Dike Geo Motors Limited & Anor. V. Allied Signal Inc. & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
M. L. GARBA, J.C.A.
This appeal is against the decision of the Federal High Court Lagos in its ruling delivered on 13/4/99 in Suit No. FHC/L./CS/59 1/95. The Notice of Appeal dated the 27/4/99 contains two (2) grounds as follows:-
“GROUND ONE
The learned judge erred in law when he held that “the present action is not frivolous, vexatious and an abuse of court process” when he ought to have dismissed the action for being frivolous, vexatious and abuse of the process of court.
GROUND TWO
The learned judge misdirected himself in law when he held that “the contention of the Defendant’s in this case appears to be hinged on the belief that the Defendants have a valid legal defence to the Plaintiffs’ action.”
Put briefly, the facts involved in the appeal are that Respondents herein filed an action before the lower Court in which they made claims of infringement of trade marks and passing off against the Appellants herein.
In the course of the trial, the Appellants filed an application praying for the dismissal of the Respondents’ claims on the ground that they are frivolous, vexatious and an abuse of the lower Court’s processes. The basis of the said application was that the trade mark complained of was registered in name of another Company on 8/10/96 under NO.53200 in Class 4. A Copy of the registration certificate as well as notice of opposition by the 1st Respondent to that other Company’s Dom Frank Nigeria Ltd., application were attached to the affidavit in support of the application.
The Respondents filed a counter affidavit and after a consideration of the evidence as well as addresses of counsel, the lower Court dismissed the ‘Appellant’s application.
Briefs of arguments were settled at Appellant’s brief, Respondents brief and Appellant’s reply brief in accordance with the Rules of Court.
At the hearing learned Counsel adopted their respective briefs and urged us to find in favour of their clients pursuant to their positions therein.
In the Appellant’s brief dated 23/6/04, and deemed properly filed on 29/6/04 though filed on the 25/6/04, the following issues were set out as arising for determination in the appeal:-
“1. Whether the Plaintiffs claim for infringement could be said to be viable from the period the Plaintiffs initiated opposition proceedings in accordance with Section 20 of the Trade Marks Act Cap 436 LFN 1990 to the Application made for the registration of the trade Mark Allied & Device under NO.TP18856 in class 4 which culminated in the Registration under No. 53200 in class 4 in the name of Domfrank Nigeria Limited.
- Whether the entire claim of the Plaintiffs against the Defendants has become frivolous vexatious and an abuse of the process of the Honourable Court by reason of the opposition and rectification Proceedings taken by the Plaintiffs pursuant to Section 20 and 38 of the Trade Marks Act Cap.436 Laws of the Federation of Nigeria 1990.”
These issues were not, as is the usual and diligent practice in good brief writing, tied or related to the grounds of appeal contained on the Appellant Notice of Appeal. The need to so do cannot be over emphasised as the practice enables the Court to readily identify from which ground/s of appeal each issue formulated by the parties to an appeal, arises.
The trite position of the law is that only issues formulated or distilled from competent grounds of appeal would be live, competent and worthy of consideration and determination in an appeal. AJA V OKORO (1991) 7 NWLR (Pt.203) 260, BRITISH AMERICAN INSURANCE CO. V OMOLAYO (1991) 2 NWLR (Pt.176) 721, TUKUR V GOVERNMENT OF TARABA STATE (1997) 6 NWLR (Pt.510) 549 and AFRICAN PETROLEUM V OWODUNNI (1991) 8 NWLR (Pt.210) 391.
It is not only the Appellant’s brief that suffers from the above defect as it appears to have infected the Respondent’s brief with the ailment being a reaction thereto. In the Respondent’s brief filed on the 8/9/04 two (2) issues were formulated by Counsel as follows:-
“1. Whether the action for infringement of trade mark and passing-off at the Federal High Court ought to have been terminated upon the commencement of opposition or a rectification proceedings subsequently initiated before the Registrar of trade marks?
- Whether the fact of the registration of trade mark No.53200 in favour of Dom Frank Nigeria Limited renders the action before the lower court totally doomed to failure?”
Like the case of the Appellant, the issues were not specifically identified with the grounds of appeal but which were said to been taken into account in the formulation. It would be very simplicistic to assume that merely because there are 2 grounds of appeal, the two issues formulated by counsel must have arisen from the two grounds. Counsel should always endeavour to specifically state and indicate from which ground/s of appeal an issue formulated by them enures, arises or relates as required by established and accepted in the current practice of brief writing.
