EZEUDO v. ALTECO CHEMICAL PTE LTD & ORS
(2020)LCN/14760(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Monday, November 16, 2020
CA/AW/64/2014
RATIO
TRADE MARK: PURPORT OF SECTION 3 OF THE MERCHANDISE MARKS ACT
The said Section 3 of the Merchandise Marks Act makes it an offence for any person to Forge or use any False trade description calculated to deceive. PER NWOSU-IHEME, J.C.A.
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
CHIJIOKE EZEUDO APPELANT(S)
And
- ALTECO CHEMICAL PTE LIMITED 2. COMMISSIONER OF POLICE ANAMBRA STATE 3. COMMISSIONER OF POLICE, FORCE INTELLIGENCE BUREAU, FORCE HEADQUARTER ANNEX, LAGOS 4. ASSISTANT INSPECTOR GENERAL OF POLICE, ZONE 9, UMUAHIA 5. SUPOL NICOLAS ANIEKE (TEAM LEADER FORCE HEADQUARTERS) LAGOS 6. INSPECTOR GENERAL OF POLICE RESPONDENT(S)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant was the Applicant at the trial Court in the Suit he filed against the Respondents. Judgment was entered against the Appellant in favour of the Respondents by A. O. OKUMA J, of the Onitsha Division of the Anambra State High Court in Suit No O/1493M/2012 delivered on the 14th day of November, 2013 wherein the lower Court dismissed the Application of the Appellant for the enforcement of his fundamental rights and awarded N20,000 as costs.
Aggrieved by that decision, the Appellant has appealed against the said judgment.
SUMMARY OF RELEVANT FACTS:
The Appellant and the 1st Respondent were said to be importers of packaged Glue commonly termed “Super Glue 110”.
The Appellant’s case as presented at the trial Court was that on or about the 19/10/2012, he applied in the name of “Divine Ray Industries Ltd” for the Registration of “ATELECO SUPER GLUE 110” as a Trade Mark in “CLASS 2” in the classes schedule to the Trade Marks Act. The application was acknowledged and a receipt issued. The Appellant imported a
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batch of the said Super glue 110 with the Trade Mark ATELECO. At the instance of the petition written by the 1st Respondent, the Appellant was arrested and detained at the State C. I. D. on the 3/11/2012. He was again arrested and detained at the Area Command, Onitsha of the Nigeria Police on the 14/11/2012.
The 1st Respondent’s version for the arrests and detentions of the Appellant using the 2nd – 6th Respondents was that the Appellant infringed his Trade Mark and design ALTECO 110 Super Glue, this was stated in paragraph 13 of the 1st Respondent’s Counter affidavit at page 42 of the Records.
The learned trial Judge believed the version of the Respondents and dismissed the Application of the Appellant for the enforcement of his Fundamental rights as well as damages and proceeded to award Twenty Thousand Naira as costs against the Appellant. This Appeal is predicated on the said Judgment.
Learned Counsel for the Appellant C. H. Onyiuke Esq., distilled two issues for determination thus:
1. “Whether arising from the clear facts of the case and/or investigation any crime was made out to warrant the arrest and
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detention of the Applicant.
2. Whether the manner of the various arrests and detentions of the appellant does not infringe his fundamental rights to liberty and dignity of his human person.”
Learned Counsel for the 1st Respondent, I. Ogbah Esq., raised a Preliminary Objection which he argued at pages 6 – 16 of the 1st Respondent’s brief and Notice of Preliminary Objection. Learned Counsel for the Appellant reacted to the Preliminary Objection in his Reply brief filed on the 11/10/2018 and deemed properly filed on the 15/1/2019.
I have painstakingly gone through the Preliminary Objection and see no justification for the said Preliminary Objection. It is hereby overruled.
Learned Counsel for the 1st Respondent also distilled two issues for determination as follows:
1. “Having regard to the facts and circumstances of this case and the clear and unambiguous provisions of Sections 34 and 35 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Whether the lower Court was right in its conclusion that there is a reasonable ground for the 1st Respondent to suspect that an offence has been
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committed to warrant the arrest and detention of the Suspects by the 2nd to 6th Respondents.”
2. Whether the Appellant is not entitled to any Claim for damages against the Respondents jointly or severally.”
Learned Counsel for the Appellant C. H. Onyiuke, Esq. in his arguments on the issues he raised, contended that the Appellant duly applied to the Registrar of Trade Marks for the registration of his brand of Super Glue “Ateleco” and same having been acknowledged cannot be said to have forged same or falsely applied same to warrant the imputation of crime.
Counsel submitted that both the Appellant and the 1st Respondent were importers of the said Glue from different business partners in China and neither the Registrar of Trade Marks nor the Court declared the Appellant’s accepted Mark as “Fake”, “False” or “Forged” as to warrant the operation of the said Merchandize Marks Act relied on by the trial Court.
He argued that the Police and the other Respondents took it upon themselves to be the accusers, the Judges and the executioners in a clearly contestable set of
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“Marks” and that it is the Registrar of Trade Marks or the Federal High Court that could determine the sameness or similarity of the two marks.
