Nulec Industries Plc V. Dyson Technologies Ltd & Anor (2022)
LAWGLOBAL HUB Lead Judgment Report
AMINA ADAMU AUGIE, J.S.C.
On 11/2/2011, the Appellant made an application to the second Respondent for the registration of Air Amplifier, Air Multiplier and Bladeless Fan, as Trademarks. In the Acceptance Form dated 16/2/2011, the second Respondent specified that the said Trademarks “will in due course be advertised in the Trademark Journal”, and the Trademarks were published in the said Trademark Journal on 15/9/2012.
Meanwhile, on 7/12/2011, the first Respondent filed a Notice of Opposition to the said registration, and in response, the Appellant filed its Counter-Statements. However, while opposition proceedings were still pending, the Appellant, by an Originating Motion dated 14/2/2013, commenced Suit No. FHC/L/187/2013 at the Federal High Court, praying for the determination of the following questions:
- Whether having regard to the provisions of Section 4(1) & (2) and Sections 12(1) & (2) and Part 1, Second Schedule (items 31 & 43) of the Constitution; the provision of Section 44(5) & (6) of the Trademark Act Cap T 13 LFN 2004 is null and void for the reason of its inconsistency with the forgoing Provisions of the 1999 Constitution; and
- If the answer to question 1, is in the affirmative, whether the PARIS Convention and the TRIPS Agreement are applicable in Nigeria by virtue of Section 44 of the Trademarks Act, Cap T 13, Laws of the Federation of Nigeria, 2004 and
- If the answer to question 2, is in the negative, whether the 1st Defendant is entitled to, pursuant to the TRIPS Agreement and the PARIS Convention oppose the Application of the Plaintiff to register Trademarks, which 2nd Defendant has accepted to register.
AND if the answer to questions 2 & 3 above, are in the negative, the Plaintiff seeks: –
- A Declaration that the 1st Defendant is not entitled to oppose the registration of the Trademarks; 1. Air Amplifier; 2. Air Multiplier; and 3. Bladeless Fan; and
- A Declaration that the Plaintiff is entitled to have the Trademarks; Air Amplifier, Air Multiplier, and Bladeless Fan, registered in its favour; and
- An Order compelling the 2nd Defendant to register the Trademarks, Air Amplifier, Air Multiplier, and Bladeless Fan, in favour of the Plaintiff.
- And for such order or orders as this Honourable Court deems fit to make.
The first Respondent, who was duly served by substituted means, did not file any processes, or put in appearance when the Application was heard on 17/10/2013, and the situation remained the same on 20/11/2013, when the learned trial Judge, Kurya, J., delivered his ruling, wherein he granted the Reliefs sought because –
“It is pertinent to point it out clear at this juncture that this judgment is delivered based on the strength of the argument one-sided. I have no argument on the other side I can use to weigh the one-sided argument. And as an Independent and an impartible Judge, I am only to judge and not to argue the case for the other party. From the above facts and circumstances of this case, I have no other option than to answer Question 1 – – in the affirmative. Also, to answer Questions 2 & 3 – – in the negative. Finally, the Plaintiff’s prayer, as listed in the Originating Motion, is hereby granted. Consequently, it is hereby declared:
- That the 1st Defendant is NOT entitled to oppose the registration of the trademarks – (a) Air Multiplier (b) Air Amplifier and (c) Bladeless fan.
- The Plaintiff is entitled to have the trademarks – (a) Air Multiplier, (b) Air Amplifier and (c) Bladeless fan
- An order is hereby made compelling the 2nd Defendant to register the trademarks – (a) Air Multiplier, (b) Air Amplifier and (c) Bladeless fan
The Registrar of this Court is to draft an order to that effect.
Dissatisfied, the first Respondent appealed to the Court of Appeal with a Notice of Appeal, which contained six Grounds of Appeal, and its major complaint was that the learned trial Judge erred when he assumed jurisdiction over the Suit prior to the conclusion of the opposition proceedings before the second Respondent.