A careful reading of the two grounds of appeal filed by the Appellant would show that only one vital issue requires determination in the appeal.
This lone and narrow issue is:-
“Whether or not the action of the Respondent before the lower Court was frivolous, vexatious and an abuse of its processes.”
That was the issue submitted by the Appellants to the lower Court, canvassed by the parties and decided upon by that Court.
The pith of the case put forward both at the lower Court and in this appeal by the Appellant is premised on the following facts:-
(1) That the trade mark in question was registered in the name of Domfrank Nigeria Limited as owner, under No.52300 in claim 4.
(2) That the Respondents, had initiated and participated in opposition proceedings to the registration of the trade mark in the name of Domfrank Nigeria Limited.
The submissions for the Appellant on the issue for determination are that in law an action for infringement presupposes that the Defendants alleged to have infringed the Plaintiffs’ trade mark do not have legal rights to the trade mark in question. Where the Defendant has a right to the trade mark, he should make an application for registration upon which the action for infringement would be stayed. Sections 5, 6 and 20 of the Trade Marks Act Cap 436, LFN 1990 (hereinafter to be called Cap.430) as well as Atkins Court forms, 2nd Edition, Volume 38, 1978 issue, paragraph 24 at page 128 were relied on. According to Counsel for the Appellant, Cap. 436 does not contemplate the infringement action and the application for registration to co-exist in respect of the same trade mark. It was contended that since the Respondent initiated and participated in the opposition proceedings that culminated in the registration of the trade mark in the name of Domfrank, its action for infringement against the Appellants, was not viable. It was argued that under Section 13(2) of Cap.436, it is permitted to use two identical registered trade marks independently and each party claims bona fide. The case of ELECKTROTECHISCHE FABRIK SCHMIDT & CO. OTHERWISE DAIMON-WERKE GMBA V BATERIA SLANY NARODNI PODNIC (1972) All NLR 143 was cited for the submission by Counsel who maintained that the Respondent’s claim, was for the reasons given by him, unsustainable against the Appellant. He also referred to the cases of SARAKI V KOTOYE (1992) 9 NWLR (Pt.264) 158 at 188 and NV SCHEEP V MV “S.ARAZ” (2001) FWLR (Pt.34) 543 at 589-90 on the concept of abuse of judicial process and insisted that the Respondent’s claim before the lower Court was not viable and an abuse of the process of the Court. Finally we are urged to allow the appeal, set aside the ruling of the lower Court and dismiss the Respondent’s claim before that Court.
For the Respondent it was submitted by virtue of Section 56(9) of Cap.436, the proceedings before the lower Court could not be unviable by reason of any proceedings before the Registrar of Trade Marks. That Section 13(2) of Cap.436 and the Atkins Court forms only gives the Court a discretion to stay proceedings in infringement action where a Defendant applies for registration as a concurrent user of the trade mark in dispute if he ‘believes he is so entitled to do. That the facts and cases of the appeal are different and so the above position does not apply here.
In addition, it was argued for the Respondent that the claims before the lower Court were for infringement and passing off of the trade mark which was registered only in class I under registration No.49735. That the trade mark registered in the name of Domfrank Nigeria Limited with Registration NO.53200 was for goods in class 4 and the two (2) are different, making the claims of the Respondent viable.
Furthermore, it was submitted that the claim for passing off remains viable and to be decided by the lower Court as the registration of a trade mark does not give the right to use it to deceive. In conclusion the Respondent counsel urged us to dismiss the appeal. In the Appellants’ reply brief it was submitted that Section 56(9) of Cap.436 is not applicable as it does not contemplate opposition proceedings under Section 20. That the decision to register trade marks in any class by the Registrar of Trade Mark is final under Section 4 of Cap.436. Once more, we are urged to allow the appeal by the learned Counsel for the Appellants.
Now, what constitutes an abuse of the Court’s process cannot be or better put, is incapable of being defined in a hard and fast rule manner. As demonstrated by the Supreme Court in the cases of SARAKI V KOTOYE and NV SHEEP V MV’S ARAZ” (supra) and the Supreme Court Practice 1988 edition cited by Counsel, even where proceedings properly initiated and viable when instituted have by reasons of subsequent events become inescapably doomed to fail, may be dismissed as an abuse of the court process. See also OKAFOR V ATTORNEY-GENERAL OF ANAMBRA STATE (1991) 6 NWLR (200) 659 and ONYEABUCHI V INEC (2002) 8 NWLR (Pt.769) 417 at 443. However the term “abuse of Court process” is generally applied to proceedings that are wanting in bona fide and are frivolous and vexatious or oppressive.
