Group Danone & Anor V. Voltic (Nigeria) Limited (2008)

LAWGLOBAL HUB Lead Judgment Report

F.F. TABAI, J.S.C.

This is an appeal against the ruling of the Court of Appeal, Lagos Division on the 18th of July 2002. The ruling itself was sequel to an application therein dated and filed on the 27th of June 2002. The motion prayed for:

(i) An order suspending varying or staying in terms set forth in the schedule hereto the exparte Orders granted by the Federal High Court (Honourable Justice OIotu J) on 28th of February 2002 in favour of (1) Groupe Danone (2) Society Des Eaux De Volvic.

(ii) An Order of Stay of Proceedings pending the determination of the appeal filed against the ruling of Honourable Justice Olotu J delivered on 3rd June 2002.

(iii) Such further or other Orders as this Honourable Court may deem fit to make in the circumstances.

Schedule

Term of Variation Proposed

“Discharging, suspending or staying that part of the order of the Federal High Court restraining the Defendant from selling or offering for sale Table Water in packages containers bearing the word “La Voltic” pending the hearing of the appeal now pending before this Honourable Court.”

The grounds for the application were stated therein to be:

(a) That an appeal (which raises substantial issues) has been filed against the ruling of the learned trial Judge refusing to discharge the order of ex parte granted against the applicants.

(b) That the Applicant is likely to be completely paralysed and wound-up if the ex-parte injunction is not varied before the hearing of the appeal.

(c) That the failure of the trial judge to entertain the application for stay or vary the injunction effectively grants to the plaintiff reliefs III(c) in the plaintiff’s particulars of claim notwithstanding the fact that that question whether La Voltic is deceptively similar to “Voltic is yet to be determined.

For thorough understanding of the issues involved, it is necessary to state the salient facts up to the filing of the motion. The suit was initiated on the 26/2/2002 when the writ of summons was issued. Filed along the writ of summons was a 28 paragraph Statement of Claim. The reliefs claimed as contained in the writ of summons and paragraph 28 of the Statement of Claim are:-

(i) A Declaration that the use of the words “”La Voltic” by the defendant constitutes an infringement of the Plaintiffs’ registered trade mark “Volvic”” No. 39259 in Class 32.

(ii) A Declaration that the adoption of the words “”La Voltic by the defendant for the sale of their table water amounts to a passing off of same as and for the Plaintiffs natural mineral water sold under the trade mark “Volvic””

(iii) An Order of Perpetual Injunction restraining the Defendant, its servants, agents, Directors or privies and or any of them or otherwise howsoever from doing the following acts or any of them, that is to say:

(a) Infringing the Plaintiffs’ registered trademark “Volvic”” No. 39259 in Class 32.

(b) Passing off, attempting to pass off, causing enabling or assisting others to pass off bottled table water not of the Plaintiffs’ manufacture or merchandise as and for the goods of the Plaintiffs by the use or in connection therewith in the course of trade of the trademark “La Voltic”” or such other similar mark either alone or in combination with other design logo or colourable imitation thereof as to be calculated to lead to the belief that natural mineral water not of the Plaintiffs’ manufacture or merchandise are products of the Plaintiff.

(c) Bottling, manufacturing, selling or offering for sale table water sold in packages, cans bottles or containers bearing the word “”La Voltic” so closely resembling the Plaintiffs’ trademark “Volvic” as to be calculated to lead to the belief that natural mineral water which are not of the plaintiffs’ manufacture and/or merchandise are products of the plaintiffs.

(iv) An Order for delivery up for destruction or obliteration upon oath of all bottled water and packaging not of the Plaintiffs’ manufacture or merchandise bearing the trademark “”La Voltic” and all moulds, raw materials printing blocks and other contraptions and devices in the possession, custody and control of the defendant, its agents, Directors, servants, privies or assigns or any of them the use of which will be in breach of the injunction prayed for herein and verification upon oath that the Defendant has no such articles so marked in its possession custody or control.

(v) Damages of N5,000,000.00 (Five Million Naira) against the defendant for infringement and passing off the Plaintiffs’ trademark Volvic” No. 39529 in Class 32.

