Duwin Pharmaceutical and Chemical Co. Ltd. V. Beneks Pharmaceutical and Cosmetics Ltd. & Ors (2008)
LAWGLOBAL HUB Lead Judgment Report
A.M. MUKHTAR, J.S.C.
On a motion ex parte brought by the appellant against the defendants who are now the respondents the learned trial Judge of the Federal High Court holden in Lagos made amongst others the following interim orders:
“(1) That leave is hereby granted to the plaintiff/applicant to sue the defendants/respondents on their own behalf and as representing all members of the class defined as engaged in the trade or business of selling or offering for sale and/or manufacture of a dermatological preparation called “HOT MOVATE GEL” purporting to be a product of the plaintiff by adopting a trade mark, get up or/and package design similar to and capable of being offered for sale as the applicant “movate” cream.
(2) That the defendants/respondents and each of those on whose behalf the defendants/respondents are sued whether acting by themselves or by their servants or agents or otherwise howsoever are hereby restrained pending the determination of the motion on notice for
interlocutory injunction filed on the 25th day of February, 1997 or further order from doing or authorising the doing of the following acts or any of them namely:-
(a) passing off or attempting to pass off or causing, enabling or assisting others to pass off a pharmaceutical preparation Known as “HOT MOVATE GEL” not manufactured at the applicant’s instance or of its merchandise as and for the “MOVATE CREAM” or goods of the applicant by the use or goods of the applicant by the use or in connection therewith in the course of trade of the applicant’s trade mark or adopting the distinctive get-up, package design or label identical or similar in all essential details to that of the applicant’s “MOVATE CREAM” or any colourable or deceptive imitation thereof without duly distinguishing such trade mark, get-up, or label from those of the applicant or by any other means
(b) manufacturing, or causing to be manufactured for them, importing, selling or exposing or offering for sale or supplying or inviting offers to acquire or distribute for the purpose of sale any pharmaceutical dermatological preparation in particular “HOT MOVATE GEL” with any package, get-up, label or tube, bearing the words “HOT MOVATE GEL” or “MOVATE” or any other words so closely resembling the applicant’s trade marks in particular “MOVATE GEL” registered as No. 52632 or “TOP MOVATE” registered as No. 52623 as to be calculated to lead to the belief that the preparation (“HOT MOVATE GEL”) not of the applicant’s manufacture or merchandise are products of the applicant,
(c) infringing the applicant’s copyright in the registered design No.5456 in respect of the applicant’s registered trade marks known as “MOVATE GEL” and “TOP MOVATE” “TOPSOVATE”, “TOPVATE” their get-up, label and package design.”
Then on 2/4/97, the defendant filed a motion on notice for the following orders:-
“1. AN ORDER discharging the order of this Honourable Court made on the 3rd day of March, 1997 on the grounds of material misrepresentation and failure to make full and frank disclosure.
- AN ORDER striking out the name of the 3rd defendant in this case on the grounds that he is merely an agent of a disclosed principal, that is, the 1st defendant in this case.
- AN ORDER of leave of court to join the Registrar of Trade Marks and Designs as a defendant to this suit to enable the defendant counter-claim for a rectification of the Register of Trade Marks and Designs on the ground that the plaintiff’s registrations were obtained fraudulently, the plaintiff’s being merely agents and distributors of ESAPILARMA of today’s MOVATE cream and not the Manufacturers thereof.”
The motion on notice was supported by an affidavit. It was moved and at the end of the day, the trial judge after considering the addresses of learned counsel vacated the interim injunction thus:”
In the exercise of my discretion and having regard to the circumstances of this case, I hereby order that the interim order of this court of 3/3/96 be and is hereby vacated.”
