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In The Supreme Court of Nigeria
On Friday, the 8th day of
February 2008
Before Their Lordships
S.C. 296/2000
Between
And
Judgement of the Court
Delivered by
Aloma
Maryam Mukhtar
J.S.C
On a motion
ex parte brought by the appellant
against the defendants who is now the respondents the learned trial judge of
the Federal High Court holden in Lagos made
amongst others the following interim orders:-
" (1)
That leave is hereby granted to the Plaintiff/Applicant to sue the
Defendants/Respondents on their own behalf and as representing all members
of the class defined as engaged in the trade or business of selling or
offering for sale and/or manufacture of a dermatological preparation called
"Hot Movate Gel" purporting to be a product of
the plaintiff by adopting a trade mark, get up or/and package design similar
to and capable of being offered for sale as the Applicant "Movate"
Cream.
(2)
That the Defendants/Respondents and each of those on whose behalf the
Defendants/Respondents are sued whether acting by themselves or by their
servants or agents or otherwise howsoever are hereby restrained pending the
determination of the Motion on Notice for interlocutory injunction filed on
the 25th day of February, 1997 or further order, from doing or
authorising
the doing of the following acts or any of them namely:-
(a)
passing off or attempting to pass off or causing, enabling or
assisting others to pass off a pharmaceutical preparation known as "Hot
Movate Gel" not manufactured at the Applicant's
instance or of its merchandise as and for the “Movate
cream” or goods of the applicant by the use or goods of the
Applicant by the use or in connection therewith in the course of trade of
the Applicant's trade mark or adopting the distinctive get-up, package
design or label identical or similar in all essential details to that of the
applicant's "Movate cream" or any
colourable or deceptive imitation thereof
without duly distinguishing such trade mark, get-up, or label from those of
the applicant or by any other means,
(b)
manufacturing, or causing to be manufactured for them, importing,
selling or exposing or offering for sale or supplying or inviting offers to
acquire or distribute for the purpose of sale any pharmaceutical
dermatological preparation in particular "Hot movate
gel" with any package, get-up, label or tube, bearing the words “Hot
movate gel” or "movate"
or any other words so closely resembling the applicant's trade marks in
particular "Movate gel" registered as No
52632 or "Topmovate" registered as No
52623 as to be calculated to lead to the belief that the preparation ("Hot
movate gel") not of the applicant's manufacture
or merchandise are products of the applicant,
(c)
infringing the Applicant's copyright in
the registered design No 5456 in respect of the applicant's
registered trade marks known as "Movate
gel" and 'Topmovate", "Topsovate",
"Topvate" their get-up, label and package
design."
Then on 2/4/97 the defendant filed a motion on notice for the following
orders:-
"1.
An Order discharging the order of this
honourable
court made on the 3rd day of March 1997 on the grounds of
material misrepresentation and failure to make full and frank disclosure.
2.
An Order striking out the name of the 3rd defendant in
this case on the grounds that he is merely an agent of a disclosed
principal, that is, the 1st defendant in this case.
3.
An Order of leave of court to join the Registrar of Trade Marks and
Designs as a defendant to this suit to enable the defendant counter- claim
for a rectification of the Register of Trade Marks and Designs on the ground
that the plaintiffs registrations were obtained fraudulently, the plaintiffs
being merely agents and distributors of Esapilarma
of today's Movate cream and not the
manufacturers thereof."
The motion on notice was supported by an affidavit. It was moved and at the
end of the day, the trial judge after considering the addresses of learned
counsel vacated the interim injunction thus:-
"In the exercise of my discretion and having regard to the circumstances of
this case, I hereby order that the interim order of this court of 3/3/96 be
and is hereby vacated."
Unhappy with the above order the plaintiff appealed to the Court of Appeal,
"(1)
Whether by not determining all the issues arising and submitted to it by the
appellant as arising from its grounds of appeal for determination in the
appeal, the Court of Appeal did not deny the appellant (its right to) a fair
hearing of its appeal?.
(2)
Whether the Court of Appeal was right in holding that the appellant's
resort to a police investigation of a crime in the circumstance was a resort
to self-help and aimed at ridiculing the court and justified the vacation of
the interim injunction by the learned trial judge?