(vi) Alternatively, an Account of Profits or an Order that the defendant whether acting by itself its agents, servants, privies or assigns or any of them do make and serve on the plaintiffs’ solicitors an affidavit disclosing when to whom and in what quantity it has sold, sent or supplied, purchased or received any such bottled table water branded as “La Voltic” aforesaid exhibiting true copies of all documents in their possession power or custody or relating to the facts and matters herein disclosed and payment of all sums due on making such an affidavit.

(vii) Costs

(viii) Further or other reliefs.

Also filed on the same 26th February, 2002 were a motion on Notice for an interlocutory Injunction and another ex parte Motion for some interim orders. The ex parte motion is very much in focus in this appeal. It sought the following reliefs:

1. An Order of Interim Injunction restraining the defendant whether acting by themselves their agents privies or otherwise howsoever and pending the determination of the Motion on Notice filed herewith or further from doing or authorising the doing of the following acts or any of them that is to say:

(a) Infringing the 2nd plaintiff’s/applicant’s Registered Trademark No. 39259 in Class 32 adopted by the Plaintiffs in the sale of their natural mineral water.

(b) Passing off or attempting to Pass Off, or causing, enabling or assisting others to Pass Off table water not of the Plaintiffs/Applicants manufacture or merchandise as and for the goods of the plaintiffs/applicants, by the use or in connection therewith in the course of the trademark “La Voltic” or such other similar mark either alone or in connection with other design or logo as to be calculated to lead to the belief that table water not of the Plaintiffs/Applicants manufacture or merchandise are products of the plaintiffs/applicants.

(c) Manufacturing, importing, selling or offering for sale table water sole in packages, can or containers bearing the word “La Voltic” or closely resembling the plaintiff/applicants trademark water which are not of the Plaintiffs/Applicants manufacture and or merchandise are products of the Plaintiffs/ Applicants.

2. An Order directing the Defendants herein whether jointly or severally, by themselves, their directors, servants, employees, agents privies or otherwise however in charge of the Defendant’s premises to permit the bailiffs of this Honourable Court serving this Order accompanied by a Police Officer not below the rank of an Assistant Superintendent of Police including such other policemen not less than six (6) in number and two (2) solicitors from the firm of Messrs Chris Ogunbanjo & Co. (Solicitors to the Plaintiffs/Applicants) to enter upon the premises of the said defendant on any working day from Monday to Friday from the hours of 8.00 a.m. and 6.00 p.m. for the purpose of:

(i) Inspecting, taking samples and inventory of the infringing products including making copies of order forms invoices, bills delivery orders and receipts in the custody, power, possession or control of the Defendants, their directors, officers, servants or agents or any of them which constitutes evidence of the infringement or volume of trade or transactions in the products bearing the offending mark at their premises at (1) No. 58 Onitiri Close, Surulere Lagos and (2) No. 50 Coker Road Shasha, Lagos or at any other premises in the possession power or control of the Defendant.

(ii) Taking into possession of the Federal High Court, Lagos for safe keeping quantities of the infringing products branded “La Voltic” table water found in the Defendant’s premises at (1) No. 58 Onitiri Close Surulere, Lagos and (2) No. 50 Coker Road Shasha Lagos or at any other premises aforesaid and all contraption contrivances chemicals and other devices by means of which the infringement is being perpetrated, pending the outcome of the motion on notice filed herewith or further order.

3. An Order granting liberty to the Defendant to apply that any orders made pursuant hereto or such parts thereof be set aside upon giving at least 48 hours notice thereof to the Applicants solicitors.
4. An Order granting leave to the bailiff of this Honourable Court to the effect along with the service of this order, service of the Writ Summons, Statement of Claim and Motion on Notice and all other processes on the named Defendant.
5. Such further Order or other Orders as this Honourable Court may deem fit to make in the circumstances.

The motion was supported by an affidavit of 33 paragraphs. This motion was heard on the 28th of February, 2002 and all the prayers sought were granted. On the 4th of March, 2002 execution was levied on the Defendant/Respondent at its premises both at (1) No. 50 Coker Road, Shasha Lagos and (2) No. 58 Akanbi Onitiri Close, Surulere Lagos. The inventories of the Respondent’s properties removed or impounded are at pages 152 and 153 of the record. They included over 2,000 cartons of finished products.

