit A2 in producing its ile materials. Compare also the evidence of PW2 with that of DW1 where the said PW2 said- “Even if they had bought the machine from China the technology was stolen. It is not true that the machine (exhibit A2) is readily available in the open market. You cannot get the type of our machine using this technology from any where in the world; one has to get different parts from different places then couple the machine for the purpose of this technology …. ” This evidence on how machine is constructed is not denied. I think this evidence carries more weight than the one proffered by the defendants though DW1 when he simply said the machine is available in the market. He has not told us whether he bought one for any purpose or where he saw it being sold. He has not said where it can be found. Since proof in civil cases is on the balance of probability I accept the evidence of PW2. It is therefore my opinion that exhibits A1 and A2 have come within the ambit of section (1)(i)(a) of the Patent and Designs Act, Cap. 344, Laws of the Federation, 1990.” (Italics mine)

Learned trial Judge was in serious error when he preferred the testimony of second plaintiff’s witness who admitted that he was not an expert to one adduced by an expert. The evidence he admitted has been discredited under cross-examination. Exhibit A5 showed that the respondent and its assignor are not the inventor of the subject of the patent but one Kong Sang Wong who assigned it to Boaty Company Limited the assignor of the respondent. It follows that the claim of second plaintiff witness that it invested heavily both in human and material resources before inventing the process detailed in exhibit A2 was false. It is equally clear that neither respondent nor its technical partner invented the process. It was invented by Kong Sang Wong and there is nothing before the learned trial Judge that Kong Sang Wong had not, before or after assigning the right to respondent’s assignor, assigned to any other organization which had gone into its production. The defendant’s only witness, whose evidence was rejected, on mundane excuses told the court that the same process was on sale in India and China. He told the trial court he was an industrial chemist and industrial engineer. He also told the court that he was licensed to practice as chartered ile Technologist and chartered chemist. He was licensed by the ile Institute and the Royal Society of Chemistry in the United Kingdom.

He told the court that he was at the material time working with Nigeria Industrial Development Bank Kaduna as Principal Industrial Engineer and had testified in four different English courts in Manchester, Glasgow, Fleetwood and Dortmund Germany. Dr. Kenneth Olabode Fatinikun then introduced his testimony as follows:

“In my opinion exhibit A2 is describing a process of producing ile wax print by a technique which is a

mechanized version of traditional wax printer.”

He went on to testify that it was not correct to say that the technology defined in exhibit A2 did not exist in Nigeria before 9/11/94 and that Speco Mill in Ikeja used the same process as far back as 1987.

The witness went on to say that:-

“As at November, 1994 the process contained in exhibit A2 cannot be described as new. I do not agree

that before 1994 only copper roller method was used all over the world … In my opinion, the copper roller technique has not been completely phased out but it is true to say that as at 1994 in Nigerian Industries there were so many participants in the wax printing trade using the rotary screen technique along side the copper rolling method.”

The witness went on further to testify that:-

“If you examined wax material printed by copper roller method and rotary screen printing, you can hardly know the difference unless you are an expert. Exhibit D does not have any distinguishing characteristic as to tell you by which method it was made. Exhibit C1 does not have any distinguishing characteristic and could have been produced by any method. Exhibit C also does not have any distinguishing characteristics. From exhibits C1 and C and D there is no way of telling which one of them was produced by a technique of copper roller or Rotary screen printing in the wax priming industry.” (Italics Mine)

Plaintiff witness in his evidence when he was shown exhibits C and C1 said:-

“I bought exhibit C1 from the open market. There is no difference from exhibits C and C1 apart from the names of the manufacturer.”

Under cross-examination and when he was shown exhibit D, second plaintiff’s witness stated as follows:-

“It is not possible to know whether exhibit D was printed by the old technology. The name on the label will be manufacturer of the fabric.”

The witness for the plaintiff identified a piece of wax material manufactured by Nichemtex which was admitted as exhibit E. The second plaintiff witness is Shehu Mairiga and is the managing director of the respondent. He testified that he has been in ile industry since 1967 with a B.Sc Degree in Accounting and M.Sc Business Administration both from Ahmadu Bello University. He has no special training in ile Technology. He has spent most of his time in the company in doing administration or finance. He has never for a day worked in the ile section.

