Legalpedia Citation: (2023-04) Legalpedia 83121 (CA)

In the Court of Appeal

LAGOS JUDICIAL DIVISION

Tue Apr 18, 2023

Suit Number: CA/L/1103/2017

CORAM

MOORE ASEIMO ABRAHAM ADUMEIN JCA

JAMES GAMBO ABUNDAGA JCA

MUHAMMAD IBRAHIM SIRAJO JCA

PARTIES

1. EVER RICH INTEGRATED GLOBAL LIMITED
2. SAMTEZ NIGERIA LIMITED
3. HENRY WEST INTERNATIONAL LIMITED
4. MERCHUKS INTERNATIONAL LIMITED
5. MADRIX INTERNATIONAL COMPANY LIMITED

APPELLANTS

SUMEC MACHINERY & ELECTRIC COMPANY LIMITED

RESPONDENTS

AREA(S) OF LAW

APPEAL, COMPANY LAW, CONSTITUTIONAL LAW, EVIDENCE, INTELLECTUAL PROPERTY, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Respondent is the proprietor of the registered trademark “SUMEC”, “SUMEC FIRMAN” and FIRMAN Generators and claims to have exclusive rights in the trademarks. The Respondent is aggrieved that the Appellants decided to engage in products with similarity to its trade marks with likelihood of confusion on the part of the public. In other words, the Respondent alleged an infringement of its registered trademarks by the Appellants. That by reason of the infringement, the Respondent has been greatly injured in its reputation, and has suffered and will continue to suffer loss of goodwill, loss of business reputation, loss of sales and profits as well as irreparable damages. The Respondent further claimed to have incurred huge financial, human and material resources in the course of investigating the infringement. The Respondent decided to seek redress in Court.

​The claims were denied by the defendants (Appellants).

​In his judgment which was delivered on 31st March, 2017, the learned trial Judge found merit in the claimant’s case and entered judgment in its favour. The Appellants were aggrieved by the decision hence the instant appeal.

HELD

Appeal allowed

ISSUES

Ø Whether the Appellants who raised the issue of competence of the Respondent to institute and maintain the action (albeit wrongly) in their statement of defence but failed to give evidence in the case have not abandoned their averment contained in their statement of defence?

Ø Whether the appellants who raised the issue of failure to establish that the Respondent was a juristic person (albeit wrongly) in their statement of defence but failed to give evidence during trial did not abandon the averment contained in their statement of defence?

Ø Whether the Appellants who raised the issue in their defence that the Respondent is not entitled to do business in Nigeria but failed to give evidence at the trial affected (Sic) the proof by the Respondent that this is a proper case for the Court to give judgment in favour of the Respondent that the Appellants infringed on its trade mark?

Ø Notwithstanding the existence of the Appellants’ trademark application before the trademark tribunal which is being opposed, whether the Respondent’s action was premature or inchoate?

Ø Whether the Appellants who did not challenge the relief of general damages of N40,000,000 (Forty Million Naira) at the trial Court are right to argue that same was unreasonable and unjustifiable”?

RATIONES DECIDENDI

GROUND OF APPEAL – FATE OF A GROUND OF APPEAL FROM WHICH NO ISSUE IS FORMULATED

The Appellants distilled 5 issues from grounds 1, 2, 4, 5 and 6 of their grounds of appeal. It is apparent that no issue was formulated from ground three.

​The said ground three is thus abandoned, and is liable to be struck out, the law being long settled that a ground of appeal from which no issue is formulated is deemed abandoned and liable to be struck out. See Akinsuwa V. State (2019) LPELR-47621 (Sc) P.46 Paras D-F, Kente V. Bwacha & Ors (2023) LPELR-59743 (Sc) P. 26 Paras C-E. – Per J. G. Abundaga, JCA

LOCUS STANDI – LOCUS STANDI IS AN ISSUE OF JURISDICTION

It was submitted by Respondent’s counsel that the Appellants raised the issue of the competence of the Respondent’s competence and locus standi to institute and maintain same as one of the ingredients to prove the claimant’s claim but that having called no evidence same was abandoned. This submission does not correctly state the position of the law. This is because jurisdiction is a matter of law. It was raised based on the pleadings exchanged between the parties and submissions proffered on it. On the principle of law that jurisdiction is a question of law, I rely on the case of Attorney General of Kwara State & Anor V. Alh. Saka Adeyemo & Ors (2016) LPELR-41147 (Sc) Pp. 14-15 Paras E-C.