The Appellant and the first Respondent filed and adopted their respective Briefs of Arguments. The second Respondent did not file any processes or brief, and in its judgment delivered on 13/6/2017, the Court of Appeal observed that:
“The Trademarks Act is one legislation that made specific provisions on how the jurisdiction of the Federal High Court on Trademarks matters can be exercised. The contention of the 1st Respondent is that the Trademarks Act cannot whittle down the jurisdiction bestowed on the Federal High Court by the Constitution. Furthermore, that judicial powers are strictly given to the Courts by Section 6 of the Constitution. It cannot be contradicted that the Constitution clearly referred to the restriction of jurisdiction to the Federal High Court on the relevant issues in this case, i.e., trademarks, to the exclusion of other Courts. There is therefore no other Court in contemplation here other than the Federal High Court. However, the only body exercising quasi-judicial powers is the Registrar of Trademarks, so when the Respondent calls into play Section 6 of the Constitution, this argument is not just diversionary but untenable. The Section cannot apply to administrative Tribunals or Investigative Boards, which are not Courts. Such bodies usually exercise quasi-judicial duties, and their decisions are subject to appeal. The said Section 251(1) did not use the word exclusive original jurisdiction and when read together with Section 28 of the Federal High Court [FHA] Act, the contention of the Respondent becomes pedestrian. The process of resolving objections cannot begin by instituting a fresh Suit before the Federal High Court. The said Section gives the Federal High Court appellate jurisdiction in certain matters – — It is clear therefore that the 2nd Respondent is covered by Section 28 (1)(d) (FHA Act). The Trademarks Act empowered the Registrar to resolve objections and that such decisions are appealable to the Federal High Court. The Trademarks Act specifically deals with matters concerning the subject matter in this Appeal and it set out a procedure of dealing with different issues relating to Trademarks including registration of Trademarks and the procedure of determining any objection by the Registrar of Trademarks. The relevant sections are Sections 20 and 21 – – – The procedure delicately stipulated in [the] Sections is clear and straight forward. Those are not powers of the Federal High Court and even though the Court has overall jurisdiction on Trademark matters, the Trademarks Act has circumscribed the stage at which the jurisdiction of Federal High Court can be activated. Being a product of law, the procedure must be strictly complied with failing which it will breach the third feature required for the jurisdiction of the Court and consequently erode the Courts of its jurisdiction, the Act provides a pre-condition to the exercise of jurisdiction by the Federal High Court.
After considering the position of the law on jurisdiction, it concluded as follows:
“Any party seeking to invoke the jurisdiction of Federal High Court in Trademark issues pertaining to registration of Trademarks and any objection thereof must first have a decision by the 2nd Respondent before proceeding to the Federal High Court. It means that the Federal High Court has no original jurisdiction in matters pertaining to any objection to the registration of trademarks. It is only an appeal from a decision by the Registrar of Trademarks on the registration of trademarks that the Federal High Court can have jurisdiction. That is not to say that the Federal High Court does not have jurisdiction on other aspects. In fact, there are areas that both Federal High Court and the Registrar of Trademarks share jurisdiction – Section 56 of the Trademarks Act. The area in issue here is opposition to registration of Trademarks in which the law provided for condition precedents to the activation of the jurisdiction of Federal High Court – – – In terms of the Parties, the proceedings before the Registrar of Trademarks cannot be Court proceedings and the parties are not the same between that proceeding and the one before the Federal High Court because the Registrar is a Party in the case leading to the appeal. The Respondent merely jumped the gun by coming to the Federal High Court when it should have waited for a decision by the Registrar on the opposition. I would not, therefore, agree with the Appellant that the action of the 1st Respondent can be classified as abuse of process – – I find that the Federal High Court lacked the jurisdiction to determine the claim of the Respondent as the Court of first instance. The matter can only come to the Federal High Court by way of appeal from a decision of the Registrar of Trademarks. The absence of such a decision, therefore, divested the Federal High Court of jurisdiction.
