Holborn Nigeria Limited V. O. C. Chris Enterprises Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

This appeal sprouted from the Ruling delivered by the lower Court on the 4th October, 2014 correcting or amending its final judgment delivered on the 13th October 2006 in some details without any prompting by the parties.

By the Amended Statement of Claim of the Respondent filed on 20/10/06, the Respondent claimed against the Appellant the following reliefs:

“a) A declaration that the Certificate of Registration of Design with Registration Number, 5528 dated the 15th September, 2003 issued by the Registrar of Patents and designs in the name of the Plaintiff, O. C. CHRIS ENTERPRISES NIGERIA LIMITED, is valid and subsisting and confers on the Plaintiff the Exclusive right to the use of the registered KAFAL RUBBER DESIGN for the Plaintiffs ile products in Nigeria.

b) A declaration that the acts of the Defendant whether by itself, its subsidiary Companies, Directors, Officers, Agents, Servants and Privies or/and persons or firms howsoever described known and unknown, in manufacturing or producing the ile products carrying the “KAFAL RUBBER DESIGN” similar and resembling the Plaintiffs registered KAFAL RUBBER DESIGN, and offering for sale, distributing for sale or supplying the said ile Products which are capable of deceiving the Plaintiffs customers and the buying public into believing they were the Plaintiffs ile Products Kafal Design is an infringement of the Plaintiffs proprietary right in the exclusive use of the registered and protected Kafal Rubber Design in ile products in Nigeria under the PATENTS AND DESIGNS ACT OF THE FEDERATION OF NIGERIA.

c) An order of perpetual injunction restraining the Defendant whether by itself, its subsidiary Companies, Directors, Officers, Agents, Servants, Privies and Employees or/and firms or persons howsoever described known and unknown from infringing the Plaintiff’s Proprietary right to the use of the ‘KAFAL RUBBER DESIGN’ registered and protected by the Certificate of Registration Number, 5528 under the PATERNS AND DESIGNS ACT OF THE FEDERATION OF NIGERIA, by the Manufacture or production of ile products carrying the Kafal Rubber Designs similar and resembling the Plaintiffs ile products Kafal Rubber Design, or by offering for sale or distribution for sale the ile products carrying the Kafal Rubber Design which are not of the Plaintiff but capable of deceiving the Plaintiffs customers and the buying public into believing that the said ile products carrying the Kafal Rubber Design are those of the Plaintiff.

d) An order directing the Defendant whether by itself, its subsidiary companies, Directors, Officers, Agents, Servants, privies and employees or/and firms or persons howsoever described known and unknown to VERIFY UPON OATH that they no longer have in their possession, custody or control the ile products carrying the KAFAL RUBBER DESIGN SIMILAR AND RESEMBLING THE PLAINTIFF’S registered KAFAL RUBBER DESIGN or manufacture or produce same or any ile products carrying Design nearly or resembling same.

e) An inquiry as to damages or at the Plaintiffs option, an account of the profits made by the Defendant whether by itself and all other persons and firms howsoever described which the Plaintiff knows and those it cannot identify, by reason of the infringement of the Plaintiffs copyright or proprietary right in the use of the KAFAL RUBBER DESIGN by the Defendant and all such persons and firms,

or alternatively the Plaintiff claims against the Defendant the sum of Ten Million Naira (N10,000,000.00) as general damages for the defendant’s infringement of the Plaintiff’s proprietary right to the use of the registered KAFAL RUBBER DESIGN covered by the Certificate of Registration Number 5528, by producing for sale and distribution, the ile products carrying the KAFAL RUBBER DESIGN.

f) The cost of this action.”

After determination of the issues raised by the parties in the action, the learned trial Judge, on the 13th October, 2006 held thus:

“From the foregoing paragraphs of this judgment the Plaintiffs claims succeed in their entirety and I so hold.”

Accordingly, the Plaintiffs claim against the Defendant contained in paragraph 15 of its Amended Statement of Claim are hereby granted as follows:

a) A declaration that the Certificate of Registration of Design with Registration Number, 5528 dated 15th September, 2003 issued by the Registrar of Patents and Design in the name of Plaintiff, O. C. CHRIS ENTERPRISES NIGERIA LIMITED, is valid and subsisting and confers on the Plaintiff the Exclusive right to the use of the registered KAFAL RUBBER DESIGN for the Plaintiffs ile products in Nigeria.