Unhappy with the above order, the plaintiff appealed to the Court of Appeal, Lagos, originally on four grounds of appeal, which notice of appeal was amended, and the grounds were increased to five. The appeal court after treating the issues raised by parties alongside the submission, found no merit whatsoever in the appeal and dismissed it. Again the plaintiff was not satisfied, so he has appealed to this court on five grounds of appeal, from which three issues for determination were raised. The issues are:-
“(1) Whether by not determining all the issues arising and submitted to it by the appellant as arising from its grounds of appeal for determination in the appeal, the Court of Appeal did not deny the appellant (its right to) a fair hearing of its appeal
(2) Whether the Court of Appeal was right in holding that the appellant’s resort to a police investigation of a crime in the circumstance was a resort to self-help and aimed at ridiculing the court and justified the vacation of the interim injunction by the learned trial Judge
(3) Whether the Court of Appeal should not have interfered with the discretion exercised by the Federal High Court in respect of the appellant’s motion for interlocutory injunction and exercised its powers under section 16 of the Court of Appeal Act to rehear and grant the said interlocutory injunction”
The issues raised in the respondents’ brief of argument are:-
“1. Whether the Court of Appeal by determining only the issues arising from the grounds of appeal submitted to it by the parties amounted to a denial of fair hearing.
- Whether the Court of Appeal was right in law in affirming the learned trial Judge holding that an appellant who obtained an ex-parte order of injunction restraining the respondents from selling products subject matter of dispute to subsequently or simultaneously and without informing the court to initiate police investigation against the same infringement and without informing the police of a pending civil action has resorted to self-help.
- Whether the Court of Appeal was right in law in affirming the learned trial Judge holding, discharging the interim injunction and ordering an accelerated hearing of the suit instead of granting an interlocutory injunction after taking arguments from both counsel on the motion to discharge the interim order given that there were conflicts in the parties’ affidavit evidence which raised issues that went to the root of the case.”
At the hearing of the appeal, exchanged briefs of argument were adopted by the learned counsel. I will now commence the judgment on this appeal with the treatment of issue (1) in the appellant and respondents’ briefs of argument. The gravamen of the appellant’s complain under this issue is that the court below jettisoned some of the issues it raised by it, as rather than treating all the five issues raised by it, the court reframed three issues. In his argument, learned counsel for the appellant has submitted that their five issues were related to their grounds of appeal and that the law is that issues are like pleadings intended to accentuate the real issues for determination. See Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) page 275. According to learned counsel, their entire brief and the issues raised were not examined or considered. Learned counsel further submitted that the three issues framed by the court below did not correctly flow from the grounds of appeal, and the arguments were overlooked in the judgment, and this occasioned a miscarriage of justice to the appellant. Reliance was placed on the cases of Sapara v. U.C.H. Board (1988) 4 NWLR (Pt. 86) page 58; Ukwunncyi v. State (1989) 4 NWLR (Pt. 114) page 131; Oro v. Falade (1995) 5 NWLR (Pt.396) page 385; Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) page 519; and Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) page 373.
The learned counsel for the respondents reiterated the essence of issues as adumbrated in the appellant’s brief of argument, referring to the cases of Ogbuanyinya and Ors. v. Okudo and Ors (No.2) (1990) 4 NWLR (Pt. 146) page 551; Oladele v. The State (1991) 1 NWLR (pt. 170) page 708; Busari and Ors v. Oseni and Ors. (1992) 4 NWLR (Pt. 237) page 557; and Chief Coker v. Chief Olukoga and Ors (1994) 2 NWLR (Pt. 329) page 648.
He contended that in the cases of Nzekwu v. Nzekwu etc relied upon by the appellant, the issues formulated therein were not derived from any of the grounds of appeal. Learned counsel submitted that since the issues reframed by the court in this case arose from the grounds of appeal there is no miscarriage of justice occasioned.
It is imperative to look at the record of proceedings to analyse the issues reframed by the lower court vis-a-vis the grounds of appeal.
The grounds of appeal as contained in the amended notice of appeal on page 392 of the printed record of appeal read the following (without their particulars).
“1. The learned trial Judge erred in law when after having fully heard and entertained on the merits, the pending applications including the plaintiff’s motion on notice dated 24/2/97 for interlocutory injunction, he directed an accelerated trial of the substantive suit without granting order determining the interlocutory injunction the requirements for granting or determining which the plaintiff met.
- The learned trial Judge erred in law and occasioned miscarriage of justice when without giving the appellant (or the parties) an opportunity to comment or address him on the following issues not raised or canvassed or relied on by the parties based his decision on them namely:-
- The learned trial Judge erred in law in denying the plaintiff of its constitutional right to fair hearing when after the plaintiff had taken the trouble and incurred expenses on filing and serving the said motion on notice for interlocutory injunction dated 24/2/97 and fully argued same on the merits, he filed or neglected to determine the plaintiff’s civil or legal right or otherwise to it and vacated the interim injunction then subsisting in favour of the plaintiff, thereby exposing the plaintiff’s legal rights, trade marks and designs to violation by the defendants.
