DISCOVERY (NIG) LTD v. CARDINAL OHAMS LTD & ANOR (2021)

DISCOVERY (NIG) LTD v. CARDINAL OHAMS LTD & ANOR

(2021)LCN/14959(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 08, 2021

CA/L/399M/2010

RATIO

INJUNCTION: STAGES OF INJUNCTION

There are normally three stages of injunction, which are interim, interlocutory and perpetual. The ultimate of them is perpetual while the beginning is interim. Interim, which is granted exparte is granted pending the interlocutory and the interlocutory is granted pending the perpetual. While the principles in granting an injunction at whatever level is the same but depending on the level and type of injunction sought there could be some little variations or additions. For instance, one of the main differences between interim and interlocutory injunction is that for the former which is exparte, it is sought on extreme urgency and argued and granted without the notice to the other party while interlocutory is granted after hearing the other parties.

Interlocutory injunction is usually granted if before the final determination of the rights between the parties, one of the parties is likely to suffer damages which cannot be compensated for by cost. The final is perpetual, which is an injunction for life. This is granted when the rights between the parties has been determined. I am going into this elementary point on injunction to drive home a point which is a trite principle of law that when deciding an interlocutory matter, a Court must restrain itself from pronouncing on matters dealing with the substantive suit. In Agwu & Ors vs. Julius Berger (Nig) Plc (2019) LPER-47625 (SC), the apex Court put it in these words:
“The Law is settled that in dealing with any interlocutory application the Court should not delve into the substantive issues. A Court must avoid the determination of a substantive issue at interlocutory stage. It is never proper for a Court to make pronouncement in the course of interlocutory proceedings on issues capable of prejudging the substantive issues before the Court. See Consortium MC v NEPA (1992) NWLR (Pt.246) 132, Barigha v PDP & 2 Ors (2012) 12 SC (Pt.v) 1, Mortune v Gimba (1983) 4 NCLR 237 at 242. I do agree with the lower Court that the trial Court in deciding the interlocutory application before it went on to comment extensively on the substantive matter that were sought for in the writ of summons. In an interlocutory matter, Courts are enjoined to talk less in the determination of the prayers submitted for resolution. Where the prayers overlap with the substantive claims, it is safer to refuse such application and order for the hearing of the substantive matter. I am of the firm view that the Justices of the lower Court were correct when they set aside the decision of the trial Court and ordered for a trial of the substantive suit before another Judge.”
See also CIL Risk and Asset Management Ltd vs. Ekiti State Govt. & Ors (2020) LPELR-49565 (SC); University Press Ltd vs. I.K Martins (Nig) Ltd (2000) 2 SC 125. PER EBIOWEI TOBI, J.C.A.
FAIR HEARING: IMPORTANCE OF FAIR HEARING

The absence of fair hearing nullifies a proceeding and consequently the judgment. If any of the parties succeeds in challenging fair hearing in the proceeding, the whole proceeding will be declared null and void and so is the judgment no matter how well conducted and brilliant the judgment can be. See Dingyadi & Anor vs. INEC & Ors (2010) LPELR-40142 (SC).
In view of the effect of a successful challenge of lack of fair hearing in a proceeding a Court at whatever level must ensure that the proceedings are conducted in such a way that all the parties are given equal opportunity in presenting their case. This is the original tenet of fair hearing. In Arije vs. Arije & Ors (2018) LPELR-44193 (SC), the apex Court postulating on the doctrine of fair hearing held:
“Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causasua (no one may be a judge in his own cause). See: R Vs. Rand (1866) LR Q.B. 230; Ndukauba Vs Kolomo & Anor. (2005) 4 NWLR (PT.915) 411; Ikomi Vs The State (1986) 5 SC 313; Akpamgbo Okadigbo Vs Chidi (2015) LPELR-24564 (SC) 1 @ 39 E – F. The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See: Unibiz Nig. Ltd. Vs Commercial Bank Credit Lyonnais Ltd. (2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside. See: Ariori Vs Elemo (1983) 1 SC 81; Kotoye Vs C.B.N (1989) 1 NWLR (Pt.98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See: Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23; Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290. PER EBIOWEI TOBI, J.C.A.
JUDGMENT: STYLE OF JUDGMENT WRITING

I must acknowledge the fact that the style of judgment writing is unique to each judge however there are certain characteristics of a good judgment. Every Judge has his style of writing judgment as there is no generally acceptable style. A good judgment must evaluate the evidence before the Judge, make findings based on the evaluation and then apply the law in the circumstance to arrive at a decision. No matter the style adopted by a Judge, the judgment must contain the basic characteristics of a good judgment. The style in writing a judgment is peculiar to a Judge but whichever style is used, a good judgment must have the characteristics of a good judgment stated above. In Omotola & Ors vs. State (2009) 2 FWLR (Pt. 468) 3437, the apex Court stated the characteristics of a good judgment in these words:
“As made clear in the above passage of the judgment of the Court below, the learned Justice of the Court below who wrote the lead only opened its judgment by highlighting or restating the facts which the trial Court had accepted. I do not see how the statement could be considered as injurious to the interest of the appellants as would make it amount to a miscarriage of justice. It seems to me that the manner in which a judgment is to be written cannot be made universal to Judges. Each Judge has his own style and each case often calls for an approach considered most useful to make the particular judgment good enough for the occasion. The important thing is that all the known elements in a good judgment must be incorporated. In this connection, I gratefully adopt the observation of Akintan J.S.C. in Ogba v. Onwuzo (2005) 14 NWLR (Pt. 945) 331 at 334-335 where he said:
“Judgment writing is an art by itself in which every individual has his own peculiar style and method. All that a good judgment requires is that it must contain some we-known constituent parts. Thus, some of the constituent part which a good judgment must contain in case of a trial Court include: (1) the issues or questions to be decided in the case; (2) the essential facts of the case of each party and the evidence led in support; (3) the resolution of the issues of fact and law raised in the case; (4) the conclusion or general inference drawn from the facts and the law as resolved; and (5) the verdict and orders made by the Court. See Oro v. Falade (1995) 5 NWLR (Pt. 396) at 407-408; Mogaji v. Odofin (1978) 4 SC 9; Ojogbue v. Nnubia (1972) 1 ANLR (Pt. 2) 226; and Olomosola v. Oloriawo (2002) 2 NWLR (Pt. 750) 113 at 125.”
See also A.G. Federation & Ors vs. Abubakar & Ors (2007) 10 NWLR (Pt. 1041) 1. PER EBIOWEI TOBI, J.C.A.
INJUNCTION: CONDITIONS TO BE MET BY AN APPLICANT FOR AN INJUNCTION