In reaction thereto the Respondent filed a motion on the 11th of March, 2002. By its ruling on the 3rd of May, 2002 the motion was refused. The Respondent filed a Notice of Appeal against the ruling. This was on the 6th June, 2002. On that same day, it filed yet another motion. I shall give details of the reliefs sought in these applications and the appeal later in this judgment.

Meanwhile the Appellants commenced contempt proceedings against the Respondent for disobedience of the orders of the 28th February, 2002. On the 20/6/02 the trial court fixed the hearing of the contempt proceedings for hearing on the 23/7/02. This decision prompted the filing of the application which ruling has given rise to this appeal. I shall come back to these later in this judgment.

briefs have been filed and exchanged. The appellants’ brief was prepared by Juliet Mfon Chunu. But the Appellants’ reply brief was prepared by Harrison Asiegbu. The respondent’s brief was prepared by Osaro Eghobamien. In the appellants’ brief the following three issues for determination were identified:

(a) Whether the Court of Appeal was right in entertaining the respondent’s application for a suspension of the Orders of the Federal High Court when an application in identical terms and another application for committal were both pending before the Federal High Court.

(b) Whether the Court of Appeal was competent to set aside- the Ruling of the Federal High Court delivered on the 3rd of May 2002, refusing to discharge the Orders granted against the respondent.

(c) Whether the Court of Appeal gave equal or any consideration to the interest of the appellant as it did to the interest of the respondent before setting aside the Ruling of the Federal High Court dated the 3rd of June, 2002 and if it did not, whether such failure, ought to vitiate the Ruling of the Court of Appeal.

The respondent adopted the three issues as identified by the appellant. On the first issue it was the contention of the Appellant that in view of the respondent’s motion of 6th June, 2002 for variation of the exparte Order of the 28th of February, 2002 which was still pending at the Federal High Court, it was an abuse of the courts process for the respondent to file the motion of the 6th of June, 2002 since there were no exceptional circumstances to do so. Reliance was placed on Caribbean Trading and Fidelity Corporation v.N.N.P.C (1991) 6 NWLR (Part 197) 362; Commissioner of Police v. Fasehun (1997) 6 N.W.L.R. (Part 507 170 at 180; Tate Industry Plc v. Devcom Merchant Bank Ltd. (2000) 15 N.W.L.R. (Part 689) 158; Pavex International Co. Ltd. v. I.B.W.A. (1994) 5 N.W.L.R. (Part 347) 685.

It was the appellants’ further submission that in view of the pending committal proceedings against the Respondent for its breach of the trial court’s orders the discretionary powers of the court could hot avail him. In support of this submission the Appellant relied on Shugaba v. U.BN Plc(1999) 11 N.W.L.R. Page 459, Mobil Oil Nig. Ltd. v. Assan(1995) 8 N.W.L.R. (Part 412) 129.

With respect to the second issue the appellant referred to the relief sought as contained in the Notice of Appeal filed on the 6th of June 2002 and the relief granted by the Court of Appeal on the 18th of July 2002 and contended that by its ruling, the court had granted the substantive relief in the appeal even before the appeal was heard, submitting that a court should refrain from determining, at an interlocutory stage issues in the substantive matter. In support of this submission, the Appellant relied on University Press Ltd. v. I.K. Martins (Nig.) Ltd (2000) 4 N.W.L.R. (Part 654) 584; Tate Industry Plc v. Devcom Merchant Bank Ltd (2000) 15 N.W.L.R. (Part 689) 164, Olaniyi v. Aroyehun (1991 5 NWLR (Part 194) 652; Shell Petroleum Dev. Co. Ltd. v. Omu (1998) 9 NWLR (Part 567) 672 at 682.

The Appellant further contended that there were no exceptional circumstances warranting the grant of the relief sought in the Ruling submitting that the facts referred to by the Court of Appeal as special circumstances were not, in fact, special circumstances. According to the appellant as at the 18th of July 2002 the records of appeal had neither not been settled nor accepted by the Court of Appeal and submitted that the Court was therefore not competent to give the ruling.