Put out, the Appellant filed a Notice of Appeal containing two Grounds of Appeal in this Court, and it distilled the following two issues for determination in its brief:
- Whether having regards to the provisions of Sections 6 and 251(1)(f) of the 1999 Constitution and Sections 7, 2, 28 of the Federal High Court Act Cap F12 LFN 2004 exclusive original jurisdiction is granted to the Federal High Court in matters pertaining to civil causes arising from any Federal enactments relating to copyright, patent, designs, trademarks and passing-off, industrial designs, and; if the answer to the above issue in the positive; whether the exclusive original jurisdiction so granted is in any manner impinged or impeded upon or abridged by the provisions of Sections 1, 18, 20 and 22 of the Trademarks Act, Cap T 13, Laws of the Federation 2004.
- Whether having regards to the fact that the decision of the Federal High Court, which was the subject of the Appeal before the Court below, was predicated on the lack of locus standi of the 1st Respondent before the Registrar of Trademarks to challenge and oppose the registration of trademarks, the Appellant was not entitled to raise the issue at the Court below being a jurisdictional one and the Court below ought to fail to consider and decide the issue.
The first Respondent also formulated two Issues for Determination, and that is:
(i) Whether, having regard to the provisions of Section 251(1)(f) of the Constitution (as amended), Sections 7 and 28 of the Federal High Court Act and Sections 20 and 21 of the Trademarks Act, Federal High Court can rightly exercise original jurisdiction in respect of opposition proceedings pending before 2nd Respondent?
(ii) Whether the Court below was mistaken when it held that the Appellant was not entitled to raise or argue in its brief of argument, new issues not supported by the Grounds of Appeal, and whether the said issue of locus standi raised by the Appellant was not considered and pronounced on by the lower Court?
Obviously, this appeal turns on the issue of jurisdiction, which is aptly described, as the live wire of any litigation, and it is recognized that the Court will not readily deny itself jurisdiction unless the jurisdiction is expressly ousted by legislation. See A.G., Lagos State V. A.G., Fed. (2004) 18 NWLR (Pt. 904) 1. It is therefore, my view that the issue for determination is whether in the peculiar circumstances of this case, the Court of Appeal is right to set aside the decision of the trial Court.
In contending that it properly invoked the jurisdiction of Federal High Court, the Appellant relied upon Section 251 (1) of the Constitution, which provides that:
Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil causes and matters –
(f) Any Federal enactment relating to copyright, patent, designs, trademarks and passing off, industrial designs and merchandise marks, business names – –
It cited NDIC V. Okem Ent. Ltd. (2004) 4 SC (Pt. II) 77, Ladoja V. INEC & 30 Ors (2007) 7 SC 99, NNPC & Anor V. Orhiowasele & 2 Ors (2013) 4-5 SC (Pt. II) 1, on the interpretation of the term “notwithstanding”, and argued that no provision in the Trademarks Act will be allowed to prevail over the said Section 251 (1) (f), as regards the exclusive jurisdiction of Federal High Court to hear and determine civil causes arising from any Federal enactment relating to trademarks; and that the words “to the exclusion of any other Court in civil causes and matters” therein has inherent in them the granting of original jurisdiction to the Federal High Court.
Furthermore, that it cannot be the intendment of the Lawmaker not to grant original Jurisdiction in civil causes in matters listed in the said Section 251 of the Constitution, thus, the Court of Appeal’s reasoning on this point is deeply flawed; and that Section 7 of the Federal High Court Act specifically provides as follows:
“The Court shall to the exclusion of any other Court have original jurisdiction to try civil causes and matters (f) – Any Federal enactment relating to copyrights, patent, designs, trademarks and passing off.”
It submitted that the said provision in an Act that the National Assembly is entitled to make pursuant to provisions of Section 251 (1) of the Constitution, affirms the exclusivity of the original jurisdiction of Federal High Court in trademark causes; that the Court of Appeal fell into serious error when it held that the Appellant “did not wait for the decision of the Registrar when it rushed to the Court prematurely”; and that the reasoning of the Court below is erroneous for the following reasons:
– Section 251 (1) (f) of the Constitution did not subordinate the jurisdiction of Federal High Court to that of any other Court or Tribunal or inferior administrative body.