Counsel opined that the 1st Respondent maliciously wrote two different petitions against the Appellant to the same Nigeria Police and personally ensured the various arrests and detention of the Appellant without charging him to Court.
He urged this Court to set aside the Judgment of the trial Court which he described as miscarriage of justice.
Reacting to the foregoing, learned Counsel for the 1st Respondent, I. Ogbah Esq., referred to Section 4 of the Police Act and argued that the 2nd – 6th Respondents have very wide latitude under the said Section 4 of the Police Act which gives the Police the power to prevent crime, arrest offenders/suspects and maintain law and order in the society and ultimately prosecute offenders.
Counsel referred this Court to A. G. ANAMBRA STATE V. CHIEF CHRIS UBA (2005) 3 WRN 1919 were this Court held that for a person to go to Court to be shielded against criminal investigation and prosecution is tantamount to interference with the powers given to Law
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officers under the constitution in the control of criminal investigation.
In the determination of this appeal the way and manner the Police carried out their investigation should be x-rayed to determine whether at the conclusion of their investigation they established that the complaint was criminal in nature or a purely civil matter.
The 1st Respondent did not aver any where on Record that it manufactures the said ALTECO 110 Super Glue. Rather in paragraph 13 of its counter affidavit the 1st Respondent averred:
“13 That the 1st Respondent …… sometime this year discovered that several persons were faking and committing acts by importing some large consignment of fake and adulterated ALTECO 110 Super Glue, same being an imitation and passing off of the 1st Plaintiff’s registered Trade Mark and Design and in most cases the product contained no Super Glue at all.”
(See pages 42 – 43 of the Record)
The Appellant maintained that he applied in the name of “Divine Ray Industries Ltd” for the registration of “ATELECO SUPER GLUE 110” as a Trade Mark in “CLASS 2” in
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the Classes schedule to the Trade Marks Act and the said application was acknowledged and that he obtained receipt of payment (see page 31 of the Records). At page 32 of the Records, there is an acceptance form stamped by the Registrar of Trade Marks.
The Police ought to have taken a trip to the said Trade Marks Registry in Abuja to verify all these assertions and write a report which would have helped the Court in arriving at a decision one way or the other. This they failed to do, rather they were busy arresting and rearresting the Appellant at the prodding of the 1st Respondent thereby leaving undone what they ought to have done.
The question then is, having claimed that he applied for the registration of his Trade Mark ATELECO SUPER GLUE 110, obtained an acknowledgement form and a receipt for payment, could the Appellant be said to have forged the same Trade Mark when the Police clearly did not set foot at the said Trade Marks Registry Abuja? I think not.
The said Section 3 of the Merchandise Marks Act makes it an offence for any person to Forge or use any False trade description calculated to deceive.
Having not investigated this
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aspect of false or forged Trade Marks at the Registry of Trade Marks, there was no reason or justification to have labelled the act of the Appellant “Criminal” to warrant invoking Section 3 of the Merchandise Marks Act.
The decision to charge the Appellant under the said Section 3 of the Merchandise Marks Act was not borne out of any investigation whatsoever. There was therefore no basis for the trial Court to dismiss the Application for the enforcement of the Appellant’s Fundamental Rights based on the criminal charge under Sec. 3 of the Merchandise Marks Act.
I will rather dismiss the Application for the enforcement of the Fundamental right of the Appellant based on the fact that there was no investigation or report by the Police to justify the said charge. Based on the above, it was difficult if not impossible to safely ascertain the guilt or innocence of the Appellant to sustain his application and the damages that go with it.
It is on this basis that I set aside the Judgment of the trial Court.
Accordingly, this appeal succeeds in part. The Judgment of the trial Court in Suit No O/1493M/2012 delivered on the 14th of
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November, 2013 by A. O. Okuma J., sitting at the Onitsha Division of the Anambra State High Court is hereby set aside purely for the reasons stated above. For the same reasons as stated above i.e failure by the Police to carry out proper investigation, there is no basis to ascertain whether the arrest or detention of the Appellant was justified or not, it also stands to reason that the award of damages that go with the Application for the enforcement of Fundamental rights crumbled with the Application.
In view of this development therefore, the 24 (Twenty Four) cartons of the Appellant’s Super Glue confiscated by the Police should be released to him forthwith.
I make no order as the costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now the lead judgment just delivered by my brother C. E. NWOSU-IHEME, JCA.
I agree with her reasoning and conclusions.
The appeal succeeds in part.
I abide by the consequential order made as to costs that there shall be no order as to costs.
BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment just delivered by my learned brother Nwosu-Iheme JCA. I agree with and
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adopt the reasoning and conclusion in the lead judgment and I also set aside the judgment by the lower Court and abide by the consequential orders made therein.
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Appearances:
H. Onyiuke Esq., with him, O. N. Ukatu For Appellant(s)
O. Ogbah Esq. – for the 1st Respondent
J. E. Onyegbu – for the 2nd – 6th Respondents. For Respondent(s)