(3)
Whether the Court of Appeal should not have interfered with the
discretion exercised by the Federal High Court in respect of the appellant's
Motion for interlocutory injunction and exercised its powers under Section
16 of the Court of Appeal Act to rehear and grant the said interlocutory
injunction?"
The issues raised in the
respondents' brief of argument are:-
"1.
Whether the Court of Appeal by determining only the issues arising
from the grounds of appeal submitted to it by the parties amounted to a
denial of fair hearing.
2.
Whether the Court of Appeal was right in law in affirming the learned
trial judge holding that an Appellant who obtained an
ex-parte Order of injunction
restraining the respondents from selling products subject matter of dispute
to subsequently or simultaneously and without informing the court to
initiate police investigation against the same infringement and without
informing the police of a pending civil action has resorted to self-help.
3.
Whether the Court of Appeal was right in law in affirming the
learned trial judge holding, discharging the
interim injunction and ordering an
accelerated haring of the suit instead of
granting an interlocutory injunction after taking arguments from
both counsel on the Motion to discharge the
interim Order given that there were
conflicts in the parties affidavit evidence
which raised issues that went to the root of the
case."
At the hearing of the appeal exchanged briefs of argument were
adopted by the learned counsel. 1 will now
commence the judgment on this appeal with
the treatment of issue (1) in the appellant and respondents'
briefs of argument.
The gravamen of the appellant's complain under this issue is that the court
below jettisoned some of the issues raised by it, as rather than treating
all the five issues raised by it, the court reframed three issues. In his
argument learned counsel for the appellant has submitted that their five
issues were related to their grounds of appeal and that the law is that
issues are like pleadings intended to accentuate the real issues for
determination. See
Olowosago
v Adebanjo (1988) 4 NWLR part 86 page 275.
According to learned counsel their entire brief and the issues raised were
not examined or considered. Learned counsel further submitted that the three
issues framed by the court below did not correctly flow from the grounds of
appeal, and the arguments were overlooked in the judgment, and this
occasioned a miscarriage of justice to the appellant. Reliance was placed on
the cases of
Sapara v
U.C.H. Board (1988) 4 NWLR part 86 page 58,
Ukwunneyi v State (1989) 4
NWLR part 114 page 131, Oro v Falode
(1995) 5 NWLR part 396 page 385,
Titiloye v Olupo
(1991) 7 NWLR part 205 page 519. and
Nzekwu v Nzekwu
(1989) 2 NWLR part 104 page 373.
The
learned counsel for the respondents reiterated the essence of issues as
adumbrated in the appellant's brief of argument, referring to the cases of
Ogbuanyinva and Ors v Okudo
and Ors No 2 (1990) 8 NWLR part 146 page 55,
Oladele v The State (1991) 1 NWLR part 170 page
708, Busari and Ors v Oseni
and Ors (1992) 4 NWLR part 237 page 557,
and
Chief Coker v Chief Olukoga and Ors (1994) 2
NWLR part 329 page 648. He contended that in the cases of
Nzekwu v Nzekwu
etc relied upon by the appellant, the issues formulated therein were not
derived from any of the grounds of appeal. Learned counsel submitted that
since the issues reframed by the court in this case arose from the grounds
of appeal there is no miscarriage of justice occasioned.
It is imperative to look at the record of proceedings to analyse the
issues refrained by the lower court
vis
a vis the grounds of appeal. The
grounds of appeal as contained in the amended
notice of appeal on page 392 of the
printed record of appeal read the following (without their particular).
"1.
The learned trial judge erred in law when after having fully
heard and entertained on the merits, the pending
applications including the plaintiffs
Motion on Notice dated 24/2/97 for
interlocutory injunction, he directed an accelerated trial of the
substantive suit without granting or determining
the interlocutory
injunction the
requirements for granting or
determining which the plaintiff met.
2.
The learned trial Judge erred in law and occasioned miscarriage of
justice when without giving the appellant (or the parties) an opportunity to
comment or address him on the following issues not raised or canvassed or
relied on by the parties based his decision on them namely:-
3.