The appellants’ arguments on the third issue were premised mainly on the competing rights of the parties and balance of convenience. They referred to sections 2(1) 3 and 5(1) of the Trademarks Act, the fact that they were the proprietors of the registered Trade Mark “Volvic” the fact that the respondent’s Trade Mark “La Voltic” had not been duly registered and submitted that while the appellants have a proprietary interest in the trademark “Volvic” to protect, the respondent has neither legal nor equitable interest to protect. It was the appellant’s argument therefore that the Orders of the Federal High Court which protected their legal rights ought not to have been disturbed by the Court of Appeal. They referred to portions of the Ruling and contended that while the Court of Appeal considered the interests of the Respondent, it failed to consider the corresponding interest of the Appellants. It was further submitted that by the trial court’s ruling on the 3rd of May 2002, the interim injunction of the 28th February, 2002 had metamorphosed into an interlocutory injunction and that had the Court of Appeal given due consideration to this fact it would have exercised its discretion in the Appellant’s favour. Reliance was placed on Attamah v. Anglican Bishop of The Niger (1999) 12 N.W.L.R. (Part 633) 6 at 12 and Effiom v. Ikonbar (2000) 3 NWLR (part 650) 545 at 556.

Finally the appellants urged that the appeal be allowed.

On the first issue the Respondent proffered the following arguments. The respondent referred to the circumstances leading to the application of the 6th June 2002 and argued that the trial court’s refusal to hear it and to take the committal proceedings constituted “special” circumstances to warrant the Lower Court’s decision to entertain it. For this submission the Respondents relied on Shoeinde v. Registered Trustees (1983) 2 SCN LR 284 and Holman v. Kigo (1980) 8-11 SC 43. The Respondent had not yet been adjudged a contemnor and so the principle of a court not to exercise its discretion in favour of a contemnor does not apply in this case, it was contended.

As respect the second issue, it was the contention that although isolated passages in the ruling give the impression that the trial court’s order was set aside, a reading of the entire Ruling shows that it only varied or suspended the trial Court’s Order.

For the third issue of whether the Court of Appeal gave equal or any consideration to the corresponding interest of the Appellants as it did to that of the Respondent, it was the submission that the court did consider the affidavit evidence of both parties before the exercise of its discretion to grant the application and which discretion ought not to be interfered with by this court. It was urged that the appeal be dismissed.

In the Appellants’ Reply Brief, the Appellants relying on the provisions of Order 3 Rule 3(4) of the Court of Appeal Rules and the decision in Commissioner of Police v. Fasehun (1997) 6 N.W.L.R (part 507) 170 at 179 submitted that the Respondent failed to establish the special circumstances warranting the application to be made first at the Court of Appeal, contending that Respondent had no choice in the matter and was under a duty to file and move the application first at the High Court. On the second issue, it was the submission of the Appellants that a court can only grant a relief sought by an applicant and any order made in excess of the prayers in an application must be rejected and set aside. For this submission the Appellants relied on Akinbobola v. Plisson Fisko (Nig.) Ltd(1991) 1 N.W.L.R. (part 167) 270 at 278 and Kalio v. Kalio (1975) 2 SC 15 at 20.

I have considered the arguments of counsel for the parties as submitted in their respective briefs of argument. First it has to be stated clearly that this appeal has nothing to do with the substantive issue of whether the Respondent’s trademark or ‘purported trade mark “LA VOLTIC” is an infringement of the Appellants’ registered trade mark “VOL VIC”. That is the issue for trial and determination at the High Court.

For this appeal, the first issue is whether having regard to the fact that the reliefs in the respondent’s motion of the 6th of June 2002 pending at the Federal High Court and those in the motion at the court below which has given birth to this appeal are identical, it was incompetent for the court below to entertain it. In bringing the application the Respondent relied on sections 16 and 18 of the Court of Appeal Act and Order 3 Rule 3(4) of the Court of Appeal Rules 1981. Order 3 Rule 3(4) provides.