- The learned trial Judge misdirected himself in holding as follows namely:-
“Again, I am of the view that it is no longer justifiable for this court to retain its interim order granted on 3/3/97 in that this court must in the circumstances of the present application for an injunction, take account of the conduct of an applicant in the instant case. In the present case, what transpired in the course of the proceeding is that the present applicant for interlocutory injunction has resorted to self-help by reporting the same matter to the police who are now investigating a complaint of adulteration of the product Movate cream against the respondents. Following this complaint, the respondent was detained by the police and was subsequently released on bail. Although the applicant has informed this court that he has taken steps to withdraw the complaint but as at today the matter is still with the police…
- The learned trial Judge erred in law in treating the plaintiff’s complaint to the police of the adulteration of its movate cream and the police investigation of same as a resort to self-help and abuse of his court’s process and in using same as a basis for vacating the interim injunction dated 3/3/97 subsisting in favour of the plaintiff when…….”
As has been said above, the appellant raised five issues for determination in its brief of argument, and the respondents raised seven issues in its brief of argument, a position which many legal authorities frown on, (the grounds of appeal being only five). It has been pronounced in many cases by appellate courts that issues formulated for determination must not out number the grounds of appeal, for each issue is supposed to have its base and source from a ground or grounds of appeal. See Oyekan v. Akinrinwa (1996) 7 NWLR (Pt. 459) page 128; and Angara v. Christmatel Shipping Co. Ltd. (2001) 8 NWLR (PI. 716) page 685. Once issues exceed the grounds of appeal there is danger that some of the issues are outside the grounds of appeal, and therefore not related to each other. Grounds of appeal cannot be subsumed from main grounds to accommodate issues. That is why ideally an issue must be distilled from a ground or grounds of appeal. The position of the law is that an issue must derive its source from a ground of appeal, and an issue that does not so relate will not be tolerated. See Chime v. Chime (2001) 3 NWLR (Pt. 701) page 527; Western Steel Works v. Iron and Steel Workers (1987) 1NWLR (Pt. 49) page 284; and Salami v. Mohammed (2000) 9 NWLR (Pt. 673) page 469. Whereas, the converse situation is allowed i.e. an issue can cover more than a ground of appeal the present situation has no place in our legal system. Proliferation of issues are discouraged. See Oyekan v. Akinrinwa (supra). This situation, I believe contributed to and informed the step taken by the learned Justice of the Court of Appeal to reframe his own issues, for he had in his judgment, before reframing the issues said:-
“Through a plethora of decisions this court and the Supreme Court have said that issues formulated by parties must flow from the grounds of appeal filed and such issues must not out number the grounds of appeal.
The issues raised by the respondent would seem to out-number the grounds of appeal; they are however interwoven and repetitive…”
In considering this appeal, I shall like to be guided by the following issues:-
(1) Is it an abuse of the court process for an appellant who has obtained an ex-parte order of injunction restraining the respondent from selling products subject matter of dispute to subsequently and without informing the court to initiate police investigation against the same respondents on an allegation of the same infringement and without informing the police of a pending civil action.
(2) Whether the learned trial Judge was right in discharging the interim injunction and ordering an accelerated hearing of the suit instead of granting an accelerated injunction after taking arguments from both counsel on the motion to discharge the interim order; giving the facts of this case.
(3) Whether by the ruling of 22nd July, 1997 the constitutional right to fair hearing of the appellant has been infringed.”
It is a relief that the learned counsel for the appellant has not contested the power of the court below to frame or reframe issues, for authorities abound that a court is empowered to frame issues where it is of the opinion that the issues formulated by counsel are not succinct or suffer some inadequacies. See Oloriode v. Oyebi (1984) 1 SCNLR page 390; N.P.A. v. Panalpina World Transport (Nig.) Ltd. (1974) 1 NMLR 82; and Oba Lawal Fabiyi v. Chief Solomon Adeniyi & 2 Ors. (2000) 6 NWLR (Pt. 662) page 532.