– Section 7 of the Federal High Act clearly grants original jurisdiction to Federal High Court in civil causes arising from any Federal enactment relating to trademarks.
– There is no provision in the Trademarks Act that removes original jurisdiction of Federal High Court (which it cannot being a jurisdiction granted by the Constitution) or in any manner subordinating it to the jurisdiction of any inferior quasi-judicial body i.e., Registrar of Trademarks; or impedes or abridges the activation and invocation of the jurisdiction of the Federal High Court to determine the dispute.
– The Appellant concedes that in addition to the original jurisdiction of the Federal High Court, the Federal High Court also has appellate jurisdiction in regard to matters determined by the Registrar of Trademarks as provided for in Section 28 of the Federal High Court Act and Sections 46 to 59 of the Trademark Act.
It urged this Court to hold that the Federal High Court has original jurisdiction to determine the subject matter of this suit and that it was right in exercising its right to approach the Federal High Court to determine the dispute it has with the first Respondent, as to the right or lack thereof of the first Respondent to oppose the registration by the second Respondent of Trademarks sought to be registered.
The first Respondent argued that the Appellant’s arguments thrive on the faulty assumption that there is a conflict between provisions of the Constitution and the Trademarks Act; one of which is that exclusive jurisdiction vested in the Federal High Court is to the exclusion of both Courts and administrative Tribunal, which is not true; that the express wording of Section 251 (1) makes it clear that the subject matter of jurisdiction of Federal High Court is “to the exclusion of any other Court in civil causes and matters”; that Appellant’s argument “defies logic” and that it amounts to the introduction of extraneous matters into the Constitution.
It submitted that if the Constitution intended to extend the provision to catch administrative Tribunals, it would have stated so expressly but it had not done so; that the word “Courts” as articulated under Section 6 of the Constitution does not include ‘Administrative Tribunal’, which is the role played by second Respondent in exercising jurisdiction over opposition proceedings, citing in Esso Exploration & Prod. Ltd. V. F.I.R.S. – CA/A/402/2012 Shell v. Commissioner of Taxation (1931) AC 275, and NNPC v. Tax Appeal Tribunal & ors (2014) 13 TLRN 1.
Furthermore, that Section 21 of the Trademarks Act and Section 28 of the Federal High Court Act are explicit that jurisdiction of Federal High Court on this is appellate in nature; that the Trademarks Act sets out an elaborate process from filing an Application to registration of the Trademark, and provisions relating to registration of Trademarks has no replica in the Federal High Court Act and that:
“If Appellant’s argument is followed to its logical conclusion, it would mean that there would be no need to lodge Opposition Proceedings before the 2nd Respondent, but Notices of Opposition would be lodged directly at Federal High Court. It would also mean that an arbitral Tribunal would not have jurisdiction to adjudicate on disputes touching on the subject matters of Section 251 of the Constitution. It would mean that Parties could not settle trademark and patent disputes, admiralty disputes, company disputes by arbitration since all these are matters over which the Federal High Court is given exclusive jurisdiction under Section 251 of the Constitution, which cannot be the intendment of the law as Parties have routinely settled disputes by arbitration.”
On Appellant’s argument that the said Section 251 (1) of the Constitution confers ‘original jurisdiction’ on Federal High Court and ousts its ‘appellate jurisdiction over opposition proceedings conferred by the Trademarks Act, it submitted that this assumption is faulty as ‘exclusive jurisdiction’ does not necessarily mean that the Federal High Court would have ‘original jurisdiction’ to hear a case in the first instance over such matters, especially where the Constitution through an act of the National Assembly, recognizes that its jurisdiction in opposition proceedings is ‘appellate’ in nature; that the Trademarks Act, an Act of the National Assembly, expressly confers Federal High Court with appellate jurisdiction over the decision of the second Respondent in relation to opposition proceedings – (Section 21 (1)).