“Where an application may be made either to the High Court or to the Court of Appeal, the Appellant is enjoined by the provision of Order 3 Rule 3(4) of the Court of Appeal Rules 1981 (as amended) to make the application first to the High Court.He can only apply to the Court of Appeal without first applying to the High Court where there are special circumstances which make it impossible or impracticable to apply to the High Court.”

Learned counsel for the Appellant submitted that there were no special circumstances to warrant bringing the application first at the Court of Appeal. The submission of learned counsel for the respondent was that the contempt proceeding itself constituted the circumstances to justify the application at the Court of Appeal. For a proper perception of this issue it is necessary to critically examine the facts and circumstances leading to the filing of the application on the 27/6/2002.

The whole problem of this appeal turns on the propriety or otherwise of the ex parte Order of the 28th of February, 2002. In granting the order the learned trial judge had this to say:-

“I have carefully considered the application by the Court and the submissions made by the learned counsel in furtherance of it and I am of the view that the Plaintiff/ Applicant has satisfied the Court as to the essential ingredients necessary for the grant of the application he is seeking. The Court is satisfied that the plaintiff has prima facie shown that he has a right to protect. He has also shown that this application be heard and granted exparte if the infringing products and related documents are to be preserved. He has also shown prima facie that his product VOLVIC is being infringed by the Defendant’s product. I therefore grant his prayers for interim injunction and Anton Pillar as prayed in his motion paper dated and filed 26th February, 2002.”

The reliefs granted are a copy of the reliefs sought which I have reproduced. All the prayers were granted and they are at pages 74 -77 of the record. For constraints of time and space, I need not reproduce them. They are, no doubt, far reaching and devastating. The Court of Appeal described them as draconian. They contain injunctive orders the total practical effect of which was the closing down of the respondent’s industry albeit “temporarily.” And worse still, the orders include anton piller which authorised the appellants to enter upon the respondent’s two premises and thereon take, seize and impound products and other properties of the respondent. And all these orders were made and execution thereof authorised even before the Respondent became aware of the suit against it. The respondent became aware of this suit only on the 4th of March, 2002 when execution was levied on its two premises.

Under such excruciating circumstances, it was only natural for the respondent to react by filing its motion of the 11th of March, 2002. The motion prayed for:

“”An order setting aside, discharging and vacating forthwith on its entirety the order pronounced by this Honourable Court on the 28th February in favour of Groupe Danone and Societe Des Eaux De Volvic against Voltic Nigeria Limited.”

The motion was supported by a 21 paragraph affidavit. In paragraphs 13, 14, 17, 18, 19 and 20 thereof the respondent deposed to facts some of which were that it was a substantial entity with its products found in most prominent supermarkets and open markets in most states of Nigeria; that it was therefore unlikely to conceal or destroy evidence that would be subsequently required in the litigation to warrant the antom pillar order; that it has substantially heavy investments in the industry with a monthly turn over of about N20,000,000.00 and with over 100 staff in its employment; and that unless the order of the 28th February, 2002 was discharged it would suffer irreparable damages and even go into bankruptcy. Although the appellants filed a 27 paragraph counter affidavit the above facts were not controverted.

Despite these circumstances the trial court refused the application by its ruling on the 3rd of May, 2002. In apparent desperation, the respondent filed both the Notice of Appeal against the ruling and a motion for variation of part of the controversial order of the 28th February, 2002. Then came the decision of the trial court on the 20th June, 2002 to try the respondent for contempt of the self same order of the 28th February, 2002 which validity the Respondent had doggedly challenged in the various applications and the appeal. The contempt proceedings were fixed for the 23/7/02 for hearing. (See page 250 of the record) This was the position the respondent found itself when it filed the application of the 27th June, 2002 the subject matter of this appeal. Order 3 Rule 3(4) of the Court of Appeal Rules provides to the effect that where an appellant is entitled under the Rules to make an application either at the Court of Appeal or at the High Court, he shall make the application first at the High Court; and that it is only in special circumstances where it is impossible or impracticable to make the application at the High Court that it can be made first at the Court of Appeal.

Now are there such special circumstances in this case to justify the application made at the Court of Appeal. I shall answer this question in the affirmative.