I do not also loose sight of the argument of learned counsel for the appellant that the lower court could or should have considered the issues of the appellant. I suppose he has, point there, the issues being only five and in tandem with the grounds of appeal, but then the pertinent question here is, are the issues appropriate and do they flow from the grounds of appeal In the first place, the grounds of appeal in the amended notice of appeal were five (as are reproduced above), and so the five issues raised in the appellant’s brief of argument correlates with the five grounds of appeal, and at a careful study of both issues and grounds of appeal it could be said to be related to the grounds of appeal. There are however, some over lappings in the issues, but then since the learned Justice was at liberty to reframe the issues for determination, there is no reason to condemn the procedure adopted by him as long as the issues flow from the I grounds of appeal. It is very clear that reframed issue (1) supra is distilled and flows from grounds (4) and (5) of appeal. Issue (2) is covered by grounds (I) and (2) of appeal, and the third issue is distilled from ground (3) of appeal. So in as far as the law is concerned the issues are competent and are issues that can be treated to determine the appeal, as they were in controversy. The situation in the authorities cited by the learned counsel for the appellant are distinguishable from the present case, so I fail to see that the lower court erred in refraining the issues upon which the determination of the appeal was based, and so grounds (1) and (2) of appeal to which issue (1) is married fails, as I am answering the said issue in the negative.
In proffering argument to cover issue (2) supra, learned counsel for the appellant submitted that its lodging of complaint of adulteration of its product to the police against the respondents was not because the trial court’s order was being disobeyed by the respondents and was being enforced through the police, as the lower court seems to have understood the situation and concluded that the report and investigation were aimed at ridiculing the trial court. What the learned trial Judge described as resort to self help was the appellant’s reporting of the same matter pending before him to the police authorities who were then investigating a complaint of adulteration of the product movate cream against the respondents. Learned counsel further submitted that the matter reported to the police was the crime of product adulteration which was different from claim of injunction from infringement and passing off of registered trade mark before the court. learned counsel placed reliance on the cases of Odogwu v. Odogwu (1994) 1 NWLR (Pt.323) page 708, The Registered Trustees, Apostolic Church v. Olowoleni (1990) 6 NWLR (Pt.158) page 514; Governor of Lagos State v. Ojukwu (1985) 2 NWLR (Pt.10) page 806; and Halsbury’s Laws of England, volume 45, 4th Edition, paragraph 1248 at page 577.
The learned counsel for the respondents after stating the position of things and the action taken by the appellant, in his brief of argument proceeded to submit that the appellant’s report to the police by way of petition initiated police investigation against the same respondents on an allegation of the same infringement and without informing the police of the pending civil action in which an anton piller order has been granted and without informing the trial court who should be seized of all the fact of the case, is not just an abuse but also self help as it is aimed at totally frustrating the legitimate healthy competition.
It is on record (see page 19 of the printed record of proceedings) that the appellant did report the matter in controversy to the police, as is evidenced by the proceeding I will reproduce here below. It reads:
“Court: At the last hearing there was a complaint before this court by the respondents that the same subject matter is before the A.I.G. Force C.I.D. Alagbon, who ordered that the 3rd respondent be detained. He was later released on bail. This court then took into consideration the fact that the plaintiff had resorted to self help and therefore ordered learned counsel for the plaintiffs/applicants to advise his client to withdraw the complaint pending before the police before the adjourned date.
Nakpodi: We have withdrawn the petition.
Dr. Sodipo: The is not strictly correct because the defendants/respondents have been visiting the police on their invitation and have even made additional statement yesterday 21/7/97. The police have collected samples of the defendants product on 21/7/97 and have sent same for analysis. The Police have refused to release the defendant’s product which they bought from the plaintiffs. The police still came to the defendant’s premises to conduct searches. The police refuted the plaintiff’s claim that they have withdrawn the petition. I submit that the plaintiff has not done enough to ensure that the harassment which they initiated by their petition will stop despite the interim order against us …”
It is also on record that the trial court upon hearing the ex-parte motion of the plaintiff/appellant for injunction inter-alia made the orders already reproduced above.