There are certain conditions that the Applicant for an injunction should meet before a Court grant same. These conditions are stated in a cloud of cases. I will make mention of Adeleke & Ors vs. Lawal & Ors (2013) 2 S.C. (Pt. 11) 38. The apex Court held thus:
“Since injunction is an equitable remedy, it is usually granted at the discretion of the Court which must be exercised judicially and judiciously. For the Court to exercise its discretion in favour of an applicant certain conditions must exist and this must be evidenced in the affidavit accompanying the motion on notice. The conditions for grant of interim and interlocutory injunctions are basically the same except for the element of urgency in interim injunction which is not pronounced in interlocutory injunctions. See: Modern Civil Procedure Law by A.F Afolayan and P.C Okorie published by Dee Sage Nigeria Limited 2007 at page 198. The conditions include:
(a) Existence of a legal right
(b) Substantial issue to be tried
(c) Balance of convenience
(d) Irreparable damage or injury
(e) Conduct of the parties
(f) Undertaking as to damages.
In Buhari vs Obasanjo (2003) 17 NWLR (Pt 850) 587, this Court, per Tobi JSC, spelt out the principles guiding the application of interlocutory injunction at page 648 – 649 as follows:
“Some of the principles or factors to be considered in an application for interlocutory injunctions are:
1. There must be a subsisting action. See: The Praying Band of C and S vs. Udokwu (1991) 3 NWLR (part 182) 716
2. The subsisting action must clearly donate a legal right which the applicant must protect See: Kotoye vs CBN (1989) 1 NWLR (Part 98) 419; Woluchem v. Wokoma (1974) 3 SC 153; Obeya Memorial Hospital vs Attorney – General of the Federation (1987) 3 NWLR (part 60) 325
3. The applicant must show that there is a serious question or substantial issue to be tried. See: Kotoye vs CBN (supra); Nigerian Civil Service Union vs Essien (1985) 3 NWLR (Part 12) 306; Nwose v. Mbaekwe (1973) 3 ECSLR 136
4. And because of 3 above, the ‘status quo’ should be maintained pending the determination of the substantive action. See: Kotoye v CBN (supra); Fellowes v. Fisher (1975) 2 ALL ER 829; American Cyanamid Co. v. Ethicon Ltd (1975) AC 396.
5. The applicant must show that the balance of convenience is favour of granting the application. See: Kotoye v. CBN (supra); Obeya Memorial Hospital v. Attorney-General of the Federation (supra); Akinlose v. A.I.T. Ltd (1961) WNLR 116.
6. The applicant must show there was no delay on his part in bringing the application. See Kotoye vs CBN supra.
7. The applicant must show that damages cannot be adequate compensation for the injury he wants the Court to protect. See: Kotoye vs CBN (supra); Obeya Memorial Hospital v. Attorney-General of the Federation (supra)
8. The applicant must make an undertaking to pay damages in the event of any wrongful exercise of the Court’s discretion in granting the injunction. See Kotoye vs CBN (supra); Itama vs Osaro – Lai (2000) 6 NWLR (Part 661) 515.”
See Aboseldehyde Laboratories Plc vs. Union Merchant Bank Ltd & Anor (2013) 2-3 S.C. (Pt. V) 155. PER EBIOWEI TOBI, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

DISCOVERY NIGERIA LIMITED APPELANT(S)

And

CARDINAL OHAMS LIMITED (Owners Of The Registered Trademark And Design POLICE BODY SIZE AND UNDERWEAR) And Device 2. E. MICHAEL INTERNATIONAL LIMITED (Sued On Its Own Behalf And On Behalf Of And As Representing All Other Person (S) Engaged In The Trade Or Business Of Manufacture, Importation, Stocking, Distribution, Supply, Sale And Use Of The Infringing Product Known As POLICE BODYSIZE AND UNDERWEAR To Which The Plaintiff’s Registered Trade Mark And Design Has Been Applied. RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of Honourable Justice A.M. Liman of the Federal High Court sitting in the Lagos Division delivered in Suit No. FHC/L/CS/939/2009 – Cardinal Ohams Limited vs. Discovery Nigeria Limited & Anor on 21/1/2010. The ruling which is contained on pages 166 – 167 of the record of appeal is in respect of the interlocutory application filed by the 1st Respondent (then Plaintiff) seeking for an injunction restraining the Appellant and 2nd Respondents (then Defendants) and their privies from dealing or otherwise in the product known as Police body size and underwear and an order advertising the said order of Court. The 1st Respondent in the lower Court argued that it is the proprietor of the registered trademark of the product while the Appellant on the other hand argued that they are the developer and corporate body that introduced the product to the market. After hearing the application and taking argument and counter argument from the respective counsel, the learned trial Judge held on page 167 of the record of appeal in this wise:

“I have examined the facts of this case, and the applicable law, especially the case of AMERICAN CYANAMID VS. ETHICON LTD and I find it as a dis-positive conclusion that the need to protect the legal right of the Plaintiff which is not disputed should be affirmed for it stands to suffer a more damaging injury should the application be refused than the 1st Defendant whose right at this stage is inchoate. In the circumstances, the application for the Interlocutory Injunction is hereby granted as prayed.
Having made the Order of Injunction, it is only fair and just that an Order of accelerated hearing of the matter is made and accordingly I fix the trial of the case to 24/2/2010.”

This is the ruling of the lower Court that triggered this appeal. The Appellant dissatisfied with the ruling initiated this appeal vide a notice of appeal. The extant notice of appeal is the one dated and filed 28/11/2011 which is the amended notice of appeal containing five grounds of appeal. The grounds of appeal are hereunder reproduced:
GROUND ONE
The learned trial Judge erred in law when without considering properly or at all the Appellant’s

Counter-Affidavit, Further and Better Counter-Affidavit, Exhibits and written address in opposition to the 1st Respondent’s Motion on Notice for interlocutory injunction before his Lordship granted the 1st Respondent Motion on Notice for interlocutory injunction contrary to the Appellant’s constitutional right to fair hearing as provided under the Constitution of the Federal Republic of Nigeria, 1999.
GROUND TWO
The learned trial Judge was wrong in granting the order of interlocutory injunction in favour of the 1st Respondent when the underpinning principles for granting such application were not satisfied by the 1st Respondent.
GROUND THREE
The learned trial Judge erred in law when His Lordship granted the 1st Respondent’s Motion on Notice dated 24th day of August, 2009 for interlocutory injunction against the Appellant when there was no undertaking as to damages extracted from or given by the 1st Respondent before or after the interlocutory orders were made.
GROUND FOUR
The learned trial Judge erred in law in granting the 1st Respondent’s application for interlocutory orders of injunction when His Lordship

did not consider the well-known principles for granting an order of Interlocutory Injunction.
GROUND FIVE
The learned trial Judge erred in law when His Lordship in granting the 1st Respondent’s Motion on Notice for Interlocutory Injunction dated 24th day of August, 2009 held as follows:
“I have examined the facts of this case, and the applicable law, especially the case of AMERICAN CYANAMID VS. ETHICON LTD. and I find it as a dis-positive conclusion that the need to protect the legal right of the Plaintiff which is not disputed should be affirmed for it stands to suffer a more damaging injury should the application be refused than the 1st Defendant whose right at this stage is inchoate. In the circumstances, the application for the Interlocutory Injunction is hereby granted as prayed….”

