F. O. Ajibowo And Co. Ltd Vs Western Textiles Mills Ltd (1976)
LawGlobal-Hub Lead Judgment Report
FATAYI-WILLIAMS, JSC.
The plaintiffs, a limited liability company, are textile manufacturers at Ilupeju Industrial Estate in the Ilupeju district of Lagos. The defendants are also a limited liability company. They deal in textile piece goods and have been the customers of the plaintiffs since 1970.
PAGE| 2 After their incorporation on 15th November, 1972, the defendants acquired all “the rights, benefit and title” in respect of a textile check design known as K13/14 (Registration No. 000344). The design had been previously registered in the name of Francis Ajibowo & Co. who was issued with a certificate of registration by the Registrar of Patents and Designs. The certificate (Exhibit. 1) is dated 30th December, 1971. Earlier, on 13th August, 1971, Francis Ajibowo & Company (the defendants’ predecesso- in-title of the design), by letter ordered some 10,000 yards of the design from the plaintiffs. The letter (Exhibit 2) reads- “Dear Sir, Booking 10,000 yards on a new design We write to book 10,000 yards on our new design. We would like the goods in the four colour ways, each to the quantity of 2,500 yards as attached with this booking order.
The colour 4 is a different design but we would want its colour to be our colour 4 on our this new design. We would like the goods supplied to our company and our company only. Please early production and supply will be appreciated. Thanks in advance. Yours faithfully, FRANCIS AJIBOWO & COMPANY FOR Francis Ajibowo Managing Director.” The plaintiffs accepted the order and completed it between October and December, 1971. According to the plaintiffs, Francis Ajibowo & Co. took delivery of only 7,774 yards of the said order.
They refused to clear the balance of 2,226 yards in spite of repeated requests from the plaintiffs to do so. Because of this, a second order by Francis Ajibowo & Co. for another 10,000 yards of the same new design, booked by letter dated 23rd October, 1971, (Exhibit 4) was not executed. As we had pointed out earlier, Francis Ajibowo & Co. registered the design just over two months later on 30th December, 1971. They transferred the registered design to the defendants after their incorporation on 15th Novermber, 1972.
PAGE| 3 On 23rd August, 1972, that is, about ten months after they had rejected the second order of Francis Ajibowo Company, the plaintiffs applied to the Registrar of Patents and Design for the registration of the same design which had already been registered by Francis Ajibowo & Company. The design was again registered for the plaintiffs, no doubt, in error. Latter, when it was discovered that the design had been registered earlier for another party, the plaintiffs’ registration was cancelled by the Registrar by letter dated 8th September, 1972 (Exhibit 10) which reads:- “The General Manager, Western Textile Mills Ltd., Plot A1, Block IX, Ilupeju Industrial Estate, P.O. Box 2800, Lagos.
Registration of Designs Cancellation of Certificate of Registration Re: Certificate No. 000331 I regret to inform you that Designs Registration Certificate No. 000331 issued to Western Textile Mills Limited in respect of “Textile Piece Goods only (Checks)” with effect from 25th day of August, 1972, and which was delivered to your Manager on Tuesday, 5th September, 1972, is hereby cancelled. 2. The certificate was issued to your company in error, because a certificate has been issued to FRANCIS AJIBOWO & COMPANY OF 143 NNAMDI AZIKIWE STREET, LAGOS in respect of the same identical design with effect from 30th December, 1971: the issue to you of the certificate is therefore contrary to Section 14 of the Patents and Designs Decree No. 60 of 1970. (Sgd.) J.A. Adeosun, Registrar of Patents & Designs.”
PAGE| 4 On 24th March, 1973, the plaintiffs, no doubt annoyed by this decision, instituted proceedings against the defendants in the High Court of Lagos State in which they claimed as follows:- “The plaintiffs’ claim against the defendants is for a declaration that the Design Registration No. 000344 of 30th December, 1971 in the name of Francis Ajibowo & Company, the defendants’ predecessor-in-title, is null and void pursuant to Section 22 of the Patents and Designs Decree, 1970.”
Paragraphs 9 and 10 of their Statement of Claim read- “9. The plaintiff avers that Design Registration No. 000344 (K13/14) is void and of no effect in law because it did not comply with the provisions of the Patents and Designs Decree, 1970. 10. The plaintiff has a material interest in taking this action in that (a) it has to mitigate the financial loss caused by the defendant’s refusal to take delivery of the 2,226 yards referred to in paragraph (8) supra by selling same, and (b) the defendant is threatening litigation against the plaintiff for an alleged infringement of its design. In their Statement of Defence, the defendants after explaining how they came to acquire the registered design from Francis Ajibowo & Co., averred that the plaintiffs have no material interest in the registered design other than that of having the same design registered in their favour.