The learned trial Judge erred in law in denying the plaintiff of its
constitutional right to fair hearing when after the plaintiff had taken the
trouble and incurred expenses on filing and serving the said Motion on
Notice for interlocutory injunction dated 24/2/97 and fully argued same on
the merits, he failed or neglected to determine the Plaintiffs civil or
legal right or otherwise to it and vacated the interim injunction then
subsisting in favour
of the plaintiff, thereby exposing the Plaintiffs legal rights, trade marks
and designs to violation by the defendants.
4.
The learned trial Judge misdirected himself in holding as
follows namely:-
"Again, I am of the view that it is no longer justifiable for this court to
retain its interim order granted on 3/3/97 in that this court must in the
circumstances of the present application for an injunction, take account of
the conduct of an applicant in the instant case. In the present case what
transpired in the course of the proceeding is that the present applicant for
interlocutory injunction has resorted to self-help by reporting the same
matter to the police who are now investigating a complaint of adulteration
of the product Movate cream against the
Respondents. Following this complaint the respondent was detained by the
Police and was subsequently released on Bail. Although the applicant has
informed this court that he has taken steps to withdraw the complaint but as
at today the matter is still with the police .......
5.
The learned trial Judge erred in law in treating the plaintiffs
complaint to the Police of the adulteration of its
Movate cream and the police investigation of same as a resort to
self-help and abuse of his court's process and in using same as a basis for
vacating the interim injunction dated 3/3/97 subsisting in
favour of the plaintiff when ..........."
As has been said above the appellant raised five issues for determination in
its brief of argument, and the respondents raised seven issues in its brief
of argument, a position which many legal authorities frown on, (the grounds
of appeal being only five). It has been pronounced in many cases by
appellate courts that issues formulated for determination must not out
number the grounds of appeal, for each issue is supposed to have its base
and source from a ground or grounds of appeal. See
Oyekan
v Akinrinwa (1996) 1 NWLR part 459 page 128,
and
"Through a plethora of decisions this court and the Supreme Court have said
that issues formulated by parties must flow from the grounds of appeal filed
and such issues must not out number the grounds of appeal. The issues raised
by the respondent would seem to out-number the grounds of appeal; they are
however interwoven and repetitive .........
In considering this appeal, I shall like to be guided by the following
issues:
"(1) Is
it an abuse of the court process for an appellant who has obtained an
ex-parte order of injunction
restraining the respondent from selling products subject matter of dispute
to subsequently and without informing the court to initiate police
investigation against the same respondents on an allegation of the same
infringement and without informing the police of a pending civil action.
(2)
Whether the learned trial judge was right in discharging the interim
injunction and ordering an accelerated hearing of the suit instead of
granting an accelerated injunction after taking arguments from both counsel
on the motion to discharge the interim order; giving the facts of this case.
(3)
Whether by the ruling of 22nd July 1997 the constitutional
right to fair hearing of the appellant has been infringed."
It is
a relief that the learned counsel for the appellant has not contested the
power of the court below to frame or reframe issues, for authorities abound
that a court is empowered to frame issues where it is of the opinion that
the issues formulated by counsel are not succinct or suffer some
inadequacies. See
Oloriode
v Oyebi (1984) 1 SCWLR
page 390, N.P.A.v Panalpina
World Transport (Nig) Ltd (1974) 1 NMLR 82, and
Qba Lawal Fabiyi v
Chief Solomon Adeniyi & 2
ors (2000) 6 NWLR part 662 page 532. I do not also loose sight of
the argument of learned counsel for the appellant
that the lower court could or should have considered the issues of the
appellant. I suppose he has a point there, the issues being only five and in
tandem with the grounds of appeal, but then the pertinent question here is,
are the issues appropriate and do they flow from the grounds of appeal? In
the first place, the grounds of appeal in the amended notice of appeal were
five (as are reproduced above), and so the five issues raised in the
appellant's brief of argument correlates with the five grounds of appeal,
and at a careful study of both issues and grounds of appeal it could be said
to be related to the grounds of appeal. There are however some overlapping
in the issues, but then since the learned justice was at liberty to reframe
the issues for determination, there is no reason to condemn the procedure
adopted by him as long as the issues flow from the grounds of appeal. It is
very clear that reframed issue (1) supra is distilled and flows from grounds
(4) and (5) of appeal. Issue (2) is covered by grounds (1) and (2) of
appeal, and the third issue is distilled from ground (3) of appeal. So in as
far as the law is concerned the issues are competent and
are issues that can be treated to determine the appeal, as they were
in controversy. The situation in the authorities cited by the learned
counsel for the appellant are distinguishable from the present case, so I
fail to see that the lower court erred in reframing the issues upon which
the determination of the appeal was based, and so grounds (1) and (2) of
appeal to which issue (1) is married fails, as I am answering the said issue
in the negative.
