One Laptop Per Child Association Inc & Ors V. Mr. Ade Oyegbola & Anor (2016)

LawGlobal-Hub Lead Judgment Report

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

The Appellants filed his appeal against the decision of I. N. AUTA J. (now CJ) of the Federal High Court; Lagos Division in FHC/L/CS/1102/2007 dated 8th February, 2008.

The Respondents as Plaintiffs at the lower Court had filed a Writ of summons dated 22nd November, 2007, seeking for the following reliefs:
1. An order of perpetual injunction restraining, the Defendants, their Agents, privies and representatives from doing (or authorizing the manufacturing, selling, distribution or offering for sale in Nigeria any product incorporating a brand of computer keyboard resembling similar to or identical in design to the plaintiff?s Registered Design No: RD8489 applied to their brand of design called ?KONYIN NIGERIA MULTILINGUAL KEYBOARD? (KB-201P-NG and ?KONYIN UNITED STATES MULTILINGUAL KEYBOARD? (KB-201PW-US)?.
2. Destruction or modification upon oath by Defendants, agents, privies and representatives of any products incorporating a brand of computer keyboard resembling, similar or identical in design called

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?KONYIN NIGERIA MULTILINGUAL KEYBOARD? (KB-201P-NG and ?KONYIN UNITED STATES MULTILINGUAL KEYBOARD? (KB-201PW-US)?.
3. An enquiry as to damages or at the Plaintiff?s option, an account of profits and payment to all such sum found upon taking such enquiry or account.
4. In the alternative to (3) above, the sum of US$20,000,000 (Twenty Million Dollars) as damages.
5. Costs.?

Subsequently, upon filing an Ex-parte application, the lower Court granted in favour of the Respondents an order of interim and Anton Pillar injunction on 3rd of December, 2007, after which the order and other Court processes were served on the Appellants. The Appellants entered a conditional appearance and on the 31st day of December, 2007, they filed their joint statement of Defence. Counter-claim and Notice of preliminary Objection challenging the jurisdiction of the lower Court to entertain the suit. In the meantime, the Respondents had also filed a motion for interlocutory injunction pending the determination of the substantive suit. In its Ruling on the Preliminary objection filed by the Appellants, the learned trial judge

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dismissed the objection and also refused to set aside the Ex-parte order granted in favour of the Respondents. The lower Court also ordered accelerated hearing of the substantive matter.

Aggrieved with the Ruling of the lower Court, the Appellants have exercised their right of appeal to this Court vide an amended Notice of Appeal dated and filed on 24th day of October , 2011 and subsequently in compliance with the Rules of Court, parties filed and exchanged briefs of argument.

The brief of the Appellants is dated and filed on 24th October, 2011 but deemed properly filed on 12th April,2016 and a Reply brief filed on 22nd March, 2013; and both settled by Ayo Musibau Kusamotu Esq. of Kusamotu Kusamotu, wherein he submitted two issues for determination thus:
(a) Whether the plaintiff has a cause of action.
(b) Whether the trial Judge acted judiciously when he refused to and discharge the Ex-parte order suo motu ordered accelerated hearing of the suit without giving the Defendants the opportunity to contest the Motion on Notice for interlocutory Injunction.
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The Respondents on the other hand filed a brief filed on 10th day of December, 2012

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and deemed 12th day of April, 2016. Same was settled by A. Adedeji Esq. of Messer’s Adedeji & Owotomo wherein he incorporated a Preliminary Objection challenging the competence of the appeal at pages 2 – 5 of the brief. Counsel however adopted the issues nominated for the determination by the Appellants’ counsel.

The first port of call is the Preliminary objection raised by the Respondents which shall be determined first and if it does not succeed, then the appeal shall be concluded on its merits.

The Respondents contend that this appeal be dismissed for being incompetent on the following grounds:
(a) Grounds 1 and 3 of the Amended Notice of Appeal filed are grounds of mixed law and facts which required leave of the trial Court form Court of Appeal before they can be filed.
(b) The Appellant did not seek leave of either Court before same was filed.
(c) The amended Notice of Appeal is therefore incompetent.