Nurudeen Omotayo Alowonle v. Haruna Ishola Bello & Anor (1972)
LawGlobal-Hub Lead Judgment Report
G. B. A. COKER, J.S.C.
The present appellant was the defendant in the High Court, Lagos, where he had been sued by the present respondents, as plaintiffs, on a writ of summons endorsed as follows:
“By virtue of and under a partnership agreement dated the 28th May, 1964, the plaintiffs, the defendant and one F. S. Balogun became partners and traded under the name and style of ‘Express Records Dealers Association’ (hereinafter called ‘the firm’) and produced records with the distinguishing label of ‘ Allow on Le Sounds Studio’. The firm was dissolved on the 7th February, 1967.
The defendant, who was the managing director of the firm, has failed and refused and still refuses to render an account of the profit of the firm to the plaintiffs and the other partner and to pay to them their due shares of the profits from the 28th May, 1964, to the 7th February, 1967.
WHEREOF the plaintiffs claim against the defendant as follows:
- An account of all the profits which accrued to the partnership firm of “Express Records Dealers Association” of which the plaintiffs and the defendant were members under and by virtue of a deed of partnership dated 28th May, 1964.
- An order directing the defendant to pay over to the plaintiffs and other partners of the said firm any sum found due as their own share of the profits between May 1964, and February 1967.
- An account of all records orders of and profits thereon placed by the defendant under the name and style of “Express Records Dealers Association” and “Alowonle Sounds Studio” with Messrs. E.M.I. (Nigeria) Limited after February, 1967 up to the date of judgment.
- An order directing payment over to the plaintiffs of any sums due to them as their own share of profits that might have accrued as a result of orders in paragraph 3 above.
- An order for injunction restraining the defendant from trading under the name and style of “Express Records Dealers Association” and producing playing records under the distinguishing label of “Alowonle Sounds Studio” and, in particular, from placing order for records from E.M.I. (Nigeria) Ltd., under those names and styles. ”
The parties duly filed their pleadings and from the plaintiffs’ statement of claim it emerged that the parties had on 28th May, 1964 entered into an agreement to become partners “under the name and style of Express Records Dealers Association” and for the purpose of the partnership “produce records with the distinguishing label mark ‘Alowonle Sounds Studio’.” The statement of claim also states that the agreement was executed and the business of the partnership commenced but that later on and in view of certain happenings the plaintiffs requested the defendant for an account of the recordings of music made by or on behalf of the partnership and that the defendant would not accede to that request until it became necessary to dissolve the partnership on 7th February, 1967. The statement of claim finally avers that the present proceedings were necessitated by the fact that after the dissolution of the partnership the defendant still continued to place orders for recorded music in the name of the firm. The statement of defence denies the principal averments in the statement of claim, alleges that the defendant had indeed rendered an account, that the issue of accounts had been settled in previous litigation between the 1st plaintiff and the defendant and that the defendant would rely on the provisions of the dissolution agreement.
The case was tried by Sowemimo, J. (as he then was). The parties called evidence in support of the averments on their pleadings and in particular the defendant called evidence to show, and indeed establish, that the name Alowonle Sounds Studio was registered by himself as a business name. The evidence of the witness who testified to this fact before the High Court, Lagos, is as follows:
“I represent the Registrar of Business Names. These are the documents relating to the registration of Alowonle Sounds Studio registered on 28th June, 1967 and which ceased to function on 7th November, 1967. (Tendered and marked exhibit P). The name was registered on 22nd November, 1967. These are the papers relating to the registration. (Tendered and marked exhibit Q). In the first registration exhibit P, the party who registered the name is one Nurudeen Alowonle. In the second registration exhibit Q, the parties are Nurudeen Omotayo Alowonle,
(2) Zaid Olatunji Alowonle, (3) Saola Abiodun Yesufu.”
In a reserved judgment, the learned trial judge acceded to the claims of the plaintiffs and entered judgment on their behalf concluding his judgment as follows:
“In the circumstances of this case, I will order that the defendant should file, on or before 12th June, 1968 a full statement of account of all his transactions when he was solely managing the partnership business of Express Records Dealers Association from 28th May, 1964 to 7th February, 1967. The plaintiffs would be granted 14 days from the filing and service of such accounts on them to falsify and surcharge same.
The case will come up for mention on 28th June for consequential orders to be made as regards either the sharing of profits or liabilities as the case may be. I will however, order that the defendant be and is hereby restrained from placing orders as set out in item 5 of the writ of summons. The award of costs will abide the final result of this case on 28th June, 1968.”
The defendant has now appealed to this Court against that judgment and the complaint before us is that the learned trial judge was wrong to restrain the defendant from using the trade name. We observe that there was evidence before the learned trial judge that the trade name which the defendant was using has indeed been registered by him and his associates other than the plaintiffs. It was not, and it is not, sought by the plaintiffs to impugn that registration which still subsists and of course together with all the legal consequences which registration confers. Since the defendant could not have registered the business name of “Alowonle Sounds Studio” whilst it remained registered in favour of the partnership, we enquire whether “Alowonle Sounds Studio” was ever registered by the partnership (including the plaintiffs) either as a trade name or a trademark. We were told that it was not: this was a point canvassed before the learned trial judge and we would have thought that he should have given it all the consideration which it deserves. The plaintiffs had registered no trademark and as such possess no registered trademark, the use of which by other persons they could prevent by an order of injunction. Nor was their trade name, as required by Section 6 of the Registration of Business Names Act [No. 17 of 1961] anywhere registered at any time. It is obvious therefore that the parties, prior to the dissolution of 7th February, 1967, carried on the partnership illegally and could not, as both were in pari delicto, seek the assistance of the court, to enforce claims which had arisen by virtue of illegal exercises, the more so as the remedy sought is to restrain one of their own number from exercising rights which by law and by virtue of his own registration, is entitled to exercise.
We have invited learned counsel for the respondents to address us on the propriety in the circumstances of the orders made by the learned trial judge and he was unable to support those orders though he submitted as the point was taken by this Court, that the plaintiffs should be non-suited rather than have their claim dismissed. We think as we have said, that this was a matter with which the learned trial judge should have dealt on the evidence and the pleadings before him, and we do not see why merely because he failed to do so, we should now non-suit the plaintiffs when clearly their claims were untenable. Neither the name “Express Records Dealers Association” as a trade name nor the label “Alowonle Sounds Studio” as a trademark was registered and for the foregoing reasons we are clearly of the view that the action was incompetent in the way it was presented.
In all the circumstances of the case we conclude that the appeal must succeed and that the judgment of the High Court, Lagos must be set aside. We make the following orders:
(i) The judgment of the High Court, Lagos in Suit No. LD/576/67, including the order for costs, is set aside.
(ii) The plaintiffs’ action is struck out and this shall be the judgment of the Court.
In view of the relationship of the parties and the history of the proceedings, we make no order as to costs.
SC.62/1969