It is disturbing that the appellant after obtaining the above orders should proceed to petition the police on the same matter Order (b) supra as can be understood was restraining the respondents from inter-alia manufacturing the product in controversy, and so should cover whatever the appellant deemed to be the respondents interference with the product in controversy, albeit adulteration of the product. The argument of learned counsel for the appellant that the report lodged to the police was on adulteration of the product, does not reduce the gravity and consequence of the action of seeking police intervention and self-help. The argument is not at all persuasive. The appellant sought the courts intervention, and the court adequately intervened by giving the reliefs and orders sought, but then the appellant has proved that that was not enough for it was not satisfied, but resorted to self help. This action definitely was contrary to the principle that a litigant will not abuse a court’s process that is already in existence by resorting to self-help, and the courts will not tolerate such action or abuse.
The learned trial Judge in his judgment after dealing with this issue of reporting the matter that was pending in court to the police, (rightly in my view) made this finding:-
“The fact that the complaint to the police was made simultaneously with the filing of the present suit in my view amount to an abuse of the judicial process of this court.”
This finding having been made an issue of complaint was thrashed out by the lower in its judgment which reads:-
“A resort to police investigation as done by the appellant is some what a resort to self-help. Weighed against the background that no report was made to the court of any disobedience of its order, it seems to me that the action of the appellant is one aimed at bringing the court to ridicule. It is intolerable under rule of law.”
I completely endorse the above finding affirming the trial court’s decision.
The submission of learned counsel for the appellant that the facts and circumstances of this case are different from the situations of self-help and thus justifying their action as contained on page of their brief of argument does not hold water. The fact that the appellant complied with the order of the court to withdraw its petition was negated by learned trial court in its judgment where it said:-
“Although the applicant has informed this court that he has on the order of this court taken steps to withdraw the complaint but as at today the matter is still with the police.”
The rule in the cases of Smith v. Selwyn (1914) 3 K.B. page 98 is not evocable within the con of this case. The reliance on Section 6 of the 1979 Constitution, and section 230, 1979 Constitution Amendment Decree (107) 1993, and the cases of A.-G., Federation v. Dawodu (1995) 2 NWLR (Pt. 380) page 712; and Veritas Insurance Co. Limited v. Citi Trust Investments (1993) 3 NWLR (Pt. 281) page 349 are not of assistance to the appellant as far as this issue and discussion is concerned, as the circumstances of these cases are distinguishable from the present case. What is at stake here is the propriety of the appellant seeking police intervention after it has obtained an order of the court. The complaint here revolves around the abuse of court process, not the maintenance of a civil suit based upon an offence that has not been disposed of.
In the light of the above discussion, I answer the above issue in the affirmative, and so dismiss ground (3) of appeal to which it is married.
Now, to issue (3). The submission of learned counsel for the appellant under this issue is that the interest of fairness and justice would have been met if the appellant’s civil right to the interlocutory injunction sought had been determined especially since a lot of time, energy, costs and efforts had gone into the filing and hearing of the motion for interlocutory injunction. According to learned counsel, as the requirements to be fulfilled by the appellant for the granting of interlocutory injunction has been fulfilled the balance of convenience is on the appellant’s side, and that damages will not be enough to compensate the loss the appellant will suffer. The appellant was prepared to give an undertaking as to damages should the interlocutory order later be found to have been wrongly made, and the appellant’s legal intellectual property rights to the trade marks ‘Movate Gel’, ‘Topmovate’ as evidenced by its certificates of registrations of the trade marks and usage of same in Nigeria, which the appellant sought to protect from the respondents’ continuous violation pending trial. Learned counsel placed reliance on the cases of Adene v. Dantumbu (1988) 4 NWLR (pt. 88) page 309; Obeya Memorial Specialist Hospital v. Attorney General of the Federation (1987) Vol. 18 NSVV (Pt. II) page 961; (1987) 3 NWLR (Pt. 60) 325; Kotoye v. CBN (1989) 1 NWLR (Pt. 98) page 419; Ladoke v. Olobayo (1992) 8NWLR (Pt. 261) page 605; and University of Lagos v. M. I. Aigoro (1985) 1 NWLR (Pt. 1) page 143.