The Appellant’s brief dated and filed 4/7/2011 but deemed as properly filed and served on 19/11/2020 was settled by Mr. Adolphus Nwachukwu, Esq. In the brief, learned counsel for the Appellant raised the following issues for determination.
1. Whether the lower Court denied the Appellant fair hearing when it failed to properly or

at all consider the Appellant’s Court processes in opposition to the 1st Respondent’s application for interlocutory injunction before granting same in favour of the 1st Respondent?
2. Whether the lower Court exercised its discretion judiciously and judicially when it granted the interlocutory order of injunction in favour of the 1st Respondent?
3. Whether the Lower Court properly interpreted and applied the principles established in American Cyanamid V. Ethicon Ltd. (1975) 1 ALL ER 504 as it relates to the 1st Respondent’s application for interlocutory injunction before granting same in favour of the 1st Respondent?

Before I go into the arguments of learned counsel for the Appellant on the various issues for determination suffice to state at this junction that the Appellant on 19/11/2020; which was the day for adoption of the briefs, withdrew its argument against the 2nd Respondent. The implication therefore is that the 2nd Respondent is therefore struck off this appeal leaving the 1st Respondent as the only Respondent in this appeal.

On issue one, counsel relying on

Section 36 of the Constitution of the Federal Republic of Nigeria 1999 submitted that the lower Court denied the Appellant fair hearing when it failed to properly consider the Appellant’s counter affidavit, exhibits attached and written address before granting the order of injunction in favour of the 1st Respondent. Counsel relied on ES & CS Ltd vs. N.M.B. (2005) 7 NWLR (Pt. 924) 215 @ 271 in stating that the failure of the lower Court in properly considering the Appellant’s case will amount to the proceedings becoming a nullity. Counsel therefore urged this Court to resolve this issue in favour of the Appellant as the conduct of the learned trial Judge led to a miscarriage of justice as the granting of the Interlocutory Injunction was detrimental to the Appellant.

On issue two, learned counsel cited Governor of Lagos State vs. Ojukwu (1986) 1 NWLR (Pt. 18) 621 @ 623 SC; Imani & Sons Ltd. vs. Bil Construction Co. Ltd. (1999) 7 NWLR (Pt. 609) 135; Long John vs. Blakk (1998) 6 NWLR (Pt. 555) 524 @ 542 which are to the effect that a grant of an application for Interlocutory Injunction is predicated on the discretion of the Court which must be exercised judicially and judiciously. Counsel on the

strength of Kotoye vs. CBN (1989) 1 NWLR (Pt. 98) 441-442 listed out the factors to be considered in granting an interlocutory injunction and went further in submitting that the 1st Respondent had no legal or serious issue to be tried when he brought the application for interlocutory injunction. He relied on UTB & 2 Ors. vs. Dolmetsch Pharmacy (2007) 6 SC (Pt. 1) @ 23. Counsel contended that the lower Court failed to consider facts which are contained in the counter affidavit and which would have persuaded the lower Court to refuse the application for interlocutory injunction. He made reference to Section 7 of the Trade Marks Act Cap T13 Laws of the Federation of Nigeria, 2004.

On the issue of real urgency and lack of delay, it is the contention of Appellant’s counsel that there was no real urgency to require the lower Court to grant the interlocutory injunction sought by the 1st Respondent as the product which the 1st Respondent claimed was infringed by the Appellant had been dealt with by the Appellant and had been in circulation since 2000 whereas the 1st Respondent only brought the action in 2009. Counsel also contended that the lower

Court was wrong in granting the interlocutory injunction in favour of the 1st Respondent when it could be adequately compensated with cost at the end of the trial more so when the 1st Respondent asked in its statement of claim for an order for the Appellant to render account of all monies had and/or received by them from the proceeds of or connected with the sale and/or use of the Appellant’s infringing product. He relied on Kotoye vs. CBN (supra); Obeya Memorial Hospital vs. A.G. Federation (1987) 3 NWLR (Pt. 60) 325; Kotoye vs. Saraki (1989) (supra) @ 187; Halsbury’s Law of England 3rd Edition page 366, para. 765. Counsel cited Kotoye vs. Saraki (1990) 4 NWLR (supra) @ 187, Halsbury’s Law of England 3rd Edition, page 352 para. 739, on the interpretation of irreparable damage. On the issue of undertaking as to damages, counsel relied on American Cyanamid Co. vs. Ethicon Ltd. (1975) All ER 510; Union Beverages Ltd. vs. Pepsicola Int. Ltd. (1994) 3 NWLR (Pt. 30) 1 @ 12, 17 in positing that no order of interlocutory injunction ought to be made unless the Applicant gives a satisfactory undertaking as to damages which the lower Court failed to

extract and as such the appellate Court will discharge the order of interlocutory injunction. He called in aid the cases of Graham vs. Campbell (1877 – 1878) 7 Ch. D 490 @ 494; Inakoju & 17 Ors. vs. Adeleke & 3 Ors. (supra) 236 – 237; A.G. of Anambra State & Ors. vs. Okeke & Ors. (2002) 5 SC (Pt. 11) 58; (2002) 12 NWLR (Pt. 782) 575 @ 606 – 607, (2002) 5 SCNJ 318.

It is the contention of learned counsel that based on the Appellant’s counter affidavit which clearly reveals that the Appellant had been dealing in the product since 2000 to the knowledge of the 1st Respondent, that the 1st Respondent is not the owner of the trade mark but PBS Fashion Company Limited of Thailand that owns it and had registered same in Thailand and are the owners of the product but only appointed the Appellant and the 1st Respondents as its agents/distributors in Nigeria, the lower Court should have dismissed the application for interlocutory injunction. Counsel also contended that assuming the 1st Respondent had the trade marks for the product, it is obvious from the law that the Appellants had the right to use the product by virtue of

Section 7 of the Trade Marks Act. He therefore on the strength of his argument, urged this Court to set aside the interlocutory orders and allow the appeal, as the lower Court granted the interlocutory order without an undertaking as to damages.