In proffering argument to cover issue (2) supra, learned counsel for the
appellant submitted that its lodging of complaint of adulteration of its
product to the Police against the respondents was not because the trial
court's order was being disobeyed by the respondents and was being enforced
through the police, as the lower court seems to have understood the
situation and concluded that the report and investigation were aimed at
ridiculing the trial court. What the learned trial judge described as resort
to self help was the appellant's reporting of the same matter pending before
him to the police authorities who were then investigating a complaint of
adulteration of the product
Movate cream against the
respondents. Learned counsel further submitted that the matter reported to
the police was the crime of product adulteration which was different from
claim of injunction from infringement and passing off of registered trade
mark before the court. Learned counsel placed reliance on the cases of
Odogwu
v Odogwu (1994) 1 NWLR part 323 page 708, The
Registered Trustee, Apostolic Church v Olowoleni
(1990) 6 NWLR part 158 page 514, Governor of
Lagos State v Ojukwu (1985) 2
NWLR part 10 page 806, and
Halsbury's
Laws of England volume 45 4th Edition paragraph
1248 at page 577.
The learned counsel for the respondents after stating the position of things
and the action taken by the appellant, in his brief of argument proceeded to
submit that the appellant's report to the police by way of petition
initiated police investigation against the same respondents on an allegation
of the same infringement and without informing the police of the pending
civil action in which an
anton
pilla order has been granted and without
informing the trial court who should be seized of all the facts of the case,
is not just an abuse but also self help as it is aimed at totally
frustrating the legitimate healthy competition.
It is on record (see page 19 of the printed record of proceedings) that the
appellant did report the matter in controversy to the police, as is
evidenced by the proceedings I will reproduce here below. It reads:-
"Court:-
At the last hearing there was a complaint before this court by the
Respondents that the same subject matter is before the A. I. G. Force
C.I.D. Alagbon, who
ordered that the 3rd respondent be detained. He was later
released on bail. This court then took into consideration the fact that the
plaintiff had resorted to self help and therefore ordered learned counsel
for the plaintiffs/applicants to advise his client to withdraw the complaint
pending before the police before the adjourned date.
Nakpodia:-
We have withdrawn the petition.
Dr. Sodipo:-
This is not strictly
correct because the defendants/respondents have been visiting the police on
their invitation and have even made additional statement yesterday 21/7/97.
The police have collected samples of the defendant’s product on 21/7/97 and
have sent same for analysis. The police have refused to release the
defendant's product which they bought from the plaintiffs. The police still
came to the defendant's premises to conduct searches. The police refuted the
plaintiffs claim that they have withdrawn the petition. I submit that the
plaintiff has not done enough to ensure that the harassment which they
initiated by their petition will stop despite the interim order against us
........."
It is also on record that the trial court upon hearing the
exparte
motion of the plaintiff/appellant for injunction
inter alia made the orders
already reproduced above.
It is disturbing that the appellant after obtaining the above orders should
proceed to petition the police on the same matter. Order (b) supra as can be
understood was restraining the respondents from
inter-alia manufacturing the
product in controversy, and so should cover whatever the appellant deemed to
be the respondents interference with the product in controversy, albeit
adulteration of the product. The argument of learned counsel for the
appellant that the report lodged to the police was on adulteration of the
product does not reduce the gravity and consequence of the action of seeking
police intervention and self-help. The argument is not at all persuasive.