See also Bakari V. Ogundipe & Ors (2020) LPELR-49571 (Sc) Pp. 24-29 Paras A-B.

I have no doubt that the objection to the competence and locus standi of the Respondent was properly raised before the lower Court. The Appellants’ election not to call evidence did not in any way affect the competence of the objection they raised. – Per J. G. Abundaga, JCA

FAIR HEARING – WHAT AMOUNTS TO FAIR HEARING

The objection of the defendants (now appellants) is that the claimant (Respondent) lacked the competence to institute and maintain the action. The portion of the judgment referred to above is short of conveying the trial Court’s decision on the objection. It is settled that an intermediate Court has a duty to consider and determine all issues properly raised before it except where the decision reached is that the lower Court lacked the jurisdiction to entertain the action see APC V. PDP & ORS (2023) LPELR-59254 (CA) P. 78 Paras C-E, NEMCO Ltd V. Onifade & Anor (2022) LPELR-58118 (CA) P. 38 Paras A-C, Balogun & Anor V. Adegbenro & Anor (2018) LPELR-46990 (CA) P. 53 Paras A-B.

Where a Court refuses to consider a germane issue raised by any of the parties in the determination of a case before it, the Court would be said to have denied that party the right to fair hearing though not within the context of not allowing the party to present its case. The inability of the Court to consider the case put forward by the parties in writing the judgment amounts to denial of fair hearing. See the case of Longterm Global Capital Ltd & Anor V. Stanbic IBTC Bank Plc (2022) LPELR-58907 (Sc) Pp. 31-32 Paras E-A, Dokpesi V. Mohammed & Anor (2022) LPELR-58195 (CA) Pp. 39 Paras F-B, A.G Federation V. NSE & Ors (2016) LPELR-40518 (CA) Pp. 9-11 Paras F-C.

However, it’s not in all cases where there is a failure of justice or denial of fair hearing resulting from the failure of the trial Court or intermediate Court to consider all issues before it that will lead to the decision being fatal. The current trend of the law is that such a denial of fair hearing will only be fatal if it resulted in a miscarriage of justice. In appropriate cases when the Court holds that there was a failure to consider all issues put before the Court, the appellate Court will proceed to deal with the issue(s) that were not dealt with. See the case of Mobil producing (Nig.) Unlimited V. FRIS (2017) LPELR-50910 (CA) P. 32, Paras B-F. – Per J. G. Abundaga, JCA

 

CERTIFICATE OF INCORPORATION – BEST EVIDENCE OF INCORPORATION IS CERTIFICATE OF INCORPORATION

What the claimant tendered in evidence amongst others, are:

1. The Respondent’s Trade mark certificate registered in china,

1. The Respondent’s Trade mark certificate registered in Nigeria.

Neither of these in my view satisfies the requirement of Section 54 (1) of the Companies and Allied Matters Act, (CAMA). This is because it is settled law that the best evidence of incorporation of a company is the certificate of incorporation. See the case of Magbagbeola V. Sanni (2005) LPELR-1815 (Sc), Keystone Bank Ltd V. AbdulGafaru Yusuf & Co Ltd (2021) LPELR-55646 (CA) P. 61 Paras A-E, NNPC V. LUTIN INV. LTD & Anor (2006) LPELR-2024 (Sc) P. 9 Paras F-G, Mothercat (Nig.) Ltd V. Regal Trustees of the Full Gospel Assembly (Nig.) (2013) LPELR-22118 (CA) Pp. 24-26 Paras C-A. – Per J. G. Abundaga, JCA

 

COMPANY – WHETHER AN UNINCORPORATED COMPANY’S CLAIMS CAN BE COUNTENANCED

Now, the issue is, whether the Respondent being a company incorporated with the intention of carrying on business in Nigeria, and having not been incorporated as a separate entity in Nigeria, its claims against the Appellants can be countenanced.