On issue three, it is the submission of counsel that though the lower Court relied on American Cyanamid vs. Ethicon Ltd. (1975) 1 All ER 504 in arriving at its decision, it did not properly interpret and apply the principles established in the case to the present case. Counsel further submitted that the facts and the law which the lower Court claimed it had examined as regard the legal rights of the parties before arriving at its conclusion are facts based on affidavit evidence which are still in dispute between the parties and have not been tested by oral cross-examination. Counsel posited that by reaching this conclusion the lower Court was delving into the substantive matter at the interlocutory stage especially where it had not heard the parties at trial and oral or written address. He called in aid the cases of Duwin Pharmaceutical and Chemical Ltd. vs. Beneks Pharmaceutical and Cosmetics Ltd. (2008) 1 – 2

SC 68 @ 89 – 90; Ojukwu vs. Government of Lagos State (1986) 3 NWLR (Pt. 26) @ 39. On a whole, he urged this Court to allow the appeal and set aside the ruling of the lower Court.

The 1st Respondent’s brief dated and filed 26/10/11 but deemed as properly filed and served on 19/11/2020 was settled by Maduka Ken Nwanna Esq. Counsel raised the following three issues for determination viz:
1. Whether a party who filed Court processes in opposition to an interlocutory application which processes were considered by the lower Court can contend that it was not given fair hearing.
2. Whether the Court of Appeal can interfere with the discretion of the lower Court where such discretion was exercised judicially and judiciously.
3. Whether from the facts placed before the lower Court the applicable law and principles and the case law, the lower Court was right to have granted the application for interlocutory injunction.

On issue one, it is the contention of learned counsel that the Appellant had as much opportunity as the 1st Respondent to show why the order of interlocutory injunction should not be made by the lower Court. He cited

Kotoye vs. CBN (1989) 1 NWLR (Part omitted) @ 426; 7up Bottling Co. Ltd. vs. Abiola & Sons Ltd. (1995) 3 NWLR (Part omitted) 285. Counsel also cited Otu vs. ACB (2008) 3 MJSC 207 which is to the effect that a party who opposed an application by filing counter affidavit and argued the same application cannot complain of fair hearing because by opposition he has obtained a hearing. Counsel posited that a careful perusal of the grouse of the Appellant as expressed on this issue borders on the alleged failure of the lower Court to properly consider the evidence it presented to it and not the denial of fair hearing. Counsel therefore relied on Sosanya vs. Onadeko (2005) 6 MJSC 103; Uka vs. Irolo (2002) 35 WRN 3; Magit vs. University of Agriculture (2005) 12 SC (Pt. 1) 135 on the distinction between the effect of breach of the rule of fair hearing and failure of a Court to consider all issues raised before it.

On the issue two, counsel relied on A.G. Lagos State vs. Attorney General of the Federation (2005) 1 MJSC 15 for the definition of legal right and Section 5(1) of the Trademark Act in stating that the legal right conferred on the registered owner of the

trademark and design is statutory. On the issue of real urgency, counsel stated that real urgency is a requirement for the grant of exparte injunctions and not interlocutory injunctions. He relied on Kotoye vs. CBN (supra) for this position. Counsel also contended that the case of the Appellant at the lower Court was that the balance of convenience has never been and would not be in favour of the 1st Respondent as the Appellant is the original proprietor of the trademarked product and that the 1st Respondent suffered no damages and canvassed that monetary damages will not be enough compensation to the Appellant instead the implication of which is that the Appellant failed to join issues with the 1st Respondent at the lower Court that monetary damages cannot compensate the 1st Respondent and as such the respective paragraphs are deemed admitted. Counsel posited that the contention of the Appellant that because one of the reliefs before the lower Court is for account of all monies had and/or received from the proceeds of or connected with the sale and/or of the infringing product, the Court should have not granted the injunction since damage if any could have

been appropriate compensation for the 1st Respondent is totally misconceived. Counsel also posited that the submission of the Appellant that it is where the lower Court has doubt as to the adequacy of the respective damages that the question of convenience arises is misconceived as what is meant by balance of convenience is the disadvantage to one or other side which damages cannot compensate for if it is successful at the end of the day. For this position, he relied on ACB vs. Awogboro (1991) NWLR (Pt. 176) 719.

Counsel for the 1st Respondent argued that the Appellant was misconceived when it contended that the 1st Respondent did not give undertaking as to damages as the 1st Respondent deposed in paragraph 16 of the affidavit in support of its application undertaking to pay damages to the Appellant such amount of damages as the lower Court may determine if it is later adjudged that the order sought ought not to be granted and as such there is no necessity for this Court to extract an undertaking in damages. He placed reliance on Onyesoh vs. Nnebedun (1992) 3 NWLR (Pt. 229) 346. Counsel went further to state that even where the lower Court failed to

extract an undertaking, this Court vide Section 17 (sic) of the Court of Appeal Act and Section 6 (6) of the Constitution of the Federal Republic of Nigeria 1999 has the power to order an undertaking as to damages. He cited Ayantuyi vs. Afrocontinental Nig. Ltd. Reported at page 354 of Injunctions and Enforcement of Orders by AFE BABALOLA SAN. It was the position of learned counsel that the claim of the Appellant that it is the one that introduced the product into the Nigerian market before any corporate body in Nigeria, individual and even the 1st Respondent came in contact with the product is equally a substantive matter which the Court should avoid dealing with at interlocutory stage. He relied on Ideh vs. God Bless Motors Ltd. (1991) 4 NWLR (Pt. 188) 699; Akapo vs. Habeeb (1992) 4 NWLR (Pt. 297) 266.

Counsel referred to Section 13(2) of the Patent and Design Act which is to the effect that where an application is made for the registration of an industrial design, the design will be presumed to be new at the time of the application. He cited Dyktrade vs. Omnia (Nig) Ltd. (2000) 7 SC (Pt. 1) 566; Ilechukwu vs. Iwugo (1989) 2 NWLR (Pt. 101) 99 in asserting that

the 1st Respondent having a legal right in the circumstance can call the jurisdiction of the Court for its indulgence and exercise of jurisdiction, having registered the product trademark and designs and certificate issued to it under the hand and seal of the Registrar of Trade Mark and Patent Design.