As to the contention that Section 7 of the Federal High Court Act confers ‘original jurisdiction’ on the Federal High Court over opposition proceedings, the first Respondent argued that the Appellant’s submission ought to fail because:
i. As the Appellant rightly argued, provisions of the Constitution take preeminence over statutory provisions and Section 7 of the Federal High Court Act cannot be interpreted to vest original jurisdiction on the said Court where the Constitution itself expressly recognizes its appellate jurisdiction as conferred on it by the Trademarks Act; and
ii. The Trademarks Act, being the specific legislation on opposition proceedings, would have primacy over the Federal High Court Act, which is a general statute.
It further argued that Section 7 of the Federal High Court Act is inconsistent with the Constitution to the extent that it attempts to restrict the exclusive jurisdiction granted to Federal High Court to mean only an exclusive original jurisdiction, excluding an appellate jurisdiction; that any enactment that is inconsistent with the Constitution is null and void to the extent of its inconsistency, citing Adisa V. Oyinwola (2000) 10 NWLR (Pt. 975) 74, Ansa V. R.T.P.C.N (2008) All FWLR (Pt. 405) 1681, Musa V. INEC (2002) 11 NWLR (Pt. 778) 223 and that since the Trademarks Act is the specific legislation regulating trademark matters, it ought to have primacy over the Federal High Court Act in relation to trademark matters.
Evidently, this appeal centers on the interplay between certain provisions of the Constitution, Federal High Court Act, and Trademarks Act. It is not disputed that the Federal High Court is conferred with exclusive jurisdiction over matters relating to trademarks – Section 251 (1) (f) of the 1999 Constitution (as amended).
But, as the Court of Appeal explained in its Judgment, there is a difference between the “original jurisdiction” of the said Court and its “appellate jurisdiction”. The original jurisdiction of any Court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a higher Court has the power to review a lower Court’s decision. In other words, original jurisdiction is a Court’s power to hear and decide a case before any appellate review. It, therefore, follows that the trial Court must have original jurisdiction over the type of cases that it hears.
To this end, Section 7(1) (f) of the Federal High Court Act provides that the Court shall, to the exclusion of any other Court, have “original jurisdiction” to try civil matters on any Federal Enactment relating to “trademarks and passing-off’. Section 28 of the same Act dealing with “appellate jurisdiction”, further provides:
The Court shall have appellate jurisdiction to hear and determine appeals from –
(d) The decision of any other body established by or under any other Federal Enactment of law in respect of matters concerning which jurisdiction is conferred to such Courts pursuant to this Act.
The Trademarks Act is a Federal Enactment, and Section 19 (1) thereof provides:
“Subject to the provisions of this Section, when an application for registration of a trademark has been accepted, whether absolutely or subject to conditions or limitations, the Registrar shall, as soon as may be after acceptance, cause notice of the application as accepted to be published in the Journal; and the notice shall set out all conditions and limitations subject to which the application has been accepted.
Section 20 of the Act dealing with Opposition to Registration, provides as follows:
“(1) Any person may within two months from the date of the publication under Section 19 of this Act of notice of an application give notice to the Registrar of opposition to the registration.
(2) The notice shall be given in writing in the prescribed manner and shall include a statement of the grounds of opposition.
(3) The Registrar shall send a copy of every such notice to the Applicant and within one month after the date on which the copy is received by the Applicant, the Applicant shall send to the Registrar in the prescribed manner a counter-statement of the grounds on which he relies for his application and, if he does not do so, shall be treated as having abandoned his application.
(4) If the Applicant sends such a counter-statement as aforesaid, the Registrar shall furnish a copy thereof to the persons giving notice of opposition, and shall, after hearing the parties, if so required and considering the evidence, decide whether, and subject to what conditions or limitations, if any, registration is to be presumed.
(5) The Registrar may request a person giving notice of opposition or an Applicant sending a counter-statement after receipt of a copy of such notice, to give security for cost of the proceedings before him relating to the opposition, and in default of such security being duly given may treat the opposition or application, as the case may be, as abandoned.