The appellant sought the court's intervention, and the court adequately
intervened by giving the reliefs and orders sought, but then the appellant
has proved that that was not enough for it was not satisfied, but resorted
to self help. This action definitely was contrary to the principle that a
litigant will not abuse a court's process that is already in existence by
resorting to self-help, and the courts will not tolerate such action or
abuse. The learned trial judge in his judgment after dealing with this issue
of reporting the matter that was pending in court to the police, (rightly in
my view) made this finding:-
"The fact that the complaint to the police was made simultaneously with the
filing of the present suit in my view amount to an abuse of the judicial
process of this court".
This finding having been made an issue of complaint was thrashed out by the
lower in its judgment which reads:-
"A resort to police investigation as done by the appellant is some what a
resort to self-help. Weighed against the background that no report was made
to the court of any disobedience of its order, it seems to me that the
action of the appellant is one aimed at bringing the court to ridicule. It
is intolerable under rule of law".
I completely endorse the above finding affirming the trial court's decision.
The submission of learned counsel for the appellant that the facts and
circumstances of this case are different from the situations of self-help
and thus justifying their action as contained on page 9 of their brief of
argument does not hold water. The fact that the appellant complied with the
order of the court to withdraw its petition was negated by learned trial
court in its judgment where it said:-
"Although the applicant has informed this court that he has on the
order of this court taken steps to withdraw the
complaint but as at today the matter is
still with the police."
The rule in the cases of Smith v
Selwvn (1914) 3 K.B.
page 98 is not evocable within the context of this case. The reliance on
Section 6 of the 1979 Constitution, and Section 230, 1979 Constitution
Amendment Decree 107 1993, and the cases of
A. G. Federation v
Dawodu (1995) 2 NWLR
part 380 page 712, and
Veritas
Insurance Co. Limited v Citi Trust Investment
(1993) 3 NWLR part 281 page 349 are not of assistance to the appellant
as far as this issue and discussion is concerned, as the circumstances of
these cases are distinguishable from the present case. What is at stake here
is the propriety of the appellant seeking police intervention after it has
obtained an order of the court. The complaint here revolves around the abuse
of court process, not the maintenance of a civil suit based upon an offence
that has not been disposed of.
In the light of the above discussion I answer the above issue in the
affirmative, and so dismiss ground (3) of appeal to which it is married.
Now to issue (3).
The submission of learned counsel for the appellant under this issue is that
the interest of fairness and justice would have been met if the appellant's
civil right to the interlocutory injunction sought had been determined
especially since a lot of time, energy, costs and efforts had gone into the
filing and hearing of the motion for interlocutory injunction. According to
learned counsel, as the requirements to be fulfilled by the appellant for
the granting of interlocutory injunction has been fulfilled the balance of
convenience is on the appellant's side and that damages will not be enough
to compensate the loss the appellant will suffer. The appellant was prepared
to give an undertaking as to damages should the interlocutory order later be
found to have been wrongly made, and the appellant's legal intellectual
property rights to the trade marks 'Movate gel',
Topmovate' as evidenced by its certificates of
registrations of the trade marks and usage of same in Nigeria, which the
appellant sought to protect from the respondents' continuous violation
pending trial. Learned counsel placed reliance on the cases of
Adene
v Dantubu (1988) 4 NWLR part 86 page 309,
Obeya Memorial Specialist Hospital v Attorney
General of the Federation (1987) Vol. 18 NSVV part II page 961,
Kotoye v CBN (1989)
1 NWLR part 99 page 419, Ladoke v
Olatayo (1992) 8 NWLR part 281 page 605, and
University of Lagos v M. I. Aigoro (1985) 1
NWLR part 1 page 143.
In
this brief of argument learned counsel for the respondent has contended that
in granting or refusing an application for interlocutory injunction, a court
must exercise its discretion judicially and judiciously, and an appellate
court will not normally set aside or interfere with the exercise of
discretion of the lower court once it is clear that it was exercised on just
and legal reasons i.e. judicially and judiciously. He placed reliance on the
cases of Idoko
v Ogbeikwu (2003) 7 NWLR part 819 page 275,
Royal Exchange Assurance (Nig) Ltd. v Aswani
Textile Industries Ltd. 3 NWLR part 227 page 1, and
Saraki
v Kotoye (1992) 9
NWLR part 264 page 156.