Going forward, counsel argued that the Appellant’s assertion that PBS Fashions Co. Ltd registered the product in Thailand as far back as 1984 is not helpful to the Appellant because Trade Marks registered in Thailand is not operative in Nigeria as Thailand is not a convention country with Nigeria as to be entitled to priority as provided for in Section 44 of the Trade Mark Act. It is the final contention of counsel relying on Ayman Ent. Ltd. vs. Akuma Ind. Ltd. & Ors. (2003) NWLR (Part omitted) 22; Dyktrade Limited vs. Omnia (Nig.) Ltd. (supra) that pending applications and the documents exhibited at the lower Court by the Appellant relate to unregistered Trade Mark to which the lower Court does not have jurisdiction to adjudicate on.

On issue three, it is the contention of counsel that registration entitles a proprietor the exclusive use

of the Trade Mark and the Right to sue for passing off the goods of the proprietor. He relied on Section 22 (2) of the Trade Mark Act Cap 436 Laws of the Federation of Nigeria, 2004; Patkun Industries Ltd. vs. Niger Shoes Manufacturing Ltd. (1988) 5 NWLR (Pt. 93) 139 @ 141; Dyktrade vs. Omnia Nig. Ltd (supra). Counsel argued that acceptance form, receipts and pending application for the registration of Trade Mark do not constitute registration of Trade Marks and the right conferred by registration under Sections 3 and 22 of the Trade Mark Act is not available to them. He placed reliance on Goodlife Electronics vs. Austec Obison Ltd. (1997) – 2003) 4 IPLRP 484; Ayman Industries Ltd. vs. Akuma Ind. (supra). It is the final submission of counsel that the lower Court properly applied the case of American Cyanamid vs. Ethicon Ltd. (supra) especially when there is prima facie evidence of registration of Trade Mark and Design by the 1st Respondent while the Appellant has unregistered Trade Mark. He therefore urged this Court to dismiss the appeal as it lacks merit.

The Appellant exercising its constitutional right of a reply filed a reply brief on

9/7/2020 which was deemed as properly filed and served on 19/11/2020. It is the submission of the Appellant that the right under Section 5(1) of the Trade Mark Act was made subject to Section 7 and 8 of the Trade Mark Act. On the interpretation of the expression ‘subject to’, he referred to LSDPC vs. Foreign Finance Corporation (1987) 1 NWLR (Pt. 50) 413 @ 461 (SC); Aqua Ltd. vs. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 @ 655 SC and also Oke vs. Oke (1974) 1 All NLR (Pt. 1) 443 @ 450 (SC); Idehen vs. Idehen (1991) 6 NWLR (Pt. 198) 382 @ 384 in stating that the legal right of the 1st Respondent is subject to the Appellant’s right under Section 7 and 8 of the Trade Mark Act.

With respect to the 1st Respondent’s contention that there were conflicts in the affidavit evidence of the Appellant and the 1st Respondent, counsel stated that the trial Court ought to have ordered oral evidence to reconcile the conflicts in the affidavit of the parties before delivering its ruling. He relied on Falobi vs. Falobi (1976) 9 – 10 SC 1 @ 13; (1976) 10 NSCC 576 @ 581, 582; Yakubu vs. Nigerian Telecommunication Ltd. (2006) 9 NWLR

(Pt. 985) 367 @ 389 – 390; University Press Ltd. vs. Ik Martins Nig. Ltd. (2000) 4 NWLR (Pt. 654) 584 @ 591; Uku & Ors. vs. Okumagba & Ors. (1974) 3 SC 35 @ 56, 64 – 65. Counsel went further in stating that if the conflicts were to be resolved during plenary trial that should have been the more reason why the lower Court should have ordered accelerated hearing of the substantive suit rather than granting an order of interlocutory injunction. He cited Akinsete vs. Akindutire (1966) 1 All NLR 147 @ 148; Eboh & Ors. vs. Oki & Ors. (1974) 1 SC 179 @ 189 – 190.

On whether or not the Appellant admitted or did not controvert the 1st Respondent’s deposition that damages would not be adequate compensation to the 1st Respondent, learned counsel reiterated the argument already contained in its brief of arguments. On whether this Court can extract an undertaking as to damages by invoking its powers under Section 15 (wrongly cited as Section 17 by the 1st Respondent) of the Court of Appeal Act, counsel posited that the 1st Respondent cannot move this Court to activate Section 15 of the Court of Appeal Act without a competent

appeal or cross appeal. He relied on Adekeye & Ors. vs. Akin-Olugbade (1987) 2 NSCC 865 @ 873; Ogunma Associated Companies (Nig.) Ltd. vs. International Bank of Africa Ltd. (I.B.W.A.) (1998) NSCC 1 @ 396 – 398 (SC). On the argument of the 1st Respondent which is to the effect that Thailand is not a party to the Paris Convention for the Protection of Industrial Property of 1883, it is the assertion of Appellant counsel that the 1st Respondent is misconceived as Thailand is a party to the Paris convention and as such by Article 4 of the Convention, trademarks registered in Thailand have a priority of registration in Nigeria. It is the contention of counsel that assuming Thailand is not a party to the Convention, the Appellant by its continuous use of the product since the year 2000 before the 1st Respondent purportedly registered its trademark in 2018, is entitled to protection under the principle of continuous use pursuant to Section 7 of the Trade Mark Act. He relied on American Cyanamid Company vs. Vitality Pharmaceuticals Ltd. (1991) LPELR-461 (SC).
On the whole, the Appellant urged this Court to allow the appeal.

In deciding this appeal, I have to warn myself and indeed ensure that I limit myself to the issues put on the front burner in this appeal. I should not go outside on a voyage of discovery which will not do this Court or any of the parties any good. The appeal before this Court is basically on the premise whether the lower Court was right in granting the interlocutory injunction against the Appellant in favour of the 1st Respondent. There are normally three stages of injunction, which are interim, interlocutory and perpetual. The ultimate of them is perpetual while the beginning is interim. Interim, which is granted exparte is granted pending the interlocutory and the interlocutory is granted pending the perpetual. While the principles in granting an injunction at whatever level is the same but depending on the level and type of injunction sought there could be some little variations or additions. For instance, one of the main differences between interim and interlocutory injunction is that for the former which is exparte, it is sought on extreme urgency and argued and granted without the notice to the other party while interlocutory is granted after hearing the other parties.

Mortune v Gimba (1983) 4 NCLR 237 at 242. I do agree with the lower Court that the trial Court in deciding the interlocutory application before it went on to comment extensively on the substantive matter that were sought for in the writ of summons. In an interlocutory matter, Courts are enjoined to talk less in the determination of the prayers submitted for resolution. Where the prayers overlap with the substantive claims, it is safer to refuse such application and order for the hearing of the substantive matter. I am of the firm view that the Justices of the lower Court were correct when they set aside the decision of the trial Court and ordered for a trial of the substantive suit before another Judge.”
See also CIL Risk and Asset Management Ltd vs. Ekiti State Govt. & Ors (2020) LPELR-49565 (SC); University Press Ltd vs. I.K Martins (Nig) Ltd (2000) 2 SC 125.
This means even if counsel decides to throw caution aboard, the Court cannot afford to do so.

