Dike Geo Motors Limited & Anor. V. Allied Signal Inc. & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
M. L. GARBA, J.C.A.
This appeal is against the decision of the Federal High Court Lagos in its ruling delivered on 13/4/99 in Suit No. FHC/L./CS/59 1/95. The Notice of Appeal dated the 27/4/99 contains two (2) grounds as follows:-
“GROUND ONE
The learned judge erred in law when he held that “the present action is not frivolous, vexatious and an abuse of court process” when he ought to have dismissed the action for being frivolous, vexatious and abuse of the process of court.
GROUND TWO
The learned judge misdirected himself in law when he held that “the contention of the Defendant’s in this case appears to be hinged on the belief that the Defendants have a valid legal defence to the Plaintiffs’ action.”
Put briefly, the facts involved in the appeal are that Respondents herein filed an action before the lower Court in which they made claims of infringement of trade marks and passing off against the Appellants herein.
In the course of the trial, the Appellants filed an application praying for the dismissal of the Respondents’ claims on the ground that they are frivolous, vexatious and an abuse of the lower Court’s processes. The basis of the said application was that the trade mark complained of was registered in name of another Company on 8/10/96 under NO.53200 in Class 4. A Copy of the registration certificate as well as notice of opposition by the 1st Respondent to that other Company’s Dom Frank Nigeria Ltd., application were attached to the affidavit in support of the application.
The Respondents filed a counter affidavit and after a consideration of the evidence as well as addresses of counsel, the lower Court dismissed the ‘Appellant’s application.
Briefs of arguments were settled at Appellant’s brief, Respondents brief and Appellant’s reply brief in accordance with the Rules of Court.
At the hearing learned Counsel adopted their respective briefs and urged us to find in favour of their clients pursuant to their positions therein.
In the Appellant’s brief dated 23/6/04, and deemed properly filed on 29/6/04 though filed on the 25/6/04, the following issues were set out as arising for determination in the appeal:-
“1. Whether the Plaintiffs claim for infringement could be said to be viable from the period the Plaintiffs initiated opposition proceedings in accordance with Section 20 of the Trade Marks Act Cap 436 LFN 1990 to the Application made for the registration of the trade Mark Allied & Device under NO.TP18856 in class 4 which culminated in the Registration under No. 53200 in class 4 in the name of Domfrank Nigeria Limited.
- Whether the entire claim of the Plaintiffs against the Defendants has become frivolous vexatious and an abuse of the process of the Honourable Court by reason of the opposition and rectification Proceedings taken by the Plaintiffs pursuant to Section 20 and 38 of the Trade Marks Act Cap.436 Laws of the Federation of Nigeria 1990.”
These issues were not, as is the usual and diligent practice in good brief writing, tied or related to the grounds of appeal contained on the Appellant Notice of Appeal. The need to so do cannot be over emphasised as the practice enables the Court to readily identify from which ground/s of appeal each issue formulated by the parties to an appeal, arises.
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