A
careful study of the record of proceedings reveals that facts that were in
conflict have been disclosed, and to go into a
detailed treatment of the affidavit evidence will be tantamount to dealing
with the substantive issues at stake. The law is trite that at that stage of
the proceedings i.e. interlocutory application the court should not attempt
to go into the merit of the matter in controversy else it is tempted to
determine the case at that stage and leave nothing for the just and proper
determination of the suit after the hearing.
See Registered Trustees of
P.C.N v Registered Trustees of
Ansar-ud-deen Society of Nigeria (2000) 5 NWLR
part 657 page 368 and
John Holt Nigeria Ltd &
ors v
Holts African
Workers Union
of Nigeria and Cameroons
(1963) 1 AWLR page 379.
In Halsbury's
Laws of England fourth Edition Re issue,
vol. 24 page 853, the principles
upon which the court acts are stated thus:-
"On application for an injunction in aid of a plaintiffs alleged right, the
court will usually wish to consider whether the case is so clear and free
from objection on equitable grounds that it ought to interfere to preserve
property without waiting for the right to be established. This depends upon
a variety of circumstances, and it is impossible to lay down any general
rule on the subject by which the court ought in all cases to be regulated,
but in no case will the court grant an interlocutory injunction as of
course.
The tendency is to avoid trying the same
question twice and to grant
injunctions only in clear cases."
(Underlining is mine)
It was in this wise that the learned
trial judge was cautious to make the following observations and findings:-
“Court :- Ruling
I have carefully gone through the arguments of counsel for and against the
two applications which have been canvassed before me. First and foremost, I
hold the view that both applications call for the exercise of my discretion
which must be exercised both judicially and judiciously.
Again, it seems to me on a careful analysis of the averments contained in
the affidavits and counter affidavits as well as the submissions of learned
counsel for the applicant and respondent in the two applications that the
issue of two competing rights have been raised which to me cannot be
conveniently disposed of at this stage of the proceedings by affidavit
evidence but are issues to be determined by oral evidence at the trial of
the substantive suit. The duty placed therefore on this court in the
determination of any interlocutory application pending the trial of the
substantive suit is that care should be taken not to make pronouncements
which may prejudice the trial of the claim filed and still pending before
the court - See
Ojukwu v
Govt of Lagos State (1986) 3 N.W.L.R. (part 26)
at page 39. A corollary to the above is that a court is not to try the
issue in contention in a case twice, first while considering the application
for interlocutory injunction and secondly during the trial. The correct
thing to do is to stop hearing the application and accelerate the trial of
the substantive Suit. See
The
John Holt case (1963)1 ANLR page 379 as applied in Nigerian Civil Service
Commission v Essien (1985) 3
N.W.L.R. Part 12 page 312.
I have come to the conclusion that the two principles of law
enunciated above are applicable to the instant case. I believe the
better approach in a situation as this, is to fix the case for hearing and
decide the issue once and for all. This suit is therefore to be given
accelerated hearing and I hereby order pleadings accordingly.”
The issuance of orders of interlocutory matters being one purely at the
discretion of a court is a matter that should be exercised judicially and
judiciously, and once an appellate court is satisfied that this principle of
law
has been met, it will hesitate to interfere with the decision of the trial
court.
In this vein, the lower court was therefore right when it said:-
"Giving the facts of this case, it is my considered view that the trial
judge has exercised his judicial discretion
bona fide. To interfere with the
orders contained in the ruling of 22nd July 1997 is to fetter
that discretionary power of the learned trial judge."
In the light of the above discussion, I resolve the last issue in the
appellant's brief of argument in
favour
of the respondents, and so dismiss
the ground of appeal to which
the said issue is married.
In the final analysis the appeal has no merit whatsoever, and I so
dismiss it. The judgment of the Court of Appeal
is hereby affirmed. I order the costs of
Judgment delivered by
Aloysius
Iyorgyer Katsina-Alu.