The real issue the substantive case will be handling is whether the 1st Respondent is entitled to damages for the infringement of the Trademark by the Appellant. This

issue will involve determining who registered the trade mark first. This is the main issue in the substantive suit. Both the lower Court and this Court must not delve into this issue. I must limit myself to the principle that a Court must consider in deciding to grant or refuse an application for interlocutory injunction. I will be looking at those principles or conditions later when I will be discussing the merit of the appeal. Having so warned myself, I will now look at the merit of the appeal and in so doing I will adopt the issues for determination formulated by the Appellant however just issues 1 & 2 which to my mind addresses the issues in this appeal in relation to the grounds of appeal. For avoidance of doubt, the issues for determination in this appeal are as follows:
1. Whether the lower Court denied the Appellant fair hearing when it failed to properly or at all consider the Appellant’s Court processes in opposition to the 1st Respondent’s application for interlocutory injunction before granting same in favour of the 1st Respondent?
2. Whether the lower Court exercised its discretion judiciously and judicially when it

granted the interlocutory order of injunction in favour of the 1st Respondent?

I will naturally start with issue 1 as numerically 1 comes before 2. Apart from that issue 1 deals with the issue of fair hearing, which is the bedrock of every proceeding before any Court. The absence of fair hearing nullifies a proceeding and consequently the judgment. If any of the parties succeeds in challenging fair hearing in the proceeding, the whole proceeding will be declared null and void and so is the judgment no matter how well conducted and brilliant the judgment can be. See Dingyadi & Anor vs. INEC & Ors (2010) LPELR-40142 (SC).
In view of the effect of a successful challenge of lack of fair hearing in a proceeding a Court at whatever level must ensure that the proceedings are conducted in such a way that all the parties are given equal opportunity in presenting their case. This is the original tenet of fair hearing. In Arije vs. Arije & Ors (2018) LPELR-44193 (SC), the apex Court postulating on the doctrine of fair hearing held:
“Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution.

See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causasua (no one may be a judge in his own cause). See: R Vs. Rand (1866) LR Q.B. 230; Ndukauba Vs Kolomo & Anor. (2005) 4 NWLR (PT.915) 411; Ikomi Vs The State (1986) 5 SC 313; Akpamgbo Okadigbo Vs Chidi (2015) LPELR-24564 (SC) 1 @ 39 E – F. The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See: Unibiz Nig. Ltd. Vs Commercial Bank Credit Lyonnais Ltd. (2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable

to be set aside. See: Ariori Vs Elemo (1983) 1 SC 81; Kotoye Vs C.B.N (1989) 1 NWLR (Pt.98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See: Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23; Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290. All the authorities referred to above underpin the importance attached to the observance of the principles of natural justice in any adjudication. It follows that if the appellant’s contentions are well founded, and the lower Court raised certain issues suo motu without the benefit of any input from the parties before reaching its decision, the entire proceedings, no matter how well conducted would amount to a nullity.”
Similarly, in Ardo vs. INEC & Ors (2017) LPELR-41919 (SC), it was held thus:
“This Court in the case of DEDUWA vs OKORODUDU 4 LC 894 at 898 defined what is a fair Hearing:- “A fair hearing must, of course, be a hearing that does not

contravene the principles of natural justice. Evershed M.R. said in ABBOT VS SULLIVAN. In MOHAMMED VS KANO N.A., Ademola C.J.N. (delivering the Judgment of the Court) said at page 426:- “We think a fair hearing must involve a fair trial and a fair trial consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing it was suggested by Counsel is the impression of a reasonable person who was present at the trial whether, from his observation justice has been done in the case. We feel obliged to agree with this.” If, of course, there is no hearing of one party’s side of the case especially if it is through no fault of his own, this may also amount to no “Fair hearing” of his side of the case and he will not have had a “fair hearing in the determination of his civil rights and obligations to which he is entitled under Section 22(1) of the Constitution.” This Court had pronounced that “the right to fair hearing does not stop with the parties being present in Court.” It is a right to be heard at every material stage of the proceedings.”
No party should be denied the opportunity to present its case the way

he knows how to provided it is not done with disregard to the law and the rules of Court. A party who has been given such an opportunity but fails to take advantage of same cannot complain of lack of fair hearing. See Military Gov. of Lagos State & Ors vs. Adeyiga & Ors (2012) 2 SC (Pt. 1) 68; Ukwuyok & Ors vs. Ogbulu & Ors (2019) LPELR-48741 (SC).

As it relates to the original tenet of fair hearing, I agree with the 1st Respondent that the Appellant cannot complain that he was denied fair hearing. This is because the Appellant was given opportunity to defend the motion filed by the 1st Respondent for interlocutory injunction. The 1st Respondent’s motion was filed on 25/8/09 found on pages 6-28 of the records. The Appellant filed counter affidavit to the motion on 13/11/09 along with written address. These processes are found on pages 50-87 of the records. The Appellant also filed further and better affidavit contained on pages 88-100 of the records. The Appellant advanced argument in opposition to the motion. It was after argument that the lower Court delivered its ruling on the motion on 21/1/10. From the record, it is clear that

the Appellant had opportunity and actually presented its case before the Court gave the ruling.

The concept of fair hearing has been widened to include the duty on the Court to consider in its judgment all the issues which are material to the case presented by the parties. This is a duty on the Court. This trite position of the law was stated in the case of Honeywell Flour Mills Plc vs. Ecobank (2018) LPELR-45127 (SC) where the apex Court held thus:
“It is trite law, that a Court of law should always make pronouncement on or must determine all the issues raised before it by parties. See 7Up Bottling Company vs Abiola Sons Bottling Company Ltd (2001)6 SC 73. In this instant appeal and as I stated supra, none of issues 5, 6 and 7 had not been subsumed by any other issue. This 2nd issue raised by the appellant is therefore hereby resolved in favour of the appellant against the respondent. In the result, in view of my resolution of the 2nd issue in favour of the appellant, it will be premptous to proceed to consider at this stage, the other remaining two issues. It is therefore hereby ordered that this appeal be remitted to the lower Court for it

to consider Issues No 5, 6 and 7 which were validly raised and argued before it but were not determined by it, as well as the other complaint made by the appellant in his Amended Brief of Argument as itemised above. The Appeal therefore succeeds and is allowed.”
This view was also held by Kekere-Ekun, JSC in MTN vs. Corporate Communication Investment Ltd (2019) LPELR-47042 (SC) where his lordship puts it in these words:
“What is quite apparent from the portions of the judgment reproduced above, is that the learned trial Judge considered only the pleadings and evidence led by the claimant in reaching his decision on the expenses incurred. He was being cautious, since his was not the final Court, by considering the pleadings and evidence led by the appellant in the event that he was overruled on the incompetence of the Statement of Defence. This approach is in keeping with the advice often given by this Court that where a Court is not the final Court on the subject matter, it should endeavour to proffer an opinion on all the issues submitted to it so that the appellate Court would have the benefit of the Court’s reasoning in the event that

it does not agree with the position of the Court on the issue of competence, jurisdiction, locus standi, etc.
Where a Court fails to consider in the judgment relevant issues placed before it by the parties, the Court will be alleged to have denied the party fair hearing. See SPDC Ltd vs. Akpan & Ors (2014) LPELR-23530 (CA).

