Holdent International Limited V. Petersvilie Nigeria Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

Consequent upon the dismissal of an action for trade mark infringement brought by the appellant against the respondent at the Federal High Court of Justice sitting in Lagos State (the court below), on the ground that the appellant had not proved the case for an infringement of her trade mark, the appellant filed the appeal questioning the said judgment.

Expressed in summary form, case of the appellant was that her trade mark called Mamalemon was duly registered with the Registrar of Trade Mark in class c for the purpose of the manufacture and sale of detergent. It was the appellant’s case at the court below that the respondent infringed the trade mark by producing and marketing detergent under the unregistered trade name of ‘Mana liquid Soap’. The appellant asserted that the two trade names sound alike and confuse customers to desert her product for the respondent’s product in the belief that they are patronising her Mamalemon products.

The respondent asserted on the other hand that there confusion is no between ‘Mamalemon’ and ‘Mana Liquid Soap’ both in sound and in sight and/or that any potential customer/buyer hearing and seeing the appellant’s trade mark of ‘Mama Lemon’ and the respondents unregistered trade name of ‘Mana Liquid Soap’ will spot the difference between the two and would not be misled in his choice of what to buy.

The court below resolved in its judgment that the appellant was entitled to a declaration that she is the rightful/legal owner/proprietor/user of Mamalemon trademark. The court below further resolved that the respondent did not infringe the appellant’s trade mark with the production and sale of its Mana Liquid Soap product and dismissed the appellant’s claim of infringement of her trade mark by the respondent.

Not unexpectedly, the appellant was aggrieved by the decision of the court below that the respondent had not infringed her trade mark and filed a notice of appeal with four grounds of appeal on 09.06.11 challenging it. In a brief of argument filed on 06.10.11, the appellant developed two issues for determination in these words-

“1. Whether the judgment of the court below satisfies the laid down guidelines to be followed in the writing of judgments, and if not, this is a proper case requiring this Honourable Court to intervene to review the entire case?

2. Whether the case put forward by the Appellant was properly considered or considered of all in the judgment of the court below, and if the answer is in the negative, whether the said judgment should be set

aside for lack of fair hearing.”

The appellant pointed out in the course of arguing the first issue that the court below merely summarised the evidence of the parties before it without evaluating the evidence to ascribe probative value to it in the imaginary civil scale of justice, therefore the judgment it arrived at in favour of the respondent was not a dispassionate demonstration of the assessment of the evidence before it and should be set aside and this Court should evaluate the evidence, which properly evaluated entitles the appellant to the judgment that the respondent infringed her trade mark of Mamalemon vide the cases of Mogaji and Ors v. Odofiin and Ors. (1978) 4 S.C. 91 at 93, Ogba v. Onwuzo (2005) 14 NWLR (pt.945) 331 at 334-335, Okulate v. Awosanya (2000) 1 S.C. 107 or (2000) 2 NWLR (pt.246) 530, Uzuda and Ors. v. Ebigah and Ors. (2009) 7 S.C. 21 at 23, Anyanwu and Ors. v. Uzowuaka and Ors. (2009) 6-7 S.C. (pt.11) 44 at 54, O.S.I.E.C. and Ors. v. A.C. and Ors. (2010) 12 S.C. (pt.iv) 108 at 162 – 164, Ndukwe v. State (2009) 2-3 S.C. (pt.11) 35 at 77.

The appellant complained on the second issue that the failure of the court below to properly and fully consider her case in its judgment violated her right to fair hearing vide Opuiyo v. Omori Wari (2007) 6 S.C. (pt.1) 35, Uzuda v. Ebigah (supra) at 42, Samba Pet Ltd. and Anor, v. U.B.A. Plc and ors. (2010) 5-7 S.C. (pt.11) 22 at 33-35, Amadi v. Thomas Alplin and Co. Ltd. (1972) 4 S.C. (Reprint) 2o5, Adigun v. Attorney-General, Oyo State (1987) 1 NWLR (pt.53) 678, Nwokoro v. Onuma (1990) 5 S.C. (pt.53) 678, Nwokoro v. Onuma (1990) 5 S.C. (pt.1) 124. The appellant ended her submissions by urging the Court to allow the appeal and find in her favour that her trade mark was infringed by the respondent.

The respondent’s brief of argument dated and filed on 07.07.11 formulated these issues for determination:-

“1. Whether the judgment of the court below satisfies the laid down guidelines to be followed in the writing of judgments, and if not, whether this is a proper case requiring this Honourable court to intervene to review the entire case.

2. whether the case put forward by the appellant was properly considered at all in the judgment of the court below, and if the answer is in the negative, whether the said judgment should be set aside for lock of fair hearing?
3. Whether the appellant having failed to pay the cost awarded against it at the lower court is entitled to be heard before this honourable court.”

It is the contention of the respondent that the style of writing judgment varies among judges as the only invariable requirement of a good judgment is that it must encompass the claim or relief sought, summary and assessment of the evidence together with counsel’s submissions and the drawing of right conclusions findings on the admissible evidence before the court, which the court below accomplished by making a definite finding on the only issue in dispute between the parties that the mark ‘Mama Liquid Soap’ used by the respondent to market its product did not infringe ‘Mama Lemon’ trade mark of the appellant upon which it righty found against the appellant vide Okulate v. Awosanya (2000) 2 NWLR (pt.246) 530, Onuoha v. State (1988) 2 NSCC 175, Usibaifo v. Usibaifo (2005) 4 MJSC 82, Agbanelo v. UBN (2000) 7 NWLR (pt.666) 534.

Consequently, the respondent urged that assuming without conceding that the court below made a mistake in the evaluation of evidence the error was not substantial and did not occasion a miscarriage of justice to justify this Court to intervene with a view to review the entire case to arrive at another judgment vide Fatunbi v. Olanloye (2004) 51, A.G, Leventis v. Akpu (2007) 9 MJSC 134, Ezeoke v. Nwagbo (1988) 1 NSCC 414.