From the foregoing respectfully, the defence only witness does qualify as an expert while the second plaintiff witness is not. See section 57(1) of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990 which defines “expert”:-

“57(1) When the court has to form an opinion upon a point of foreign law, native law or custom, or of science or art or as to identity of handwriting or finger impression, the opinions upon that point of persons specially skilled in such foreign law, native law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts.

(2) Such persons are called experts.” (Italics mine)

Before a person qualifies as an expert under the provisions of the Evidence Act, Cap. 112 he must be skilled in the field in which he was rendering opinion. See Ogiale & others v. Shell Petroleum Development Ltd. (1997) 1 NWLR (Pt. 480) 148; Wambai v. Kano N.A. (1965) NMLR 15; Shell v. Otoko (1990) 6 NWLR (Pt. 159) 693;Azu v. State (1993) 6 NWLR (Pt. 299) 303, 311. The knowledge and experience of the first defence witness shows that he could hold his own ground in the realm of ile technology. The evidence he led equally showed that he was skilled in the trade. The learned trial Judge was merely goaded to reject his testimony on grounds which are not valid. There is nothing saying that a witness in a civil case must be subpoened before he qualifies as a truthful witness. A party in a civil case is entitled to bring to court unaided his witnesses.

There is also no law requiring him to sign his curriculum vitae. The case of Tsalibawa v. Habiba (1991) 2 NWLR (Pt.174) 461, 475 – 77 cited in the respondent’s brief is not relevant. There is requirement to sign a judgment but as a matter of practice curriculum vitae are invariably not signed. The first defence witness was not cross-examined to ascertain the time he prepared his curriculum vitae. It is therefore not open to the respondent and the court to castigate him for preparing it for purpose or anticipation of this case contrary to the provisions of s. 91(3) of the Evidence Act, Cap. 112.

Assuming his curriculum vitae were caught by the provisions of section 91 of the Evidence Act, his evidence viva voce remains unchallenged, uncontroverted and unrebutted. It was also supported by the plaintiffs second witness in material particulars. The defence was equally lampooned on his age even though the age at which he commenced his primary education was not contradicted nor challenged. The fact that some people attained the age of Metusselah in the good old days before going to school did not rule out exception and the only defence witness, Dr. Fatinikun could be an exception.

It is beyond controversy that exhibits C, C1, D and E1 could have been produced by the respondent’s alleged process or by the older copper roller method. Neither the second plaintiff witness nor the defendant’s only witness could identify or distinguish the process applied in the production of any of the products. It follows that the process for making exhibits C and C1 remained unproven.

Further more, the respondent case was that he was the only ile manufacturer producing by its process and that first defendant alone stole its process and thereby flooded the market with the goods which provoked this action. It seems to me that its case that it was the only party seized of that method was punctured on tendering of the samples, exhibits D and E produced by a company or companies other than the respondent. Its case was further dented by the evidence that there is no means of knowing whether exhibits C, C1, D and E were products of the traditional method which is conceded to the first appellant and the modem mechanized process which he claimed to be a new invention or innovation by its witness.

To succeed, the respondent must do better than it has done. It has to produce evidence that the appellants have stolen its process and used them to produce the goods he saw in the market. It is not sufficient to predicate its action on a mere conjecture to the effect that the market was flooded with printed wax material similar to its own but were not produced from its own factory. It may have to engage in some espionage to prove its case.

The claim herein being one of process or method and not one of product, it is incumbent on the respondent to adduce evidence showing that first appellant adopted a process similar to its own and that second, third and fourth appellants assisted or abetted first appellant in the alleged infringement of the patent, exhibit A1 and A2. There is a basic distinction between a product claim and a process claims. See W. R. Carmish on Intellectual Property: Patents Copyright, Trade-marks and Allied Rights, 4th Edition, Sweet and Maxwell at p.169 cited in the appellants’ brief of argument. There is, nevertheless overlap between them. A product claim consists of claim to a thing or an article or goods while the latter comprises of activity or method. A product produced by a process gives monopoly to the product when made with a particular process or method or means and when the product is patentable but in the instant case wax print is not new and, therefore, not patentable.

