Kraft Foods Holdings Inc. V. Allied Biscuits Company Limited (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A: (Delivering the Leading Judgment)

This appeal is against the decision of the Federal High Court Lagos delivered by M.L. Shuaibu, J on the 14th February, 2005 wherein the learned trial judge struck out the originating motion filed by the applicant (the appellant herein) on 2nd January, 2004 on the ground that it did not disclose reasonable cause of action and that the appellant lacked locus standi to institute the action.

The reliefs sought for by the appellant in the originating motion dated and filed 2nd January were as follows:

‘1) An order that the register of trademarks may be rectified by expunging there from the whole entry relating to the above mentioned registered trade mark No. 31795.

2) Alternatively an order that the register of trade marks may be rectified by the deletion from the specification of goods for which the said trade mark is registered of cereals, bread, biscuits, cakes, pastry and confectionery, ice honey, treacle, yeast and baking powder.

3) An order that the costs of and incidental to this appeal may be paid by the respondent.’

These prayers were premised on the following sole ground:

“Up to the date, one month prior to the date of this application, for a continuous period of not less than five years there has been no bona fide use either by the respondent or by any other proprietor thereof for the time being of trade mark No. 31795 in connection with any of those goods in respect of which it is registered.”

In its reaction to the appellant’s originating motion, the respondent filed a counter affidavit and also a motion on notice dated 16th April, 2004 seeking for an order striking out or dismissing the appellant’s action on the following two grounds:

a) The notice of originating motion discloses no reasonable cause of action and is frivolous, mischievous, vexatious and an abuse of court process.

b) The appellant lacks locus standi to commence the action.

The respondent’s motion was successfully argued and granted by the lower court in its ruling delivered on the 14th February, 2005 whereby the appellant’s originating motion was struck out on the above two grounds.

The appellant was dissatisfied with that decision and therefore brought this appeal. The Notice of Appeal dated and filed 19th April, 2005 contains six grounds (particulars omitted) as follows:

“1) The learned trial judge erred in law in holding, without hearing arguments on the motion, that an originating motion discloses no reasonable cause of action.