Firstly it is settled principle of law that where a Defendant in a cause challenges the validity of an order directed against him either by way of an appeal or other application, he cannot be proceeded against for contempt of that order unless and until the issue of its legality is settled one way or the other. And this is particularly so where, as in this case, the order was procured by the Plaintiff behind his back. The principle is an exception to the general common law rule that a person in contempt in a cause cannot be heard in the cause unless he purges himself of the contempt. In Onwochei Odogwu v. Olemeoku Odogwu (1992) 2 NWLR (Part 225) 539 at 554, this Court, per Karibi-Whyte JSC re-emphasised this principle when he said:

“The common law rule precluding persons in disobedience of orders of court against them from being heard in respect of matters which they stand in disobedience of is of respectable antiquity. The principle has however been whittled down by exceptions. Thus where the order disobeyed was made without jurisdiction; or where the party in disobedience is challenging the validity of the order, the principle does not apply. See Gordon v. Gordon (1904) P.163.”

In this case, the Respondent has demonstrably challenged the validity of the ex parte Order first by its application of the 11th of March, 2002, the Notice of Appeal filed on the 6th of June against the ruling sequel thereto and the motion also of the 6th of June, 2002. In the Notice of Appeal, the relief sought from the Court of Appeal is stated to be:-

“An Order setting aside the ruling of the Honourable Justice Olotu delivered on the 3rd of May and in its place discharging in its entirety the Order of ex parte and anton pillar order granted on the 28th day of February, 2002.”

And in the motion of the 6th of June 2002 the Respondent prayed for an order:

“Discharging or suspending that part of the Order of the Federal High Court restraining the Defendant from selling or offering for sale Table Water sold in packages, cans, containers bearing the word “LA VOLTIC” pending the hearing of the appeal filed herein.”

The above shows clearly the respondent’s continued challenge of the validity of the ex parte Order of the 28th February, 2002. It has not been and indeed, it cannot be suggested that the challenge is merely frivolous. I have no doubt that given the peculiar facts and circumstances of the case the validity issue is not merely frivolous. To the Respondent, the issue is fundamental. And so pending the determination of this crucial issue of the validity or otherwise of the order the respondent cannot be tried for its breach, lest he would be tried and punished for contempt of an order which might turn out to be without any legal basis. On the principle of Odogwu v. Odogwu (supra) I am of the firm view that the respondent’s case falls within the exceptions to the general rule which bars a contemnor in a cause from being heard unless he purges himself of the contempt. The trial court had no choice but to follow this principle.

However, on the 20th June, 2002 there were, pending before the trial court the appellants’ application for contempt proceedings against the Respondent and the respondent’s application for discharge or suspension of part of the Order of the 28th February, 2002. There was argument as to the application to be heard first. In its ruling the trial court said:-

“Following the analysis of the various exceptions to the general rule that a contemnor cannot be heard, it is clear that the defendant cannot be exempted from the general rule by being heard in respect of their application. This is because the application which they want to be heard does not come within any of the exceptions to the general rule as analyzed herein. Therefore in the circumstances the defendants cannot be exempted from the general rule which bars a contemnor from being heard and to their application for an order to suspend or vary the terms of the order of this court cannot be heard now. The application of the plaintiffs would therefore be taken.

By agreement of the parties, case is adjourned to 23/7/2002 for plaintiffs’ application for contempt.”

The Court having thus decided that the respondent cannot be heard and having regard to the fact that the appeal which challenges the order cannot be heard before the 23/7/2002, the respondent stood the imminent danger of being punished for breach of an Order which propriety it had, on good grounds, persistently challenged.

The foregoing aptly demonstrates the precarious situation, the respondent found itself. Implicit in the ruling itself is the fact that the respondent was already adjudged to be guilty of the contempt. It was clear therefore that the respondent would be imprisoned or otherwise inflicted with some form of punishment on the 23/7/2002 unless it earlier folded up its water industry and all these before the determination of the ultimate issue of whether “La Voltic” infringes Volvic.

In these circumstances, the respondent had no alternative but to seek refuge in the Court of Appeal by filling the motion which has given rise to this appeal on the 27th June, 2002. It was as it were, a pre-emptive strike. And in view of the foregoing considerations, I hold that there existed very special circumstances which entitled the respondent to file the application at the Court of Appeal. There was no question of abuse of judicial process as suggested by the appellants. I hold that the application was appropriately presented at the Court of Appeal which was equally competent to entertain same. The result is that the 1st issue is resolved in favour of the respondent.