The decision of this Court in the case of Emespo J. Continental Ltd & Anor V. Automator France SA (2016) LPELR-42232 (CA) will serve as a useful guide. In that case, it was held:

“The Appellants are not challenging the Constitution of the lower Court nor the subject matter in the claim since the claim is simply a debt recovery claim. The challenge points to the competence of the Respondent to initiate a claim in Nigeria. The Appellants relied heavily on Sections 54, 55, and 56 of the Company and Allied Matters Act to contend that the Respondent cannot initiate any proceedings in Nigeria because it is not registered, as the law requires a foreign company seeking to do business in Nigeria to be registered in Nigeria. I agree that, a foreign company cannot operate in Nigeria without complying with the precondition of registration. The fact of the Respondent being a foreign company is clearly stated in the Statement of Claim. However, the Respondent did not aver that it is a foreign company doing business in Nigeria. The provision of Sections 54, 55, and 56 of the Company and Allied Matters is clear as it concerns any foreign company wanting to do business or be resident in Nigeria. Trite also is the provision of Section 60 of the Company and Allied Matters Act which is relevant here. It says: “(a) save as provided in Section 55, 56, 57 and 58 of this Act, nothing in this Act shall be construed as authorizing the disregard by any exempted foreign company of any enactment or rule of law; and (b) nothing in this Chapter shall be construed as affecting the right or liability of a foreign company to sue or be sued in its name or in the name of its agent.” Conceded that the Appellants did not contend that the Respondent is doing business in Nigeria, therefore, the provisions of Sections 54, 55, and 56 cannot apply to it. It however means that the Respondent being a foreign company not doing business in Nigeria can sue in its name or through its agent. See the case of SAEBY JERNSTOBERI MASKINFABRIC A/S v. OLAOGUN ENTERPRISES LTD (1999) LPELR-2973(SC) which held thus: “The principle of law that a foreign corporation, duly created according to the laws of a foreign State recognized by Nigeria, may sue or be sued in its corporate name in our Courts is part of the common law. The suggestion that a foreign company duly incorporated outside Nigeria should be first registered in Nigeria under the provision of the Companies Act, 1968 (which was then the applicable Statute) dealing with registration of foreign companies, notwithstanding that it does not fall into the category of foreign company as defined by that Act, is too preposterous and patently inimical to international trade to merit any prolonged or serious consideration. It suffices to say the appellant company, which was admitted by the respondent to be limited liability Company with its registered office in Copenhagen properly sued in its corporate name.” See also E.I.L.A. v. C.I.E. LTD (2006) 4 NWLR (Pt. 969) 114. The challenge to jurisdiction which is fundamentally grounded on the non-registration of the Respondent must fail. The Respondent is competent to initiate an action in the High Court of Lagos State even though a foreign company not registered in Nigeria. The Respondent is not in violation of the Company and Allied Matters Act as canvassed by the Appellants.” Per NIMPAR, JCA (Pp. 18-21, paras. C-A). (Underlining mine).

As can be seen, the Court was said to have jurisdiction because there was no averment to the effect that the Respondent was formed for the purpose of doing business in Nigeria.

That in the circumstances the provisions of Sections 54, 55, and 56 of CAMA cannot apply, more so that the claim was that of a simple contract. See also the case of Ali Nayara V. Ningbo Leeho Import & Export Limited (2022) LPELR-56675 (CA) Pp. 39-40 Para A, Hung & Anor V. E.C Investment Co. (Nig.) Ltd & Anor (2016) LPELR-42125 (CA) Pp. 58-69 Paras A-C.

​My understanding of the judicial authorities and the aforestated provisions of the Companies and Allied Matters Act is that the Respondent which was formed with the intention of carrying on business in Nigeria, cannot do so having not been registered. Similarly, it cannot exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes for any purpose other than the receipt of notices and other documents as matters preliminary to incorporation. The corollary of this is that the Respondent lacks the juristic personality and locus standi to maintain the action. – Per J. G. Abundaga, JCA

