C. N. Ekwuogor Investment (Nig) Ltd. V. Asco Investment Ltd. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment)

The Respondent, who was Plaintiff at the court below, has for years carried on business mainly as importer and marketer of general merchandise particularly Lude Shoe Polish having been appointed an exclusive distributor and Attorney of Shanghai Light Industrial International (Group) Corporation Limited, the manufacturer and owner of the trade mark of the said polish. The registered proprietor of the trade mark is a Chinese company while the Respondent is domiciled in Nigeria.

The Respondent has a special Power of Attorney evidencing this transaction. It is the Respondent’s case as shown in his statement of claim that sometime in March, 1999, it came to its knowledge that the Appellant and some others were selling and passing off Lude Shoe Polish not of the Respondent’s distribution and not having any connection with the Respondent. Also, that the Appellant was selling at a lower price which led to substantial loss in the business of the Respondent. At the court below, there were more than one Defendant.

Based on the above facts, the Respondent filed a suit against the Appellant and others at the court below and in paragraph 12 of its statement of claim, the Respondent asked for the following reliefs:

“The Plaintiff claims as follows:-

1. A DECLARATION that the Plaintiff being the duty appointed sole distributor with Power of Attorney dated the 1st day of February, 1999 declared the lawfully appointed representative of the manufacturer of LUDE polish shanghai Light (Group) Corporation Ltd. in Nigeria, Togo, Republic of Benin and Cameroun.
2. A DECLARATION that by virtue of the power of Attorney dated 1/2/99, the contract agreement between shanghai Light Industries International (Group) Corporation Ltd., ASCO Investment (i.e., the Plaintiff herein and CRECEEDOR INTERNATIONAL CO. LTD., the Plaintiff is entitled to the sole distributor’s sale and marketing rights of the LUDE Polish.
3. That the 8th Defendant in particular to the Plaintiff the sum of N20 million being aggravated damages for loss of business occasioned by the sale, distribution and for importation of the fake imitation of LUDE Polish.
4. An order that the 8th Defendant pay the sum of N5million naira as general damages.
5. An order of perpetual injunction restraining the Defendants jointly and or severally either by themselves or their agents or those upon whose behalf the said Defendants are sued whether acting by themselves, their servants, privies or agents or any of them or otherwise howsoever from doing the following acts and that is to say.-

(i) infringing the trade mark/name “LUDE POLISH” product of Shanghai Light international (Groups) Corporation Ltd., registered under Chinese Law as No. 518660 and whose registration under Nigerian Trade Mark is TP28448/96/5.

(ii) Passing off or causing or enabling or assisting others to pass off the Plaintiff’s business and trade as so/e and exclusive distributor of LUDE Polish products in Nigeria, Republic of Benin, Togo, Ghana and Cameroun.

(iii) Passing off or causing or enabling or assisting others to pass off products purported to be “LUDE Polish” brand and not made, distributed or so/d by the plaintiff (the infringing product) and not being of the Plaintiff’s merchandise as the plaintiff’s product.

(iv) Importing, distributing, setting or offering for sale or supplying “LUDE POLISH” products, lot being products procured through the Plaintiff or with the Plaintiff’s consent.

(v) Against the Defendant’s jointly and severally and each of those upon whose behalf the Defendants are sued whether acting by themselves, their privies, servants or agents or otherwise howsoever, AN ORDER FOR DELIVERY UP UPON OATH to the Plaintiff of all “LUDE” Polish Products or any other brother to which the trade mark name “LUDE” is infringed or passed with all invoices, receipts and other documents pertaining hereto”.

The Appellant then filed a Preliminary objection via a Motion on Notice dated and filed on 3/12/01. In it, the Appellant prayed for an order:-

“dismissing or striking out the suit against the 2nd Defendant in that the same is incompetent, not maintainable, discloses no reasonable cause of action, is frivolous and vexatious and constitutes an abuse of the Process of the court”.

The grounds upon which the preliminary objection was anchored are that:-

“(i) The Plaintiff had no locus standi and so cannot maintain this action and the same is incompetent.