I agree with the learned counsel for the appellants that the Patents and Design Act, Cap. 344 takes cognizance of the differences between a way or method claim and a product claim in section 25 of the Act which states on infringement that:

“If (a) a patent has been granted in respect of a process for the manufacture of a new product and (b) the same product is manufactured by a person other than the patentee, the product shall in the absence of proof to the contrary be presumed to have been manufactured by the process.

In this case, the product of the patentee the wax Print will not be covered by section 25(3) of the Act the same having been produced by earlier or traditional process, copper roller, as testified to by second plaintiff witness and the first and only defence witness. The learned trial Judge therefore hastily applied section 25(3) of the Act when he found that “by virtue of section 25(3) of the Act the court in the absence of any other proof to the contrary is enjoined to presume and hold that exhibit C1 had been made or produced or manufactured by the same process with exhibit C of the same process listed out in patent No. 12024.” As it has been demonstrated on the showing of even the respondent’s second witness there is “other proof to the contrary”. The presumption is therefore rebutted.

The first defence witness testified to the effect that it was difficult to determine when looking at the exhibits or fabrics the process by which they were made. He also stated that there were other methods or techniques (copper roller and roller screening) of producing the fabrics. Second plaintiff witness, under cross-examination, identified the makers of the samples shown to him only by the label printed thereon and not by a study of the ile fabrics put in evidence. He contradicted their statement of claim, under cross-examination to the effect that it was impossible to distinguish the method of producing the fabrics by merely looking at them. It was common ground that the same fabric or products can be produced by either copper roller or by a process similar to that described by the respondent in its claim.

There is merit in the submission of the learned counsel for appellants, in their brief of argument, that where a process is in dispute in a patent the onus of proof that they were indeed made by that process lies squarely on the party who asserts, in this case, the plaintiff. He relied on Cartsburn Sugar Refining Co. v. Sharp 1RPC 181. I agree with him that although the learned trial Judge recognized in his judgment that the case deals with infringement of patent in a process by calling in aid section 6(1) of the Patent and Design Act but failed to hold that the act of applying “the process or doing in respect of a product obtained directly by means of the process” was not proved by the plaintiff, the respondent herein on whom the burden of proof laid squarely. Learned trial Judge’s finding that the case falls in this category bearing in mind the claim of the plaintiff was perversed as his findings was not based on the evidence before him.

In the case of passing off, all one needs to do is amplify the similarity of substance or product by looking at it, where the method or process is involved the particular method adopted in the production must be proved. That has not been done in the instant case.

It therefore seems to me that this court as well as the trial court would not be competent to consider the invalidity of the patent raised by the defendants in their statement of defence or even suo motu.

The patent in issue in this court and in the trial court is exhibit A1 which was issued to Boaty Company Limited, a party which is not before the court. If the assignment had been registered its validity or otherwise could have properly been put in issue or impunged and tested. But the patentee of the patent put in issue herein is not before the court to defend his right to or interest therein. In other words, the action as presently constituted, without joining Boaty Company Ltd., the owner of the patent, is wrongly constituted for the purpose of invalidating the patent. I am not unaware that section 4(4) of the Patents and Design Act (supra) provides that the patents are granted at the risk of the patentee and without guarantee of their validity as contended by learned counsel for appellants in the appellant’s brief but the test through litigation of the validity should be done through appropriate parties. The proper party to my mind is Boaty Company Ltd. in whose favour exhibits A1 was issued. The respondent, in my respectful view, had no locus standi to bring the action as he had no assignment of the patent to it not talk of its complying with the provisions of section 24 of the Act, Cap. 344.

The appeal succeeds and it is allowed. The respondent’s claims on the issues contested before us fails and is dismissed. All the orders of the learned trial Judge including the order as to costs are hereby set aside. I award costs assessed at N5,000.00 in favour of the appellants and against the respondent.

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Other Citations: (2002)LCN/1292(CA)