Now, the issue is, whether the Respondent being a company incorporated with the intention of carrying on business in Nigeria, and having not been incorporated as a separate entity in Nigeria, its claims against the Appellants can be countenanced. The decision of this Court in the case of Emespo J. Continental Ltd & Anor V. Automator France SA (2016) LPELR-42232 (CA) will serve as a useful guide. In that case, it was held: “The Appellants are not challenging the Constitution of the lower Court nor the subject matter in the claim since the claim is simply a debt recovery claim. The challenge points to the competence of the Respondent to initiate a claim in Nigeria. The Appellants relied heavily on Sections 54, 55, and 56 of the Company and Allied Matters Act to contend that the Respondent cannot initiate any proceedings in Nigeria because it is not registered, as the law requires a foreign company seeking to do business in Nigeria to be registered in Nigeria. I agree that, a foreign company cannot operate in Nigeria without complying with the precondition of registration. The fact of the Respondent being a foreign company is clearly stated in the Statement of Claim. However, the Respondent did not aver that it is a foreign company doing business in Nigeria. The provision of Sections 54, 55, and 56 of the Company and Allied Matters is clear as it concerns any foreign company wanting to do business or be resident in Nigeria. Trite also is the provision of Section 60 of the Company and Allied Matters Act which is relevant here. It says: “(a) save as provided in Section 55, 56, 57 and 58 of this Act, nothing in this Act shall be construed as authorizing the disregard by any exempted foreign company of any enactment or rule of law; and (b) nothing in this Chapter shall be construed as affecting the right or liability of a foreign company to sue or be sued in its name or in the name of its agent.” Conceded that the Appellants did not contend that the Respondent is doing business in Nigeria, therefore, the provisions of Sections 54, 55, and 56 cannot apply to it. It however means that the Respondent being a foreign company not doing business in Nigeria can sue in its name or through its agent. See the case of SAEBY JERNSTOBERI MASKINFABRIC A/S v. OLAOGUN ENTERPRISES LTD (1999) LPELR-2973(SC) which held thus: “The principle of law that a foreign corporation, duly created according to the laws of a foreign State recognized by Nigeria, may sue or be sued in its corporate name in our Courts is part of the common law. The suggestion that a foreign company duly incorporated outside Nigeria should be first registered in Nigeria under the provision of the Companies Act, 1968 (which was then the applicable Statute) dealing with registration of foreign companies, notwithstanding that it does not fall into the category of foreign company as defined by that Act, is too preposterous and patently inimical to international trade to merit any prolonged or serious consideration. It suffices to say the appellant company, which was admitted by the respondent to be limited liability Company with its registered office in Copenhagen properly sued in its corporate name.” See also E.I.L.A. v. C.I.E. LTD (2006) 4 NWLR (Pt. 969) 114. The challenge to jurisdiction which is fundamentally grounded on the non-registration of the Respondent must fail. The Respondent is competent to initiate an action in the High Court of Lagos State even though a foreign company not registered in Nigeria. The Respondent is not in violation of the Company and Allied Matters Act as canvassed by the Appellants.” Per NIMPAR, JCA (Pp. 18-21, paras. C-A). (Underlining mine). As can be seen, the Court was said to have jurisdiction because there was no averment to the effect that the Respondent was formed for the purpose of doing business in Nigeria. That in the circumstances the provisions of Sections 54, 55, and 56 of CAMA cannot apply, more so that the claim was that of a simple contract. See also the case of Ali Nayara V. Ningbo Leeho Import & Export Limited (2022) LPELR-56675 (CA) Pp. 39-40 Para A, Hung & Anor V. E.C Investment Co. (Nig.) Ltd & Anor (2016) LPELR-42125 (CA) Pp. 58-69 Paras A-C. My understanding of the judicial authorities and the aforestated provisions of the Companies and Allied Matters Act is that the Respondent which was formed with the intention of carrying on business in Nigeria, cannot do so having not been registered. Similarly, it cannot exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes for any purpose other than the receipt of notices and other documents as matters preliminary to incorporation. The corollary of this is that the Respondent lacks the juristic personality and locus standi to maintain the action. – Per J. G. Abundaga, JCA

It is trite law that in the conduct of proceedings/hearing in a matter, evidence adduced through answers elicited or obtained from a witness while being cross-examined is admissible, potent, and as good as the evidence proffered under examination-in-chief. Indeed, cross-examination forms a crucial and indispensable aspect of the adjudication process. Thus, evidence extracted during cross-examination has similar potency and weight in relation to the facts in contention. Consequently, where answers to questions posed under cross-examination are relevant and linked to the fact in issue, such answers cannot be swept aside with a wave of the hand, glossed over or ignored simply because it was procured through or under the intense heat of cross-examination and not otherwise. Thus, the law is basic on the point that provided it is pleaded by either of the parties, evidence elicited under cross-examination is proper and admissible. Such evidence could be used by the trial Court in the adjudication/determination process. See the case of Maduka & Ors V. Anyadiegwu (2014) LPELR-23751 (CA) Pp. 26-27 Paras E-C. See also Ogungbabi V. Olabode (1993) LPELR-24032 (CA) Pp. 6-7 Paras D-8, Eze V. Okoloagu (Rtd) & Ors (2009) LPELR-3922 (CA) Pp. 36-38 Para E, Akomolafe & Anor V. Guardian Press Ltd & Ors (2010) LPELR-366 (Sc) Pp. 15-16 Paras C-A. – Per J. G. Abundaga, JCA