It may also mean improper use of the Court process, may involve some bias, malice, deliberateness and desire to misuse or per vert the process or system of administration of justice to the annoyance, embarrassment and irritation of an opponent. The term is undoubtedly imprecise because it involves situations and circumstances of infinite variety and can manifest itself in so many ways. See OLAWUNMI V MOHAMMED (1991) 4 NWLR (Pt.186) 516, OLUTIRIN V AGAKA (1998) 6 NWLR (Pt.554) 366, ANUBO V AIVELERU (1993) 3 NWLR (Pt.280) 126 and AGWASIM V OJIECHIE (2004 4 SC (Pt.11) 160.
Bearing the above position of the law and the facts and circumstances as disclosed in the case before the lower Court, was that Court right to have held that it was not frivolous, vexatious and an abuse of its process? In determining this question, the affidavit evidence placed before the lower Court upon which the Appellants grounded the application for dismissal would be the primary consideration. Specifically, paragraphs 4 – 12 of the 16 paragraphs affidavit are directly relevant. They are:-
- That prior to the commencement of this action, some times on the 4th day of August 1993, Domfrank Nigeria Limited owner/proprietor of the Trade Marks Allied & Device with distinctive feature as “A2 – dimensional upwardly curved device, “E5” “DOT 3” A distinctive Red, Black and white colour get-up applied for registration of the said Trade Mark under NO TP 18856/93S in class 4 at the Trade Mark Registry. Annexed herewith as “Exhibit A” is a copy of the acceptance Form from the Federal Ministry of Trade and Commerce.
- That further to paragraph 4 above the Respondents through their solicitors Messrs Allan & Ogunkeye the solicitors to the Respondents in this suit filed an opposition to the said Registration by Domfrank Nigeria Limited of the Trade Marks as described in paragraph 4 above. Annexed herewith as exhibit B is the Notice of opposition dated the 22nd day of November 1995 filed by the Respondents at the Trade Marks Registry.
- That subsequently the said Domfrank Nigeria Limited on the 8th day of October 1996 was issued a certificate of Registration for the Trade Marks Allied & Device Registered under NO.53200 in class 4 at the Trade Marks Registry which is Applied to cans of “Allied Brand” of Brake and clutch Fluid produced by the said Domfrank Nigeria Limited Annexed herewith as exhibit C is the certificate Registration dated 8th day of October 1996 issued to Domfrank Nigeria Limited.
- That Domfrank Nigeria Limited has consistently applied its Registered Trade Marks Allied & Device with its distinctive features Registered under NO.53200 in class 4, to its Allied Brand of Brake and Clutch fluid.
- That the Respondents’ commenced this action on 29th day of May 1995, after Domfrank Nigeria Limited had made the Application for the Registration of its Trade Marks “Allied & Device” Registered under NO.53200 in class 4.
- That the 1st Applicant is the agent of the said Domfrank Nigeria Limited and the sole distribution of the Allied Brand of Brake and clutch fluid produced/canned. By Domfrank Nigeria Limited with its Registered Trade, Marks Allied & Device Registered under 53200 in class 4.
- That apart from the Trade Marks Allied & Device with Its distinctive feature and get-up registered under No. 53200 in class 4 applied by Domfrank Nigeria Limited to the pack of its Allied Brand of Brake and Dutch Fluid, the Applicants and the said Domfrank do not apply any of the Trade Marks of the Plaintiff Allied & Device registered under Nos. 40186, 40188, and 40189 in classes 12, 9 and 1 respectively as well as the Plaintiffs Trade Mark Bendix & Device “DBA” with parrellel lines design registered under No.49735 in class 1.
- That Domfrank Nigeria Limited the Producers of Allied Brand of Brake & Clutch Fluid, merely applies its registered Trade Marks Allied & Device with its distinctive features as A2 – dimensional upwardly curved device “E5″ a distinctive Red, Black and White Colour getup, to its Allied Brand of Brake and Clutch Fluid, sold and distributed by the Applicants.
- That having regard to the registration of the Trade Marks Allied & Device under No. 53200 in class 4 applied by Domfrank Nigeria Limited to its Allied Brand of Brake & Clutch fluid, sold and distributed by the applicants, the Respondents’ action is an abuse of the process of the Honourable Court.”