J.S.C.
I have read before now in draft the judgment delivered by my learned brother
Mukhtar J.S.C in
this appeal. I entirely agree with it and, for the reasons given therein, I
also dismiss this appeal with
Judgment delivered by
Mahmud Mohammed
J.S.C.
The dispute between the parties in this appeal which are registered
Pharmaceutical Chemical and Cosmetics Companies, started at the trial
Federal High Court Lagos where the Plaintiff which is now the Appellant
commenced it's action against the Defendants which are now the respondents
claiming against them jointly and severally -
"1.
An injunction restraining the
respondents
by themselves, their servants, agents or privies or otherwise howsoever
from:-
(a.)
Manufacturing or causing
to be manufactured for them, importing, selling or exposing or causing to be
exposed for sale, supplying or inviting offers to acquire or distribute for
the purpose of sale any pharmaceutical or cosmetic product bearing the trade
mark "Hot Movate Gel' or 'Movate'
or bearing a name similar to the Plaintiff's registered
trade marks 'Topvate,' 'Topsovate,'
or any other words or products not of the plaintiff's origin or made at the
plaintiff's instance so closely resembling or similar to the plaintiff's
aforesaid registered trade marks or bearing the plaintiff's registered
design No 5456 in respect of 'Movate'
cream or an obvious or deceptive colourable
imitation thereof as to mislead or deceive the plaintiff's customers or the
public further and/or alternatively;
(b.)
Infringing the plaintiff's registered trade marks numbers 52632 (Movate
Gel), 52621 (Topvate cream), 52633 (Topsovate)
and 52623 (Topmovate) and/or the plaintiff's
copyright in its Registered Design No 5456 in respect of its
registered design 'Movate' cream pack.
2.
Delivery up for public destruction or destruction up on oath of all
articles in the defendants' possession custody or control and which infringe
the plaintiff's interest and copyright respectively in the aforesaid
registered trade marks and/or design or sale of which by the defendants will
be a breach of the said injunction from passing off or the infringement of
the plaintiff's aforesaid trade marks and design.
3.
The sum of
4.
Costs.
5.
Such further or other
reliefs as this
Honourable
Court may deem fit."
These particulars of claim of the appellant were accompanied by a motion ex-parte
for an interim injunction in terms sought in the action together with an
interlocutory motion on notice for the same injunctive relief pending the
hearing and determination of the substantive action. The
ex-parte motion for interim order
of injunction was duly heard and granted by the trial Court while the motion
on notice for similar interlocutory relief was adjourned for hearing, when
the respondents must have been served. On being served with the processes of
the court in the matter, the respondents reacted by filing a motion on
notice for an order setting aside the interim order of injunction granted
ex-parte. This motion and the
appellant's motion for interlocutory injunction were taken together by the
trial court which in its ruling on 22nd July, 1997, set aside the
interim order of injunction and in place of the appellant's application for
interlocutory injunction against the respondents pending the hearing and
determination of the substantive action, granted accelerated hearing of the
case and ordered the parties to file their pleadings.
The appellant who was not happy with this approach of the trial court to the
case, promptly appealed against the order to the Court of Appeal which after
hearing the parties, dismissed the appeal in its judgment delivered on 22nd
March, 2000. It is against this judgment that the appellant is now on a
further and final appeal to this Court raising the following three issues
for determination -
"(1)
Whether by not determining all the issues arising and submitted to it by the
appellant as arising from its grounds of appeal for determination in the
appeal, the Court of Appeal did not deny the appellant (its right to) a fair
hearing of its appeal?
(2)
Whether the Court of Appeal was right in holding that the appellant's
resort to a police investigation of a crime in the circumstance was a resort
to self help and aimed at
ridiculing the court
and justified the vacation of the interim injunction by the learned trial
judge?
(3)
Whether the
Court of Appeal should not have interfered with the discretion exercised by
the Federal High Court in respect of the appellant's motion for
interlocutory injunction and exercised its powers under
Section
16 of the Court of
Appeal Act
to rehear and grant
the said interlocutory injunction?"