I must however make a distinction between outright denial of fair hearing that is in a situation where the party is not given an opportunity to present his case and a situation where the party presented his case but the Court did not consider all the issues in the judgment. While in the former case, the proceedings and the judgment will be a nullity, in the latter situation it will not be an outright nullity or declared null and void but whether it will be so declared will depend on the effect of the non-consideration of that issue. While in the former situation, refusing the party the right to present his case abinitio will nullify the proceedings and the judgment, in the later case it can only be so if there is a miscarriage of justice. This distinction has been by the apex Court in Uka vs. Irolo (2002) 35 WRN 3.

The case of the Appellant as to the denial of its fair hearing is not in its original sense of outright denial of fair hearing but rather on the ground that the lower Court did not consider its counter affidavit and further affidavit and the documents annexed before arriving at the decision it did. I must state in very clear terms that no party can complain of lack of fair hearing simply because the decision did not go the way it expected. Allowing such a complaint will take the matter of fair hearing too far. The wrong decision of a Court is not a subject of fair hearing.
The lower Court though did not in depth consider the affidavit and the counter affidavit of the parties in the judgment but there is indication that he looked at all the documents before arriving at his decision. To this extent, the lower Court on page 167 of the record said:
“In the present circumstance, the Court will have to consider the balance of convenience between the parties, the balance of their legal strength and the damage that the parties will each respectively suffer if the injunction is refused.
I have examined the facts of this case, and the applicable law,

especially the case of AMERICAN CYANAMID VS ETHICON LTD. and I find it as a dis-positive conclusion that the need to protect the legal right of the Plaintiff which is not disputed should be affirmed for it stands to suffer a more damaging injury should the application be refused than the 1st Defendant whose right at this stage is inchoate. In the circumstances, the application for the Interlocutory Injunction is hereby granted as prayed.
Having made the Order of Injunction, it is only fair and just that an Order of accelerated hearing of the matter is made and accordingly I fix the trial of the case to 24/2/2010.”
The above indicate that the lower Court looked at the documents and the affidavit before it before arriving at the ruling. This may not be the best way but that is how his lordship feel like putting together his thoughts on the case. Whether a judgment is good or bad is different from whether the judgment is correct or wrong. The style adopted in a judgment will determine whether it is good or bad while the decision itself will determine whether it is right or wrong. At the appellate level and as far as the parties are concerned, what

they want to know is whether the judgment is right or wrong. This is what I will be doing in this judgment. However, I must say that writing a good judgment is also important not only writing a correct judgment.
I must acknowledge the fact that the style of judgment writing is unique to each judge however there are certain characteristics of a good judgment. Every Judge has his style of writing judgment as there is no generally acceptable style. A good judgment must evaluate the evidence before the Judge, make findings based on the evaluation and then apply the law in the circumstance to arrive at a decision. No matter the style adopted by a Judge, the judgment must contain the basic characteristics of a good judgment. The style in writing a judgment is peculiar to a Judge but whichever style is used, a good judgment must have the characteristics of a good judgment stated above. In Omotola & Ors vs. State (2009) 2 FWLR (Pt. 468) 3437, the apex Court stated the characteristics of a good judgment in these words:
“As made clear in the above passage of the judgment of the Court below, the learned Justice of the Court below who wrote the lead

only opened its judgment by highlighting or restating the facts which the trial Court had accepted. I do not see how the statement could be considered as injurious to the interest of the appellants as would make it amount to a miscarriage of justice. It seems to me that the manner in which a judgment is to be written cannot be made universal to Judges. Each Judge has his own style and each case often calls for an approach considered most useful to make the particular judgment good enough for the occasion. The important thing is that all the known elements in a good judgment must be incorporated. In this connection, I gratefully adopt the observation of Akintan J.S.C. in Ogba v. Onwuzo (2005) 14 NWLR (Pt. 945) 331 at 334-335 where he said:
“Judgment writing is an art by itself in which every individual has his own peculiar style and method. All that a good judgment requires is that it must contain some we-known constituent parts. Thus, some of the constituent part which a good judgment must contain in case of a trial Court include: (1) the issues or questions to be decided in the case; (2) the essential facts of the case of each party and the

evidence led in support; (3) the resolution of the issues of fact and law raised in the case; (4) the conclusion or general inference drawn from the facts and the law as resolved; and (5) the verdict and orders made by the Court. See Oro v. Falade (1995) 5 NWLR (Pt. 396) at 407-408; Mogaji v. Odofin (1978) 4 SC 9; Ojogbue v. Nnubia (1972) 1 ANLR (Pt. 2) 226; and Olomosola v. Oloriawo (2002) 2 NWLR (Pt. 750) 113 at 125.”
See also A.G. Federation & Ors vs. Abubakar & Ors (2007) 10 NWLR (Pt. 1041) 1.
The judgment of the lower Court though did not meet the standard of a good judgment but it cannot be said by any stretch of imagination to amount to denial of fair hearing to the Appellant. I resolve this issue in favour of the 1st Respondent.

