Zeneca Ltd & Ors V. Jagal Pharma Ltd (2007)

LawGlobal-Hub Lead Judgment Report

PAUL ADAMU GALINJE, J.C.A.

The Respondent herein, by a Writ of Summons and a statement of claim made various claims against the Appellant at the Federal High Court Lagos, (henceforth to be known as the lower Court). The writ and the statement of claim are at pages 122-128 of the record of this appeal. As the proceedings progressed the statement of claim became subject of amendment and further amendment. The final amended statement of claim before judgment of the lower Court is styled 2nd Amended statement of claim which was filed pursuant to an order of the lower Court dated 19th of February 2002. This statement of claim is at pages 616-621.

At paragraph 22 of the 2nd Amended statement of claim, the following claims were set out thus: –

(i) A declaration that the Agreement dated 1st May, 1996 between the plaintiff and the 1st Defendant is null and void ab initio on the ground of fraud and fraudulent misrepresentation on the part of the 1st Defendant.

(i) An order setting aside the Agreement dated 1st May 1996, between the plaintiff and the 1st Defendant on the ground of fraud and fraudulent misrepresentation on the part of 1st Defendant.

(ii) an order of rescission of the Agreement dated 1st May, 1996 between the plaintiff and the Defendant.

(iii) A declaration that the plaintiff has been the lawful user of the mark “TETMOSOL” in Nigeria at all material times in this suit;

(iv) An order of removal of the mark “TETMOSOL” from the Register for lack of bona fide use by the 1st Defendant.

(v) An order for rectification or varying the entry in the Register in favour of the Plaintiff with respect to the mark “TETMOSOL.”

(vi) An order of perpetual injunction restraining the 1st and 3rd Defendants either by themselves, their agents, servants, privies from dealing with or transferring the mark “TETMOSOL” to the 2nd Defendant or any other person and from interfering howsoever with the Plaintiffs use of the mark “TETMOSOL”.

(vii) An order of perpetual injunction restraining the Defendants either by themselves, their agents, servants or privies or any of them or otherwise howsoever from misrepresenting or causing, enabling or assisting others to misrepresent or offer for sale medicated soap with the name “TETMOSOL” or any other medicated soap in a manner identical to that of the Plaintiffs product or any colourable imitation thereby without adequately distinguishing such good from the Plaintiffs manufacture.”

IN THE ALTERNATIVE to reliefs (iii)-(viii) above, the Plaintiff claims as per the particulars stated under paragraphs 18 (i) to (ix) hereof being the amount incurred for the purchase of the “TETMOSOL” manufacturing plant/equipment together with other operational costs.

(viii) The sum of $1.94 million (one million, nine hundred and forty million United State Dollars) being the amount over paid by the Plaintiff on the purchase of Monosulfiram BP from the 1st Defendant since November 1992 as a result of the delusive value placed on it by the 1st Defendant.

(xx) Interest on the said sum of $1.94 million at the rate of 21% per annum from November 1992.