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J.C. UDEOZOR & SON GLOBAL IND. LTD v. CHAZMAX PHARMACEUTICAL IND. LTD (2021)

J.C. UDEOZOR & SON GLOBAL IND. LTD v. CHAZMAX PHARMACEUTICAL IND. LTD

(2021)LCN/15128(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/B/311/2016

Before Our Lordships:

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

C. UDEOZOR & SON GLOBAL INDUSTRIES LTD APPELANT(S)

And

CHAZMAX PHARMACEUTICAL INDUSTRIES LTD RESPONDENT(S)

RATIO

POSITION OF THE LAW AGAINST PROLIFERATION OF ISSUES

…one ground of appeal cannot give birth to more than one issue. In other words, it is wrong to formulate more than one issue from one ground of appeal as has been done by appellant’s counsel. The result is that there is proliferation of issues and such issues are liable to be struck out. In OKWUAGBALA v. IKWUEME (2010) LPELR – 2538 (SC) PAGES 5 – 6, Onnoghen, JSC, as he then was, stated the law thus:- “…It is settled law that though a counsel can formulate an issue out of a ground of appeal he is not allowed to formulate two or more issues out of a ground of appeal and that where more than an issue is formulated out of a ground of appeal, the issues are incompetent. It is known as the rule or principle against proliferation of issues.” In ADEYEMI v. STATE (2014) 13 NWLR (PT. 1423) 1342. 152 Peter-Odili, JSC re-stated the law in the following terms: “The judicial authorities of this Court on the matter of proliferation of issues have pointed to the fact that when such an occurrence presents it, produces no room for manoeuver as the issues so formulated come to naught. The damning situation is anchored on the fact that in the determination of an appeal, the arguments are based on issues and not on the grounds of appeal.” PER JOSEPH EYO EKANEM, J.C.A. 

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, holden at Benin City (the trial Court), delivered on 14/12/2015 in suit No. FHC/B/CS/94/2014 by A. M. LIMAN, J. In the judgment, the trial Court dismissed in its entirety the claim of the appellant against the respondent.

Aggrieved by the decision, the appellant filed a notice of appeal on 18/12/2015 against the same. The notice of appeal incorporates five grounds of appeal and was subsequently amended by the order of this Court.

The facts of the case leading to this appeal may be summarized as follows: The appellant, a limited liability company, is the manufacturer of a balm known as “ABONIKI BALM”. The appellant applied for the trademark “ABONIKI BALM” to be registered at the Trademarks Registry, Federal Ministry of Commerce, Abuja, now Federal Ministry of Industry, Trade and Investment, Abuja, and the same was duly registered. The same was also registered at the Patent and Design Registry. The appellant sued the respondent for infringement of its trade mark design and for passing off its

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CHAZMAX balm as its balm. In the writ of summons and the amended statement of claim, the appellant claimed as follows against the respondent:-
“A. DECLARATION that the product purporting to be the Balm being manufactured/produced, distributed and offered for sale by the Defendant and same being stocked, distributed and offered for sale by the Defendant being the trademark CHAZMAX BALM or any other words so closely resembling the plaintiff’s registered packet, design bottle design pack, or being essentially similar in all material respects including packaging and bottling to the plaintiff’s registered product i.e. ABONIKI BALM is calculated to mislead/deceive the public that the said Balm product – CHAZMAX BALM as the balm product of the plaintiff.
B. A DECLARATION that the entire Balm packet design, bottling and packaging of CHAZMAX BALM is a complete passed-off product of the plaintiff’s ABONIKI BALM design packet, bottling, packaging etc.
C. A DECLARATION that the balm Packet Design of CHAZMAX BALM by reason of label colouration, packaging etc is a gross infringement of the proprietary rights of the plaintiff’s registered

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Packet/Design ABONIKI BALM which is registered in class 3 in the Trade Marks Registry with No. RTM 73286 and at the Patent and Design Registry with registered design No. RD 14713 in the Patent and Design Registry of the Federal Ministry of Industry, Trade and Investment, Abuja.
D. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants whether acting by themselves, their servants, assigns or privies or otherwise however so called from doing the following acts or any of them, that is to say:-
(a) Passing-off or attempting to pass-off or causing, enabling or assisting others to pass-off “CHAZMAX BALM” not of the Plaintiff’s manufacture or merchandise as and for the product of Plaintiffs by the user or in connection therewith in the course of the Design of “CHAZMAX BALM” or adopting the distinctive get-on phrase, logo, packaging or label design, etc identical in all essential details to that of the Plaintiff’s “ABONIKI BALM” Packet Design or any colourable imitation thereof without duly distinguishing such packaging from that of Plaintiff’s or by any other means.
(b) Manufacturing/Producing, selling or offering for sale or supplying Balms in