Similar issues although differently worded were also raised in the
respondent's brief of argument for the determination of the appeal.
The principal complaint of the appellant in this appeal is the action of the
trial court in vacating the ex-parte
order of interim injunction earlier granted to it and the replacement of the
relief sought by it in its motion on notice for an order of interlocutory
injunction against the respondents pending the hearing and determination of
the substantive case, with an order of accelerated hearing of the action,
which was to the disappointment of the appellant, affirmed by the court
below. The reasons given by the trial court for the stand it took in the
matter are contained at pages 355 - 356 of the record in a short ruling of
the court given on 22nd July, 1997.
"The duty placed therefore on this Court in the determination of any
interlocutory application pending the trial of the substantive suit is that
care should be taken not to make pronouncements which may prejudice the
trial of the claim filed and still pending before the Court. See
Ojukwu
v Government of
I have come to the conclusion that the two principles of law enunciated
above are applicable to the instant case. I believe the better approach in a
situation as this, is to fix the case for hearing and decide the issues once
and for all. This suit is therefore to be given accelerated hearing and I
hereby order pleadings accordingly."
On
this lucid stand of the trial court, the court below was strongly behind it
and rightly in my view refused to interfere with the discretion exercised in
the matter by the trial court. For the same reasons, I have no ground
whatsoever to disagree with the court below. The two courts below were
indeed properly guided by many decisions of this court notable among which
are
John Holt (Nig.) Ltd. v Holts African Workers Union of Nigeria and Cameroons
(1963) 2 S.C.N.L.R. 383; Nigerian Civil Service Union v
Essien (1985) 3 N.W.L.R. (Pt. 12) 185 and
Obidiegwu Onyesoh v
Nze Christopher Nnebedun
& Ors. (1992) 3 N.W.L.R.
(Pt. 229) 315 at 341 - 342 where Nnaemeka-Agu,
J.S.C stated the position of the law -
"It does appear that the defendant instead of taking advantage of or
pursuing the order for accelerated hearing decided to appeal against the
order for interlocutory injunction.
This is quite a surprising course to take. For quite apart from the
fact that this has apparently led to further delay in the hearing of the
substantive suit, which is said to be still pending since March, 1988, it
should now be obvious to parties and their counsel from a gamut of decided
cases that in practically most applications for interlocutory injunction the
justice of the case can quite often be met by accelerating the hearing
instead of granting an order of
interlocutory injunction. A successful application for interlocutory
injunction simply keeps matters in status quo until completion of hearing.
But a successful hearing disposes of the matter for good.
The better view is, therefore, that whenever it is possible to
accelerate the hearing instead of
wading through massive affidavits and hearing lengthy arguments on
interlocutory injunction, the Court should accelerate the hearing and decide
finally on the
rights of the parties."
From the principle of the law expounded above, it is quite clear that the
option taken by the plaintiff/appellant in abandoning the chance to have his
case given an accelerated hearing to pursue an appeal to the Court of Appeal
and further appeal to this court for the restoration of its interim
ex-parte order of injunction or
the grant of an interlocutory injunction, is not at all a wise decision.
This is because taking into consideration that the main relief in the
substantive action is an order of perpetual injunction against the
defendants/respondents restraining them from committing various acts in
breach of the rights of the appellant in connection with its registered
trade marks and design, accelerated hearing of the matter given on 22nd
July, 1997 could have settled once and for all, the respective rights of the
parties at the trial court. It is really unfortunate that the appellant
having thrown away the opportunity given by the trial court to the
accelerated hearing of the case, had to spend more than ten years chasing an
interlocutory injunction up to the Supreme Court, particularly after being
fully aware that the earlier interim order of injunction obtained
ex-parte, was no longer in force.
It is for the above reasons and fuller or more comprehensive reasons
contained in the lead judgment of Muhktar,
J.S.C, just delivered and which I have had the
opportunity to read before today that I also dismiss this appeal with
Judgment delivered by
Francis Fedode Tabai
J.S.C.
I have had the benefit of reading, in advance, the draft of the leading
judgment of my learned brother Mukhtar
J.S.C and I am also of the firm view that the
appeal be dismissed for lack of merit.
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