Densy Industries (Nig) Ltd. V. Sunday Uzokwe (1998)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A. 

This matter has to do with a design. It bears registration No.4464. The appellant, as plaintiff, asked for two declarations in the lower court: (1) That the 1st defendant (now respondent) has not acquired any exclusive privileges or rights in Nigeria in the design. (2) That the design is invalid being neither new nor original and rectification of the register of designs by the 2nd defendant.

After hearing evidence from the parties, the learned trial Judge dismissed the case of the appellant. He said in the last paragraph of the judgment:

“After a careful consideration of the evidence adduced, the submissions of the learned counsel for both sides and the case law I have come to the conclusion that the failure of the plaintiff to tender the industrial design applied in the production of Exhibits 3A and 3B is fatal to its case. The plaintiff has therefore not proved that the 1st defendant’s registered design No.4464 is not new. Consequently the suit is hereby dismissed with N500.00 costs to each of the defendants”.

Dissatisfied, the appellant filed an appeal. As usual, briefs were duly filed and exchanged. The appellant formulated issues for determination. In the course of arguing the brief, learned counsel for the appellant. Mr. O. Oyewole, sought leave of court to withdraw issues (b) and (c). This court struck out the two issues accordingly. The two issues left for determination in this appeal are:

“(a) Whether Exhibit 13 (design No 4464) was new at the time it was registered, in compliance with the requirements of section 13(1)(a) of the Patents and Designs Act Cap. 344. of the Laws of the Federation of 1990 the Act”) …

(d) Whether the findings of the trial Judge that the appellants had failed to prove that registered design No.4464 was not new at the time it was registered can stand in stand in view of the probative and overwhelming evidence adduced before the lower court.”

On the other hand, the respondent formulated the following four issues for determination.

“(i) Whether or not Exhibit 13 (registered design No.4464) was new at the time it was registered.

(ii) Whether the rights conferred on the registered owner of an industrial design by section 19(1) of the Patents and Design Act are rights which can be enjoyed by the respondent in his business name.

(iii) Whether the respondent is the registered owner of exhibit 13.

(iv) Whether the trial Judge was not correct in holding that the appellants have failed to prove that the registered design No.4464 was not new at the time it was registered.”

Before learned counsel for the appellant argued the brief, he urged this court to discountenance paragraphs 4.10 to 4.19 of the brief. These were accordingly struck out. Dealing with issue (a), learned counsel called the attention of the court to section 13 of the Patents and Designs Act, 1990 and contended that it is clear from the provisions of section 13(3) that the presumption of novelty or newness created under section 13(2) can be rebutted by credible evidence that the design has been made available to the public before the date of application for registered.

Referring to the evidence of Pw1 and Pw2, learned counsel submitted that since there was no contradiction thereof. They are admissible and acceptable in law.