The defendants thereupon counter-claimed as follows:- “COUNTERCLAIM 1. The defendants counterclaim that they are the validly registered owners of Design No. K/13/14 registered at the Registry of Patents and Designs, Federal Ministry of Trade in Lagos as Certificate No. 000344 of 30th December, 1971. PAGE| 5 2. The defendants will at the trial show that the plaintiffs knowingly and willfully infringed the said Design when they wove several yards of material to the said defendants’ Design Certificate No. 000344 and sold same to several persons.
3. The defendants further claim for: (i) an injunction to restrain the plaintiffs by their directors, officers, employees, servants or agents or otherwise howsoever from infringing the said defendants’ registered Design Certificate No. 000344; (ii) an order for the delivery up or destruction on oath of all articles or chemical components or catalogue of Designs in the plaintiffs’ possession, custody or power which infringe the said registered Design; (iii) an inquiry as to damages or at the defendants’ option an account of the profit and payment of all sums found due upon taking such inquiry or account; or in the alternative, special and general damages of N150,000 (One Hundred and Fifty Thousand Naira); and (iv) such further or other reliefs as this Honourable Court may deem fit.” At the hearing, Ebenezer Festus Olabode, the sales director of the plaintiffs (1st P1/W) testified that Francis Ajibowo & Co., was their customer and that after the defendants were incorporated they also became their customers.
He then continued:- “I know the design which is the cause of the present action. We manufactured the design for Mr. Ajibowo. He first brought the design. The design is a popular design. He first brought it before other customers. He brought a cutting of the design in August, 1970.” He further testified about the order given to them by Francis Ajibowo and about how, after the order had been completed, he failed to clear the outstanding quantity which they had to sell.
He said they did nothing to infringe the defendants’ design. Under cross-examination, the witness testified further as follows:- “Apart from the quantity of the design not cleared by Ajibowo from the first order and which quantity was sold to other customers after due warning to Ajibowo, the plaintiffs, to my knowledge, did not manufacture for nor manufacture on their own and sell to other customers, textile of the design in dispute in this case. We take care in our company not to print one design for two customers. We do not search the register of designs to find out who the registered proprietor is before executing an order to a design.” PAGE| 6 Throughout his testimony, the 1st P1/W did not say whether the remaining textile materials which Ajibowo failed to pay for and collect and which they had to sell to other customers were sold before or after the registration of the new design on 30th December, 1971.
The significance of this omission will emerge later. In support of his contention that the registration of the design is void and of no effect because the design is not new, the plaintiffs called two witnesses, Wusamotu Moranti Dosumu (3rd P1/W) and Muraino Adeyemi Adenusi (4th P1/W). The testimony of Wusamotu Dosunmu, another textile dealer, on this point reads:- “I know the plaintiffs as manufacturers of textiles. I know about four companies manufacturng the design in Exhibit1. These are Nigerian Teijin, Taylor Bard & Co. Ltd., M. Debs & Co. Ltd., and Bhojsons & Sons. Except for Bhojsons & Sons, these firms are manufacturers. They do not market. I also buy this design from any of them for sales. My shop is at 619 LEDB Shop at Fred MacEwen Street, Lagos. I have no stock of this material at the moment. I also buy the design from the plaintiffs. I have sold more than two thousand yards of the material in Exhibit 1. I know Mr. Ajibowo sitting in court. We are both customers of the plaintiffs. I bought some quantity of the design from the plaintiffs towards the end of 1971 and again in 1972.
I do not agree with Mr. Ajibowo that nobody else could sell the design.” When cross-examined about check designs, presumably because the design in dispute is a check design, she replied that the “check designs can be of various types.” The other witness, Muraino Adeyemi Adenusi (4th P1/W) who was once a clerk with P.Z. & Co. Ltd., testified about the disputed design as follows:- “When I was in P.Z. we sold the design in Exhibit 1. The design in Exhibit 1 is known as Kentucky, Check or Prince of Wales material.
The design No. 1 sold by P.Z came from Manchester, England. While in textile business on my own I have sold 1,000 to 2,000 yards of the design in Exhibit1. We have the design in different colours. I obtain my supply of the design from Setty Textiles Limited, London. The design is a common one and in my opinion, nobody can claim the proprietorship of it.” The defendants called no evidence and rested
Other Citation: (1976) LCN/2277(SC)