Section 21 of the Trademarks Act that covers “Appeal from Registrar’s decision on opposed Application”, which is at play in this appeal, provides as follows:
(I) A decision of the Registrar under Section 20(4) of this Act shall be subject to appeal to the Court.
(2) An appeal under this Section shall be made in the prescribed manner, and on the appeal the Court shall, if required, hear the parties and the Registrar, and shall make an order determining whether, and subject to what conditions or limitations, if any, registration is to be permitted.
(3) On the hearing of an appeal under this Section, any person may, either in such manner as may be prescribed or by special leave of the Court, bring forward further material for the consideration of the Court,
(4) On an appeal under this Section, no further ground of opposition to the registration of a trademark shall be allowed to be taken by an opponent or the registrar, other than those stated in pursuance of Section 20 of this Act by that or any other opponent, except by leave of the Court, and if any further grounds of opposition are taken, the Applicant shall be entitled, on giving such notice as may be prescribed, to withdraw his application without payment of the costs of the opponent or any of the opponents.
(5) On an appeal under this Section, the Court may, after hearing the Registrar, permit the trademark proposed to be registered to be modified in any manner not substantially affecting its identity but in any such case the trademark as so modified shall be advertised in the journal in the prescribed manner before being registered.
(6) The Court may require an Appellant under this Section to give security for costs of the appeal, and in default of such security being duly given, may direct the appeal to be treated as abandoned.
The Appellant conceded in its brief that in addition to its original jurisdiction, the Federal High Court also has appellate jurisdiction over matters determined by the Registrar of Trademarks, as provided in Section 28 of the Federal High Court Act and Sections 46 to 59 of the Trademark Act, with the following side-headings -Section 46: Duty of Registrar, if required, to hear certain persons
Section 47: Power of Registrar to award costs
Section 48: Annual Reports of Registrar
Section 49: Registration to be prima facie evidence of validity
Section 50: Certificate of Validity
Section 51: Costs of Registrar, etc.
Section 52: Trade usage, etc., to be considered
Section 53: Registrar’s appearance in proceedings involving rectification
Section 54: Court’s power to review Registrar’s decision
Section 55: Powers of Court on appeal
Section 56: Procedure in cases of option to apply to Court or Registrar
Section 57: Method of giving evidence, etc.
Section 58: Evidence of entries in Register
Section 59: Evidence of things done by Registrar
Obviously, Sections 46 to 59 of the Trademarks Act have nothing to do with the issue at stake in this appeal, which revolves around the opposition proceedings, being handled by the second Respondent (Registrar of Trademarks), before the Appellant filed the said Originating Motion at the trial Court that led to this appeal.
The relevant sections, as the Court of Appeal stated in its judgment, are Sections 20 and 21 of the Trademarks Act, which specifically sets out a procedure for dealing with issues relating to the subject matter of this appeal, including the role of the Registrar in the registration of trademarks and the determination of any opposition to the registration. Read together, any person may, within two months from its publication, “give Notice to the Registrar of opposition to the Registration”. The Notice must include “a Statement of the Grounds of Opposition”, and within one month after receiving the Notice, the Applicant must send to the Registrar, “a Counter-Statement of the Grounds on which he relies for his Application”.
Upon receiving the Counter-Statement, Section 20(4) of the Act provides that the Registrar must give a copy to the Person, who filed the Notice of Opposition, and “shall, after hearing the parties, if so required, and considering the evidence, decide whether, and subject to what conditions or limitations, if any, registration is to be presumed”. Section 21 (2) of the Trademarks Act further stipulates that:
“An appeal under this Section shall be made in the prescribed manner, and on the appeal the Court shall, if required, hear the parties and the registrar, and shall make an order determining whether, and subject to what conditions or limitations, if any, registration is to be permitted.”
There it is in black and white; Court of Appeal is right that “the process of resolving objections cannot begin by instituting a fresh suit before the Federal High Court”. It is after the Registrar would have taken a decision in the opposition proceedings that the right of appeal kicks in. In other words, the Federal High Court does not have original jurisdiction over matters pertaining to the acceptance of applications for registration of trademarks and oppositions to the registration of trademarks.