In this brief of argument, learned counsel for the respondent has contended that in granting or refusing an application for interlocutory injunction, a court must exercise its discretion judicially and judiciously, and an appellate court will not normally set aside or interfere with the exercise of discretion of the lower court once it is clear that it was exercised on just and legal reasons i.e judicially and judiciously. He placed reliance on the cases of Idoko v. Ogbeikwu (2003) 7 NWLR (Pt. 819) page 275; Royal Exchange Assurance F (Nig) Ltd. V. Aswani ile Industries Ltd. (1992) 3 NWLR (Pt. 227) page 1; and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) page 156.
A careful study of the record of proceedings reveals that facts that were in conflict have been disclosed, and to go into a detailed treatment of the affidavit evidence will be tantamount to dealing with the substantive issues at stake. The law is trite that at that stage of the proceedings i.e. interlocutory application, the court should not attempt to go into the merit of the matter in controversy else it is tempted to determine the case at that stage and leave nothing for the just and proper determination of the suit after the hearing. See Registered Trustees of P.C.N. v. Registered Trustees of Ansarud-deen Society of Nigeria (2000) 5 NWLR (Pt. 657) page 368; and John Holt Nigeria Ltd. & Ors. v. Holts African Workers Union of Nigeria and Cameroons (1963) 1ANLR page 379; (1963) 2 SCNLR 383.
In Halsbury’s Laws of England, Fourth Edition, Re issue, vol. 24 page 853, the principles upon which the court acts are stated thus:-
“On application for an injunction in aid of a plaintiff’s alleged right, the court will usually wish to consider whether the case is so clear and free from objection on equitable grounds that it ought to interfere to preserve property without waiting for the right to be established. This depends upon a variety of circumstances, and it is impossible to lay down any general rule on the subject by which the court ought in all cases to be regulated, but in no case will the court grant an interlocutory injunction as of course.
The tendency is to avoid trying the same question twice and to grant injunctions only in clear cases.” (Italics is mine)
It was in this wise that the learned trial judge was cautious to make the following observations and findings:
I have carefully gone through the arguments of counsel for and against the two applications which have been canvassed before me. First and foremost, I hold the view that both applications call for the exercise of my discretion which must be exercised both judicially and judiciously.
Again, it seems to me on a careful analysis of the averments contained in the affidavits and counter affidavits as well as the submissions of learned counsel for the applicant and respondent in the two applications that the issue of two competing rights have been raised which to me cannot be conveniently disposed of at this stage of the proceedings by affidavit evidence but are issues to be determined by oral evidence at the trial of the substantive suit. The duty placed therefore on this court in the determination of any interlocutory application pending the trial of the substantive suit is that care should be taken not to make pronouncements which may prejudice the trial of the claim filed and still pending before the Court – See Ojukwu v. Govt. of Lagos State (1986) 3 NWLR (Pt. 26) at page 39.
A corollary to the above is that a court is not to try in contention in a case twice first while considering the application for interlocutory injunction and secondly during the trial. The correct thing to do is to stop hearing the application and accelerate the trial of the substantive Suit. See The John Holt case (1963) 1 A.N.L.R page 379; (1963) 2 SCNLR 383 as applied in Nigerian Civil Service Commission v. Essien (1985) 3 NWLR (Pt. 12) 306 page 312.
I have come to the conclusion that the two principles of law enunciated above are applicable to the instant case. I believe the better approach in a situation as this, is to fix the case for hearing and decide the issue once and for all. This suit is therefore to be given accelerated hearing and I hereby order pleadings accordingly.”
The issuance of orders of interlocutory matters being one purely at the discretion of a court is a matter that should be exercised judicially and judiciously, and once an appellate court is satisfied that this principle of law has been met, it will hesitate to interfere with the decision of the trial court. In this vein, the lower court was therefore right when it said:-
“Giving the facts of this case, it is my considered view that the trial judge has exercised his judicial discretion bona fide. To interfere with the orders contained in the ruling of 22nd July, 1997 is to fetter that discretionary power of the learned trial Judge.”
In the light of the above discussion, I resolve the last issue in the appellant’s brief of argument in favour of the respondents, and so dismiss the ground of appeal to which the said issue is married.
In the final analysis, the appeal has no merit whatsoever, and I so dismiss it. The judgment of the Court of Appeal is hereby affirmed. I order the costs of N 10,000.00 in favour of the respondent against the appellant.