INCORPORATED TRUSTEES OF UNITED AFRICAN METHODIST CHURCH (ELEJA) ORGANISATION v. DONALDSON OLADIPO DIYA & ORS
(2019)LCN/12883(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/L/995/2008
RATIO
INTELLECTUAL PROPERTY: THE ACID OR LITMUS TEST
“The acid or litmus test is for an average or reasonable person to look at the first word or the last word of the name to see whether he is deceived, confused, or misled…There is therefore no resemblance between the two names thus removing the tendency to confuse or to mislead/deceive reasonable members of the public both in consonance or sound (ears) and visibility or sight (eyes) vide the case of Ferodo Limited and Another v. Ibeto Industries Ltd. (2004) 5 NWLR (pt. 866) 317, where the Supreme Court held inter alia that the two human senses of ears and eyes have to be used to arrive at a conclusion on the average memory arising from general recollection whether both names are identical or bear close resemblance from the first or last syllable where such word is used; and, whether a reasonable person of average intelligence will be confused, deceived, or misled into taking the 9th respondent’s name for the appellant’s name in the absence of seeing the appellant’s name and relying on his general recollection of the appellant’s name; and/or he would be liable to be deceived or confused to think the 9th respondent’s name he had seen before or heard its sound is the same as the appellant’s name of which he had a general recollection.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
INCORPORATED TRUSTEES OF UNITED AFRICAN METHODIST CHURCH (ELEJA) ORGANISATION Appellant(s)
AND
1. DONALDSON OLADIPO DIYA
2. MABEL KEHINDE KOMOLAFE
3. FOLORUNSO KEHINDE OLADIPO
4. BEATRICE TITILAYO OJERINDE
5. GODWIN TAIWO DIYA
6. ADEBOLA SOBOWALE
7. PATIENCE OLANREWAJU ADELEKE
8. GIDEON OLUJIMI AJAYI-BEMBE
9. THE INCORPORATED TRUSTEES OF UNITED AFRICAN METHODIST (EVANGELICAL CHURCH)
10. CORPORATE AFFAIRS COMMISSION Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the judgment of the Federal High Court sitting in Lagos (the Court below) whereby the Court below found in its judgment that the issue of similarity in the names of the appellant and the 9th respondent was not established, and also that the 9th respondent was the owner of the premises at No. 3 Akinsola Lane, Abule Ijesha, Lagos.
In summary, some members of the appellant’s congregation who formed part of its leadership in one of its several churches made a decision to register the 9th respondent and convert the appellant’s former branch at No. 3 Akinola Lane, Abule Ijesha, Lagos, to its own place of worship under the name and title of the 9th respondent which they incorporated in that name with the 10th respondent and which the Court below held was not similar with the appellant’s name as to cause confusion or deception.
Upon cross-examination on the affidavit evidence for and against the originating summons, the appellant’s witness insisted that the appellant existed before the 9th respondent as an incorporated religious body before 1987 and the 1st & 9th respondents’ witness agreed under cross-examination that the church at No. 3, Akinsola Lane belonged to the appellant prior to June 11, 2006 and had been part of the appellant’s place of worship since 1948 when it was founded; and that the appellant was posting Reverends and Pastors to the said church.
The witness also agreed under cross-examination that the appellant and 1st & 9th respondents accepted and operated the appellant’s Constitution which 9th respondent had adopted; and that before the incorporation of the 9th respondent, remittances from the church were made to the appellant’s headquarters and photographs were tendered by the appellant showing signposts erected by the 1st & 8th respondents in which they wrote the name of the 9th respondent as “United African Methodist Church” without the word “Evangelical’.
Upon conclusion of the evidence and after adoption of final addresses, the Court below found in its judgment that there was no similarity in the name of the appellant with the name of the 9th respondent to cause confusion and that the 9th respondent owns the premises at No. 3, Akinola Lane, Abule Ijesha Lagos.
It was contended by the appellant that just as the names Universal Life Assurance: and ‘Universe Life Assurance’ in Hendricks v. Montagu (1881) 17 Ch. D 638, ‘Niger Chemists’ and ‘Nigeria Chemists’ in Niger Chemists v. Nigeria Chemists (1965) 1 ALL NLR 171 were held to likely mislead or calculated to deceive the general public so would the name of the 9th respondent be to the public who are likely to be misled or deceived that they are dealing with the appellant citing in additional support the case of Ogunlende v. Babayemi (1971) U.I.L.R. 417 at 419 or (1970) NLR 38 at 43 read with Section 675 of Companies and Allied Matters Act (CAMA) to the effect that the name or title of an association shall not conflict with that of a Company, or with a business name or trademark registered in Nigeria so as to prevent confusion or deception.
