Josien Holdings Limited & Ors V. Lornamead Limited & Anor (1995)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C. 

The plaintiffs in the Lagos High Court obtained judgment against the defendants in the following terms-

“1. That the defendants whether by themselves, servants and/or agents, servants be and are hereby restrained from passing off all their products bearing the trade names and mark TURA, KISS and

SORAYA with their get-ups (particularly those listed in the first relief sought in the Writ of Summons) as those of the plaintiffs.

2. Obliteration by the defendants of all marks and get-ups or colourable imitation thereof upon all articles in the nature of the goods complained of bearing a similar get-up or colourable imitation

thereof which could be a breach of this injunction.

3. Delivery up or alternatively the destruction of any articles in possession, custody or control of the defendants bearing the trade marks or a get-up confusingly similar to the get-up used by the plaintiffs, including any packaging brochures, advertisement or other materials.
4. An enquiry as to damages or in the alternative an account of profits and payment of all sums found due upon taking such an enquiry.
5. Disclosure of the names and addresses of all persons:

(a) with whom the defendants have placed orders for every material bearing the names or get-up confusingly similar to the get-up used by the plaintiffs in the trade marks the subject matter of this action.

(b) to whom the defendants have supplied any such materials including details of the quantities involved.”

The defendants have since appealed to the Court of Appeal. Meanwhile by a motion on notice they applied to the High Court for an Order for stay of execution of the judgment. The application was dismissed. The defendants not satisfied with the ruling of the High Court then applied to the Court of Appeal for the same order. The Court of Appeal also dismissed the application. The defendants have now appealed to this Court from the decision of the Court of Appeal dismissing their application for stay of execution. They will from henceforth be referred to as the “appellants” while the plaintiffs will be referred to as the “respondents”.

I must observe at once that although the respondent had ample time within which to file their brief they did not do so up to the time this appeal was heard on 17/10/94. The record shows that this appeal first came up for hearing on 1/11/93.

On that day the respondents were represented by Mrs Yemi Olayanju and Miss Yemisi Ilori of Counsel. They complained that they did not file their brief because they were not yet in possession of the record of appeal. Chief Williams SAN for the appellants there and then undertook to provide counsel with the record. The appeal was then adjourned to 17/10/94 for hearing. For a period of almost one year since the appeal was adjourned for hearing no brief has been filed for the respondents.

To make matters worse the respondents were not even represented by counsel on the hearing day to offer any explanation. It was towards the end of Chief Williams address in the appeal that one Dr Abayomi who claimed to represent the respondents stumbled into court. He made it clear that the brief was not ready and the court therefore refused him leave to be heard in oral argument vide Order 6 Rule 8 (5) of the Supreme Court Rules 1985 (as amended). The appeal was therefore heard without the benefit or any contribution from the respondents.

Chief Williams SAN in paragraph 2 of his brief submitted the following questions for determination –

“(i) Is the court below correct in striking out paragraphs 18,27 &30 of the affidavit in support of the defendants’ motion for stay of execution on the ground that the contents thereof deal with the merit of the substantive appeal

(ii) Is the court below correct in holding that certain other paragraphs of the aforesaid affidavit contravene the Evidence Act