 

BURDEN OF PROOF – BURDEN OF PROOF IS ON HIM WHO WOULD FAIL IF NO EVIDENCE IS ADDUCED

…the claimant joined issues with the Defendants on the issue of pendency of the application for registration of their trademark, particularly on their contention that the pendency of the application made the institution of this action premature. The onus was therefore on the defendants to prove the interconnectivity between the instant action and the pending application before the trademark tribunal. The only evidence available to the Court was the evidence extracted from the claimant’s sole witness under cross examination that the application was pending based on the claimant’s objection. This is because the defendants rested their case on the claimant’s case having elected not to call any witness. The burden of proof is on him who will fail if no evidence is adduced at all. See Section 132 of the Evidence Act, 2011. The burden would shift to the claimant only after the defendants who introduced the issue of the pendency of the application before the Trademark tribunal had discharged the onus on them to prove that this suit if allowed, and the ruling at the trademark tribunal is decided in their favour would foist upon them a situation of hopelessness, or render their victory at the Trademark tribunal nugatory. The Appellants relied on the case of BAT (Nig) Ltd V. Gallagher Ltd (2016) LPELR-40538 (CA). This case, I am afraid is not applicable in the instant appeal. In BAT (Nig) Ltd V. Gallagher. The applicant filed an application for the removal or revocation of a trademark from the register of trademark on a ground. It was held that such an applicant was estopped from filing another application for the removal of the trademark on another ground before the Court. Such an application was held to constitute an abuse of Court process. The situation here is different, and moreover, the defendants (Appellants herein) did not file an application but raised the issue through pleadings and issues having been joined they were in the circumstances bound to prove the facts they asserted in support of the defence which were controverted, but they chose or elected not to call evidence. They could not therefore place, even the documents they pleaded that they would rely upon before the Court. – Per J. G. Abundaga, JCA

GENERAL DAMAGES – AWARD OF GENERAL DAMAGES IS AT THE COURTS DISCRETION BASED ON EVIDENCE BEFORE THE COURT

In the case of NITEL Trustees Ltd & Anor V. Syndicated Investment Holdings Ltd (2022) LPELR-58842 (SC), the apex Court held:

“The award of general damages lies squarely at the Court’s discretion. The object of an award of general damages is to compensate the plaintiff, as far as money can do so, for the damages, loss or injury he has suffered. The guiding principle is restitutio in integrum. It envisages that a party which has been damnified by the act which is called in question must be put in the position he would have been if he had not suffered the wrong which he is now being compensated for. In other words, the loss inevitably and unavoidably flowing from the breach. In cases of breach of contract, assessment of damages is calculated on the loss sustained by the injured party which loss was either in the contemplation of the contract or is an unavoidable consequence of the breach. It is also trite that an award of damages is within the discretionary powers of the Court. The exercise of such discretion must however be based on the evidence before the Court. See Per KEKERE-EKUN, JSC, in MTN V. CORPORATE COMMUNICATION INVESTMENT LTD (2019) LPELR-47042(SC) (PP. 50-51 PARAS. D).”Per ABBA AJI, JSC (Pp. 36-37, paras. E-D).

See also Akaokisa V. Akaolisa (2021) LPELR-56886 (Sc) Pp. 4-5 Paras D-C, Maidara V. Halilu (2000) LPELR-10695 (CA) Pp. 29-33 Paras F-E. – Per J. G. Abundaga, JCA

DAMAGES – DIFFERENCE BETWEEN GENERAL AND SPECIAL DAMAGES

Learned Appellants’ counsel in his submission referred us to the case of Adekunle V. Rockview Hotel Ltd (2004) 1 NWLR (Pt. 853) 161 wherein the Court differentiated between general and special damages thus:

“General damages” have been defined as damages such as the law will presume to be direct, natural or probable consequences of the act complained of, whereas “special damages” are such damages as the law will not infer from the nature of the act complained of. They are exceptional character-wise and must be specifically pleaded and strictly proved. The difference between the two types of damages is that, whereas, in the former case the Court can make and award when it cannot point out any measure of assessment except where it can hold in the opinion of a reasonable man”. – Per J. G. Abundaga, JCA

 

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Court of Appeal Rules, 2021.
3. Companies and Allied Matters Act (CAMA) Cap C 20 LFN, 2010
4. Trademark Act
5. Companies Act 1968
6. Evidence Act, 2011

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