British American Tobacco (Nigeria) Limited V. Gallaher Limited (2016) LLJR-CA
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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
This Appeal is against the judgment of Archibong J, delivered on 28th May, 2012 in respect of the Appellant’s Dorchester Trade Mark RTM 62627 in Class 34 that it should be expunged from the Register of Trademark on ground of None use of the Trademark in Nigeria by the Appellant.
The Appellant being dissatisfied filed a Notice of Appeal dated 6th June, 2012 on five grounds.
The facts of this case is that the Respondent filed an Originating Motion on Notice dated 23rd July, 2010 for an order that the register of trademarks be rectified by the expunging therefrom the whole entry of trade mark No: 62627 from the register of trade marks.
The Appellant’s brief settled by Y. A. Kadiri, Esq. Y. M. Nwidaa Miss of Messer Jackson, Etti & Edu and is dated 12th May, 2014 and filed same date.
?The Appellant formulated 3 issues for determination thus:
“(a) Whether in view of the fact that there had been a prior pending action between the parties herein on the same issues and the same subject matter and whether in view of the rectification proceedings instituted by the Respondent at the Trademark’s
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Registry in respect of the registered trademark RTM 62627 Dorchester in class 34, the subsequent institution of the suit No: FHC/L/CS/900/2010 for the rectification of the same subject trademark amounts to an abuse of Court process.
(b) Whether the existence of pending litigation over the proprietorship of the “Dorchester” Trademark constitutes “special circumstance” precluding the Appellant from the lawful use of its registered trade mark RTM 62627 Dorchester in Class 34.
(c) Whether it was right for the Learned Trial Judge to have reached its final decision without taking into consideration the totality of the evidence canvassed by the Appellant in its Affidavit deposed to on the 6th of June, 2011 and Written Address dated 22nd February 2011 and as such has occasioned a gross miscarriage of Justice.”
?The Respondent’s brief of Argument dated and filed 22nd May, 2015 same was settled by Obatosin Ogunkeye, Esq. of Messrs Allan & Ogunkeye. Two issues were nominated for this appeal thus:
(a) “Whether the institution of the present action was an abuse of the judicial process by reason of the prior or pending existence of any proceedings before another Court or the
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Registrar of Trademarks?
(b) Whether on the evidence before the lower Court, trademark No: 62627 ought to have been ordered to be expunged from the register of trademarks?
(c) Whether the learned trial Judge failed to consider any issue raised and canvassed by the Appellant and if so whether his judgment ought for that reason, to be set aside.”
For the purpose of this appeal, I shall adopt the issue as formulated by the Appellant for the determination of this appeal.
On issue one; it is the submission of the Appellant that the lower Court erred in law when he held that the suit giving rise to the instant appeal did not constitute an abuse of Court processes.
In defining “abuse of Court/judicial process”, he referred to SARAKI v. KOTOYE (1992) 7 NWLR (Pt. 266) 156 AT 188; TOMTEE NIG. LTD v. FEDERAL HOUSING AUTHORITY [2009] 18 NWLR (Pt. 1173) PAGE 358 AT 376-377. He pointed to the Originating Processes as a determinant of a cause of action as held in OSIGWE v. PSPLS CONSORTIUM LTD [2009] 3 NWLR (Pt. 1128) 378 AT 999. He also referred to the Respondent’s suit at the lower Court vide suit no: FHC/L/CS/179/2005 British American Tobacco (Nig.) Ltd v. Gallaher Ltd &
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