With respect to the 2nd issue for determination, I agree that the relief granted is not strictly as prayed. The relief sought in the application which ruling has given rise to this appeal had been re-produced above. At the concluding part of its ruling the court below, Per Galadima JCA at page 351 said:-

“In summary, all things considered this application succeeds and it is hereby allowed. Therefore the ruling of the lower court delivered on the 3/6/2002 refusing to discharge the orders granted against the applicant is set aside. In its place and order granting stay of execution of that order is hereby substituted……..further proceedings before the lower court are stayed pending the determination of the appeal in this court.”

There was no prayer for setting aside the ruling of the trial court of 3rd of May, 2002; nor was there any prayer for stay of further proceedings. But it can be seen that the ex parte Order of the 28th February, 2002 is the pivot on which this appeal turns. Because of its excruciating effect the Respondent reacted by filing a number of applications and the appeal. And all the applications i.e. the one of the 11th of March, 2002, 6th of June, 2002 the Notice of Appeal filed on the 6th of June, 2002 and the application which ruling has given rise to this appeal were directed either at vacating the Order in its entirety or otherwise varying, suspending or staying the said order. The ruling of the 3rd of May, 2002 consolidated the ex parte Order complained of and the reaction of the Court of Appeal was therefore to render the order inoperative by staying its execution. And the order for stay of proceedings was apparently to stave off the Respondent’s impending trial for contempt. Although the words setting aside were used the intention of the court is clear from the stay of execution and stay of proceeding ordered. While the stay of execution ordered is consistent with the relief sought; the stay of proceedings ordered, though not specifically sought, was necessary to stave off the Respondent’s trial for contempt.

In conclusion, I hold that the use of the words “set aside” notwithstanding, there is no substance in the complaint in ground one of the Notice of Appeal on which the second issue is predicated. I therefore resolve that issue in favour of the respondent.

As regards the 3rd issue for determination the complaints of the appellants were on the competing rights of the parties and the issue of balance of convenience. It was their submission that the order of the 28th February, 2002 which protected their legal rights ought not to have been disturbed. It has to be noted that the substantive issue for trial and determination is whether the respondent’s mark “La VOLTIC” infringes the appellants’ registered trade mark “VOLVIC”. By the very nature of the case the trial would entail essentially a comparison of the two marks within the provisions of the Trade Marks Act and can be completed in a few days. If the appellants succeed in establishing the alleged infringement they would be entitled to the declarations and injunctions of the type granted and permanently too. But instead of pursuing their alleged infringement in the substantive case, the appellants have been at great pains for the six years to perpetuate a questionable order. And there is nothing from the affidavit evidence to show that if the Respondent had been put on notice and the motion on notice heard a few days after the 28/2/02, the appellants would have suffered greater damages than they suffered in the five months before the filling of the suit.

At page 350 of the record the court below reasoned as follows:

“The orders made by the lower court in the instant case are clear and they point to one direction only, that is stoppage of the entire business of manufacturing of the applicant’s products.”

The applicant has stated in paragraph 25 that they are likely to suffer irreparable damage and loss if their production in the same of “La VOLTIC” is halted albeit temporarily. They have given details.

The appellants filed a 45 paragraph counter affidavit and although in paragraphs 39, 41 and 42 thereof they denied that the respondent was likely to be paralysed by the order, it is nevertheless clear that the effect was the infliction of irreparable damage on the respondent. I do not therefore agree that the appellants’ interest was not considered by the court below in granting the application. This issue is therefore also resolved against the appellants.

In conclusion I hold that this appeal lacks substance. The ends of justice would, no doubt, have been better served in this case if the appellants had pursued the substantive claim by establishing the alleged infringement of their trade mark instead of using precious litigation time trying to defend and perpetuate a patently questionable ex parte Order. The appeal is for the foregoing reasons dismissed for lack of merit.

I assess the costs of this appeal at N10,000.00 in favour of the respondent.

SC.223/2002