The correct, sincere and in disputable import of these paragraphs is that because, Appellants said the disputed trade mark was registered in the name of Domfrank Nigeria Limited as NO.S3200 in class 4 (as in Exhibit C) after opposition proceedings initiated by the Respondent, the Appellants are not liable to the claims before the lower Court.
The lower Court in its ruling had held inter alia; at page 27 of the record of appeal thus:-
“The contention of the learned counsel for the Defendants in this case appears to be hinged on the belief that the defendants have a valid legal defence to the Plaintiffs claim. The fact that the Defendants have a valid legal defence to the claims does not make the action frivolous, vexatious and an abuse of the Court process.”
From the evidence proferred by the Appellants in their application to the lower Court, the above finding is on unassailable and cannot be faulted. Whatever defence the Appellants might have to the claims of the Respondent as disclosed in their Statement of Defence which they filed, cannot render the action an abuse of the Court process in the circumstances of the matter. The Appellants, instead of the lower Court, were under a gross misapprehension of the provisions of particularly Sections 5, 6 and 20 of Cap.436 to have filed the motion for dismissal of the Respondents’ claim on the ground they did when they had filed a statement of defence and trial had commenced.
All the rather windy and sinuos submissions of learned Counsel for the Appellant arose out of that misconception and so are wobbly and untenable the lower Court rightly refused to be beguiled by such verbose and unsustainable arguments in its ruling an the application.
Before ending this short judgment I am constrained by the facts and circumstances of this appeal to observe that an the pre of exercising their constitutional right of appeal, the Appellants have deliberately stalled and even attempted to frustrate the claims of the Respondents be fare the lower Court now for seven (7) years. As indicated at the beginning of this judgment, the ruling an the Appellants’ motion was delivered an 13/4/99 and the Notice of Appeal was filed an 28/4/99. However from the records of the appeal, it took the Appellants’ mare than three (3) years to compile the record of appeal and apply far a departure from the Rules of Court to use them far the appeal an 17/10/02. This was prompted by the application of the Respondents far the dismissal of the appeal for want of deligent prosecution filed an 21/7/00.
After the grant of the Appellants’ motion far departure filed an 17/10/02, they again abandoned the appeal until the Respondents again filed a motion an 23/1/04 for the dismissal of the appeal for want of diligent prosecution. The Appellants’ then filed a motion for enlargement of time to file Appellants’ brief on the 25/6/04 which was granted on 29/6/04. In their now proven character, the Appellants did not file their Reply brief within the prescribed period, after the Respondents filed their Respondent’s brief an 8/9/04. They applied far extension of time to do so by a motion filed an 29/11/04. The appeal on an interlocutory decision was eventually heard and now judgment delivered in the year 2006; about seven (7) years after it was filed by the Appellants who from the above chronicle of events were responsible far the deliberate and unnecessary delay. I would like to say that the exercise of the right of appeal particularly in respect of interlocutory decision such as the one in the present appeal must be viewed, considered and treated in line with another fundamental constitutional right of a party to the determination of his civil rights and obligations within a reasonable time by a Court as guaranteed in Section 36(1) of the 1999 Constitution of Federal Republic of Nigeria.
The right to appeal provided in Sections 241 and 242 should not be allowed to over shadow and render ineffective, the fundamental right guaranteed under Section 36(1). That the substantive case before the lower Court had to lie coma tose for seven years awaiting the outcome of the present appeal before it could be determined on, the merits cannot be justified in view of the constitutional provisions. Counsel cannot escape blame of most for the unnecessary, expensive and avoidable delay in this regard. I commend to Counsel the advise of Ogbuagu, JSC. in the recent case of MAGIT V UNIVERSITY OF AGRIC MAKURDI (2005) 19 NWLR 211 at page 250, paragraph A-E. His Lordship said:
“where a Counsel finds and knows that there no chances of his appeal succeeding, he should honourably throw in the towel and think less of his fees and more of the fact that he is also an officer and Minister in the temple of justice. There is the need, therefore, for Counsel to have confidence in the success of a case before accepting it.”
The cases of K. K. TIXTILES ALLIED PRODUCTS V HARRY STEPHENS SHIPPING (1989) 1 NWLR (Pt.95) 115 and OJO V PHILLIPS (1993) 5 NWLR (Pt.296) 75 were referred to by his Lordship.
In the final result, the appeal for lacking in merits, fails and is dismissed by me. The sum of N10,000.00 is assessed as costs to be paid by the Appellants in favour of the Respondents.
Other Citations: (2006)LCN/2158(CA)