Consequently, the appellant contended that ‘United African’ and ‘Eleja are thus the three words the appellant had sought to distinguish itself from all other Methodist Churches and are peculiar to the appellant; and that any attempt to use those words or any combination thereof is bound to cause confusion; therefore by adding the words ‘United African’ to the name of the 9th respondent and worshipping in the same venue and placing confusing signposts in front of No. 3, Akinsola Lane, Abule Ijesha where the appellant’s church used to be with some of the sign-posts describing the 9th respondent as ?United African Methodist Church, the 1st & 9th respondents have misled the public who are deceived that they are dealing with the appellant.
The appellant pointed out that by replacing ‘Eleja’ with ‘Evangelical’ when both letters start with the alphabet ‘E’ and both words have the same Biblical meaning of ‘Fishers of Men’ makes the 9th respondent to resemble the appellant to the general public showing the covert and overt efforts of the 1st & 9th respondents to generate confusion and lead to deception of the general public vide Niger Chemists v. Nigeria Chemists (supra).
The appellants concluded by urging that the appeal should be allowed and the decision of the Court below set aside and the 10th respondent be directed to delete, amend or strike out the similar or identical name of the 9th respondent with the appellant’s name for the purpose of avoiding confusion as contained in reliefs (i) to (vii) of the amended originating summons.
The 1st & 9th respondents filed their brief of argument on 23.12.16 in which they contended that before the Court will issue an injunction in respect of similar descriptive names, the appellant must establish that there is a case of fraud; that the business of the 9th respondent is the same and competing with the appellant and that the name of the 9th respondent is not descriptive and consist of special words meant exclusively to the appellant vide the cases ofMotor Manufacturers and Traders Society Ltd. v. Motor Manufacturers and Traders Mutual Insurance Co. Ltd. (1925) ALL E.R. 616, Daily-Need Pharmaceutical Industries Ltd. v. Daily Needs Industries (Nig.) Ltd. (1997) 3 NWLR (pt. 491) 999, Niger Chemist Ltd. v. Nigeria Chemists Ltd. (1965) 1 ALL NLR 171; and that in the present case, the Court below was right in its judgment as the names of the appellant and the 9th respondent are not similar or identical; nor are the names calculated to deceive, confuse or mislead any member of the public; and that the words that form the names of the appellant and the 9th respondent are words in ordinary meaning to describe an organization; therefore the appeal should be dismissed for lacking in merit.
The acid or litmus test is for an average or reasonable person to look at the first word or the last word of the name to see whether he is deceived, confused, or misled by the name of the 9th respondent and would take the 9th respondent’s name for the name of the appellant. The first word of the 9th respondent’s name is ‘The’, while the last word is ‘Methodist’ and then ‘Church’ in bracket. In the case of the appellant, the first word of its name is ‘Incorporated’, while the last word is ‘Organisation’.
There is therefore no resemblance between the two names thus removing the tendency to confuse or to mislead/deceive reasonable members of the public both in consonance or sound (ears) and visibility or sight (eyes) vide the case of Ferodo Limited and Another v. Ibeto Industries Ltd. (2004) 5 NWLR (pt. 866) 317, where the Supreme Court held inter alia that the two human senses of ears and eyes have to be used to arrive at a conclusion on the average memory arising from general recollection whether both names are identical or bear close resemblance from the first or last syllable where such word is used; and, whether a reasonable person of average intelligence will be confused, deceived, or misled into taking the 9th respondent’s name for the appellant’s name in the absence of seeing the appellant’s name and relying on his general recollection of the appellant’s name; and/or he would be liable to be deceived or confused to think the 9th respondent’s name he had seen before or heard its sound is the same as the appellant’s name of which he had a general recollection.
I am, accordingly, of the considered opinion that a person of average intelligence who sees the name of the 9th respondent or hears the sound of it without seeing or hearing the name of the appellant will not, relying on the general recollection, mistake the latter for the former or vice versa when he subsequently sees the latter because both are different.
In the final analysis, I find no merit in the appeal and hereby dismiss it and affirm the decision of the Court below. Parties to bear their costs.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The breviloquent lead judgment of my learned brother, Joseph Shagbaor Ikyegh, JCA, which has just been delivered was made available to me in draft.
I am allegiant to the reasoning and conclusion in the lead judgment that the names of the Appellant and 9th Respondent are sufficiently distinctive such that the names are not likely to mislead, confuse or deceive reasonable members of the public as being the same ecclesia. Accordingly, I join in dismissing the appeal on the same terms as contained n the lead judgment.
TOBI EBIOWEI, J.C.A.: My learned brother. JOSEPH SHAGBAOR IKYEGH, JCA afforded me the privilege of reading in draft the lead judgment just delivered. I agree and have nothing to add.
Appearances:
Mr. W. Adesokan, SAN with him, T. Kutemi, Esqr.For Appellant(s)
Mr. P.O. Jimoh-Lasisi, SAN with him, Mr. A. Adeniji, Mr. E. Obiagase and A. A. Badamosi, Esqr. for the 1st-9th Respondents.
For Respondent(s)