I will now address issue 2 which is on whether the lower Court was right in granting the interlocutory injunction against the Appellant in favour of the 1st Respondent. The power to grant an interlocutory injunction is discretionary and like all discretionary power, it must be exercised judicially and judiciously. There are certain conditions that the Applicant for an injunction should meet

before a Court grant same. These conditions are stated in a cloud of cases. I will make mention of Adeleke & Ors vs. Lawal & Ors (2013) 2 S.C. (Pt. 11) 38. The apex Court held thus:
“Since injunction is an equitable remedy, it is usually granted at the discretion of the Court which must be exercised judicially and judiciously. For the Court to exercise its discretion in favour of an applicant certain conditions must exist and this must be evidenced in the affidavit accompanying the motion on notice. The conditions for grant of interim and interlocutory injunctions are basically the same except for the element of urgency in interim injunction which is not pronounced in interlocutory injunctions. See: Modern Civil Procedure Law by A.F Afolayan and P.C Okorie published by Dee Sage Nigeria Limited 2007 at page 198. The conditions include:
(a) Existence of a legal right
(b) Substantial issue to be tried
(c) Balance of convenience
(d) Irreparable damage or injury
(e) Conduct of the parties
(f) Undertaking as to damages.
In Buhari vs Obasanjo (2003) 17 NWLR (Pt 850) 587, this Court, per Tobi JSC, spelt out the

principles guiding the application of interlocutory injunction at page 648 – 649 as follows:
“Some of the principles or factors to be considered in an application for interlocutory injunctions are:
1. There must be a subsisting action. See: The Praying Band of C and S vs. Udokwu (1991) 3 NWLR (part 182) 716
2. The subsisting action must clearly donate a legal right which the applicant must protect See: Kotoye vs CBN (1989) 1 NWLR (Part 98) 419; Woluchem v. Wokoma (1974) 3 SC 153; Obeya Memorial Hospital vs Attorney – General of the Federation (1987) 3 NWLR (part 60) 325
3. The applicant must show that there is a serious question or substantial issue to be tried. See: Kotoye vs CBN (supra); Nigerian Civil Service Union vs Essien (1985) 3 NWLR (Part 12) 306; Nwose v. Mbaekwe (1973) 3 ECSLR 136
4. And because of 3 above, the ‘status quo’ should be maintained pending the determination of the substantive action. See: Kotoye v CBN (supra); Fellowes v. Fisher (1975) 2 ALL ER 829; American Cyanamid Co. v. Ethicon Ltd (1975) AC 396.
5. The applicant must show that the balance of convenience is favour of

granting the application. See: Kotoye v. CBN (supra); Obeya Memorial Hospital v. Attorney-General of the Federation (supra); Akinlose v. A.I.T. Ltd (1961) WNLR 116.
6. The applicant must show there was no delay on his part in bringing the application. See Kotoye vs CBN supra.
7. The applicant must show that damages cannot be adequate compensation for the injury he wants the Court to protect. See: Kotoye vs CBN (supra); Obeya Memorial Hospital v. Attorney-General of the Federation (supra)
8. The applicant must make an undertaking to pay damages in the event of any wrongful exercise of the Court’s discretion in granting the injunction. See Kotoye vs CBN (supra); Itama vs Osaro – Lai (2000) 6 NWLR (Part 661) 515.”
See Aboseldehyde Laboratories Plc vs. Union Merchant Bank Ltd & Anor (2013) 2-3 S.C. (Pt. V) 155.

The lower Court did not consider the above issue condition by condition but made a general statement that he has examined all the facts before it. Let me now examine the facts to determine whether the lower Court was right in granting the interlocutory injunction.

I will briefly look at the affidavit

evidence to know whether the 1st Respondent satisfied the condition to enable the lower Court grant the application for injunction. I will take the conditions one after the other. That there is a subsisting action between the parties is not in doubt as on pages 1-5 of the records the writ of summons over the issue of trade mark infringement is clear. The 1st Respondent in paragraphs 3-6 of the affidavit in support of the motion has shown that he has a legal right that ought to be protected. It is his averment that the main product line of the company is Police Body size and underwear. In paragraph 5, the 1st Respondent averred that it has registered trade mark over the product. I reproduce the paragraph for ease of reference:
“That the Plaintiff’s registered certificates for the Trade mark over the said product as well as exclusive use of the design of the product’s package, presentation and get up are hereto attached and marked EXHIBITS 2A, 2B and 3 respectively.”

The serious issues for trial are whether the Appellant is liable to the 1st Respondent? There is dispute to that effect as shown in paragraphs 7-11 of the affidavit

in support. On the balance of convenience and whether damages will be adequate compensation the averments contained in paragraphs 12,13,14 & 15 of the affidavit takes care of that. The 1st Respondent made undertaking as to damages in paragraph 16. I reproduce the paragraph as follows:
“That the plaintiff undertakes to pay to the defendants or any one of them, such amount of damages as this Court may determine should it later be adjudged that the order hereby sought ought not to have been granted.”

On the issue of delay, paragraph 7 showed that the 1st Respondent came to know about this in August 2009 and the action was filed in the same August. There is therefore no delay whatsoever.

I have looked at the counter affidavit and further affidavit of the Appellant and placing both on the scale of justice, I agree with the lower Court that the balance of convenience is in favour of the 1st Respondent. The Appellant acknowledged in paragraph 6 of the counter affidavit that it is in the process of registering the trade mark of the product while the 1st Respondent has rushed to register the trade mark of the product. Placing the

affidavit of the 1st Respondent and Appellant side by side, the 1st Respondent has the upper hand as it has satisfied all the conditions for the granting of the injunction.
I resolve this issue in favour of the 1st Respondent.

Having resolved both issues in favour of the 1st Respondent, the decision is obvious. This appeal lacks merit, it fails and it is therefore dismissed. The decision of the lower Court is affirmed.

This appeal has taken sadly 10 years to determine the interlocutory appeal. I am not sure of the state of the substantive matter in the lower Court. If there is a stay at the lower Court, which I think there is, the substantive case will now go for continuation of trial. The idea of coming to the Court of Appeal for interlocutory appeal should be discouraged. If the case had been allowed to have been concluded before coming on appeal to take the whole matter it would have saved time. The lower Court in my opinion had made pronouncement on issue that borders on the substantive case. In the circumstance, I make a consequential order that the case file be returned to the Chief Judge of the Federal High Court for re-assignment to

another Judge to be given accelerated hearing.
I award cost of N200,000 (Two Hundred Thousand Naira) in favour of the 1st Respondent against the Appellant.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Ebiowei Tobi, J.C.A., and wish to add by way of emphasis that in deserving cases, an accelerated hearing of the substantive action should be the appropriate judicial course of action to take instead of dissipation of energy and squandering of time and financial resources for the pursuit of an application for interlocutory injunction, as sadly happened in this case. See Barbedos Ventures Ltd. v. FBN Plc (2016) 11 NWLR (pt.1523) 301.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI, JCA afforded me the opportunity of reading in draft before today the lead judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the judgment as mine with nothing further to add.

Appearances:

Adolphus Nwachukwu, Esq. For Appellant(s)

K. Nwanna Esq. – for 1ST RESPONDENT
For Respondent(s)

Appearances:

Adolphus Nwachukwu, Esq. For Appellant(s)

K. Nwanna Esq. – for 1ST RESPONDENT
For Respondent(s)