Chanrai & Co. (Nigeria) Ltd V Khawam (1965)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

This is an appeal from the judgment of the Ibadan High Court (Somolu, J.) awarding in favour of the respondent, hereinafter referred to as the plaintiff, a total amount of £6,832-10s as damages and 500 guineas costs. The appellants, hereinafter referred to as the defendants, are also restrained by injunction from importing into Nigeria, selling or exposing for sale the textile goods with which the plaintiff’s case is concerned. The plaintiff’s writ is endorsed as follows:-

“The plaintiff claims against the defendant Company:

(1)     An injunction restraining the defendant Company its servants or agents from importing or causing to be imported into Nigeria, selling or exposing or causing to be sold or exposed for sale, any textile piece goods bearing the plaintiff’s Registered Design No. 482244 or an obvious or colourable imitation thereof;

(2) £50,000 damages for the infringement by the defendant Company of the plaintiff’s said Registered Design, or an enquiry into an account of sales of all piece goods to which the said design or an obvious or colourable imitation thereof shall have been applied and of the profit made thereon;

(3) Delivery for public destruction of all textile piece goods to which the said design or an obvious or colourable imitation thereof shall have been applied that are in the possession or under the control of the defendant Company its servants or agents.

(4) Costs.

(5) Further or other relief.

In his statement of claim the plaintiff avers in substance that he is the originator of a particular design registered in respect of textile goods both in the Manchester branch of the Designs Registry of the Patent Office in the United Kingdom and also in Japan and that after importing for sale textile goods bearing his registered design, the defendants injected into the market textile goods of the same design, or a colourable imitation thereof, but of a cheaper quality causing him “loss of reputation and damage” as the defendants were selling under his own price. He claimed a total sum of £50,000 special and general damages made up as follows:

Total number of pieces imported and brought into stock 12,835 Total number of pieces sold from stock between mid/May and 15th July, 1962, at 32s a piece 9,505 Total stock unsold at July, 1962 3,330 Average profit for 14 months = 9,505 x 5s = £2,376-5s-0d Loss of profit on 3,330 pieces £sd = 3,330 x 5s 832 10 0 Estimated loss of profit for unexpired Portion of 1st five-year period of registration, = £2,376 x 60 14 10,183 8 7 Estimated loss of profit for first five-year period of registration 11,01687 Estimated loss of profit for two further five-year period of registration 22,032172 Paid to supplies for changing block of infringed design (to minimize loss of profit on 12,000 pieces ordered on 15th June, 1962) 50000 33,04959 GENERAL DAMAGES 16,450  14  3 £50 ,00000

At the close of the plaintiff’s case learned counsel appearing for him applied to the court to amend his statement of claim and the relevant note is to the following effect:-

“Williams applies to strike out the words `made up as follows’ and all the figures following them on page 2 of the Statement of Claim and to make £33,049-5s-9d at page 3 special damages. Chukwura does not object. Order: Amendment granted as sought.”

In the light of this amendment the particulars of damages claimed by the plaintiff thereafter read as follows:-

£sd Special Damages 33,04959 General Damages 16,450143