It is the Registrar, who considers the Notice of Opposition, other processes, and the evidence, if any, before he decides what form the registration will take.
It is when the matter goes on appeal that the Federal High Court would determine, after hearing from the parties and the registrar, whether, and subject to what conditions or limitations, if any, the registration of a trademark is to be permitted.
Thus, the decision of the Court of Appeal is correct, and cannot be faulted. By virtue of Section 251 (1) (f) of the Constitution (as amended), Section 28(1)(d) of the Federal High Court Act and Sections 20 and 21 of the Trademarks Act, the Federal High Court has only appellate jurisdiction to hear and determine appeals from a decision of the Registrar of Trademarks as prescribed in Sections 20 & 21 of the Trademarks Act. This issue is, therefore, resolved against the Appellant.
The second issue questions whether the Court of Appeal was right to hold that the Appellant cannot validly raise and argue the fresh issue of whether the first Respondent is entitled to challenge the registration of the trademarks based on the Paris Convention and the TRIPS Agreement. The Appellant is quarreling with the said comment made by the Court of Appeal, but its decision is as follows:
“The 1st Respondent challenged the applicability of some international conventions, my simple answer is that the Application was made before the Registrar of Trademarks, and it is his statutory duty to decide on the applicability of the said conventions to the opposition to registration of the trademarks. Until a decision is taken one way or the other, it would be premature for this Court to resolve such an issue, more so, the Grounds of Appeal do not relate to that question. Besides I agree wholly with the Appellant that the 1st Respondent without a Respondent’s Notice or Cross-Appeal cannot generate new issues not supported by the grounds of appeals, such issues are incompetent and must be struck out. Where a Respondent ignores the Grounds of Appeal filed by the Appellant in formulating Issues for Determination, he is deemed to have conceded to the complaint in the Grounds of Appeal. To raise an issue outside the Grounds of Appeal and those of the Appellant, the Respondent must have filed a Cross-Appeal or Respondent’s Notice.
The Appellant’s contention is that the Court of Appeal failed to advert its mind to ground 3 of the Grounds of Appeal in the first Respondent’s Notice of Appeal, the issues distilled therefrom, and the arguments advanced in support in the Brief; and it had a right to join issues and respond to those arguments on the ground.
Without much ado, I will say this issue is outside the ambit of this appeal. It is settled law that in a judgment of a Court, the binding part of its decision is its ratio decidendi, as against the other remaining parts, which constitute obiter dicta; that is what is not necessary for the decision. See Buhari & Ors V. Obasanjo & Ors (2003) 17 NWLR (Pt. 850) 587, wherein this Court observed as follows:
“Those, who are familiar with the doctrine of obiter dicta will know their limit in jurisprudence. They are not conclusive authority; they are to be regarded as statements by the way. They arise when a Judge thinks it is desirable to express opinion on some points though not in issue or necessary to the case – this makes obiter dicta not to have any binding effect or weight on the case.”
In this case, the Court of Appeal already held that it was the statutory duty of the Registrar of Trademarks to decide on the applicability of the said Conventions and that until a decision is taken one way or the other, “it would be premature for (it) to resolve such an issue”, before it made the comment complained of by the Appellant in this Appeal. Moreover, the use of the word “besides”, which means “in addition to; apart from”- Oxford Languages, before it made the said comment, indicates that it was made by the way. It is an obiter dictum, not a ratio decidendi, and an appeal is usually against a ratio decidendi and not against an obiter dictum. See NDIC V. Okem Enterprises Ltd. (supra), (2004) 10 NWLR (Pt. 880) 107.
What is more, as the first Respondent submitted, Section 20(1) of the said Trademarks Act allows any person to file a Notice of Opposition, thereby making it a right of action independent of the said International Conventions, and having resolved issue 1 against the Appellant, issue 2 is of no moment in this appeal.
Consequently, this appeal lacks merit; it fails, and it is, hereby dismissed. The Appellant shall pay the first Respondent costs assessed at two million naira.
SC.1123/2017