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any design package of Get-on phrase bearing the name “CHAZMAX BALM” or any other words closely resembling the Plaintiff’s Packet/Design “ABONIKI BALM” as registered in class 3 in the Trade Marks Registry with No. RTM 73286 and at the Patent and Design Registry with registered design No. RD 14713 in the Patent and Design Registry of the Federal Ministry of Industry, Trade and Investment, Abuja, as to be calculated to lead to the belief that the Balm is a product of the Plaintiff.
E. AN ORDER to deliver up and surrender to the Plaintiff for destruction upon oath of all Packet/Design and all other material in packages and/or Get-on phrase not of the Plaintiff’s manufacture or merchandise yet bearing the Design Pack “CHAZMAX BALM” identical with the Plaintiff’s “ABONIKI BALM” Packet and sold in the Plaintiff’s distinctive Get-on phrase; all moulds, raw materials, printing blocks and other materials in the possession, custody or control of the Defendant, their servants, agents or privies or any of them, the use of which will be in breach of the INJUNCTION prayed for and verification upon oath that the Defendant has no such articles in their possession, custody or control.

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  1. AN ORDER that the Defendant, whether acting by themselves, their servants, agents or privies or any of them do make and serve upon the Plaintiff an affidavit disclosing when, to whom and in what quantities they have sold or supplied, purchased or received such Balm aforesaid, exhibiting true copies of all documents in their possession, power or custody or relating to the facts and matters therein disclosed and payment of all sums found upon making such an affidavit.
    G. An enquiry as to damages sustained by the Plaintiff or at the Plaintiff’s option an account of the part of the Defendant profit to which the Plaintiff is entitled and payment of all sums found due upon making such enquiry or account by reason of their having carried out the said acts of infringement and passing off.
    H. The sum of N1,000,000.00 (One Million Naira) being total loss the Plaintiff suffered as a result of the unlawful acts of the Defendants which acts have brought about profound decline in the Plaintiff’s Product (ABONIKI BALM) and consequently reduction in proceeds of sales.
    I. The sum of N5,000,000.00 (Five Million Naira) being general

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damages for loss of reputation and goodwill suffered by the Plaintiff as a result of the Defendant’s unlawful acts.
J. The sum of N500,000.00 (Five Hundred Thousand Naira) being cost of this action.”

The respondent filed a statement of defence denying the claim.

The matter went to trial at which the appellant led evidence through two witnesses and tendered nine exhibits, to wit: Exhibits A – I. The respondent testified through one witness and tendered five exhibits, namely: Exhibits DA – DE. After taking addresses, the trial Court, as I have already stated, dismissed the case of the appellant.

Parties filed and exchanged briefs of argument. At the hearing of the appeal on 18/2/2021, TOM OSA-OGBEIDE, ESQ., for the appellant adopted and relied on appellant’s brief of argument filed on 5/3/2019 in urging the Court to allow the appeal and set aside the decision of the trial Court.

OKEY ABAZU, ESQ., for the respondent adopted and relied upon respondent’s brief of argument which was filed on 25/4/2019 in urging the Court to dismiss the appeal.

The following issues have been formulated in the appellant’s brief of argument for

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the determination of the appeal:-
“1. Whether or not the learned trial Judge was right when he held that the Appellant did not plead the period during which the Respondent was found to have passed off or infringed the Plaintiffs products in spite of obvious evidence to the contrary in the Appellant’s statement of claim?
2. Whether or not the Appellant on the totality of the evidence led and exhibits tendered before the lower Court is not entitled to the relief sought by him?
3. Whether or not the learned Trial Judge was right in dismissing the Appellant’s case and awarding N20,000.00 cost in favour of the Respondent?

In the respondent’s brief of argument, two issues are distilled for the determination of the appeal, namely:
“1. Whether the registered trade mark and design of the appellant is simply the word “aboniki” or consists of the get up with which the word is presented on the appellant’s product’s packaging.
2. Whether the respondent infringes the appellant registered trademark and design.”

I shall pause at this point to note that in arguing the issues identified by him, appellant’s counsel set out the

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grounds from which his issues are derived.
They are as follows:
(1) ISSUE 1 – Distilled from grounds 1, 2, 3, and 4 (see page 9 of appellant’s brief)
(2) ISSUE 2 – Distilled from grounds 1, 2 and 3 (see page 12 of the said brief)
(3) ISSUE 3 – Distilled from all the grounds (see page 13 of the said brief)
There is something fundamentally wrong here. This is because one ground of appeal cannot give birth to more than one issue. In other words, it is wrong to formulate more than one issue from one ground of appeal as has been done by appellant’s counsel. The result is that there is proliferation of issues and such issues are liable to be struck out. In OKWUAGBALA v. IKWUEME (2010) LPELR – 2538 (SC) PAGES 5 – 6, Onnoghen, JSC, as he then was, stated the law thus:-
“…It is settled law that though a counsel can formulate an issue out of a ground of appeal he is not allowed to formulate two or more issues out of a ground of appeal and that where more than an issue is formulated out of a ground of appeal, the issues are incompetent. It is known as the rule or principle against proliferation of issues.”

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In ADEYEMI v. STATE (2014) 13 NWLR (PT. 1423) 1342. 152 Peter-Odili, JSC re-stated the law in the following terms:
“The judicial authorities of this Court on the matter of proliferation of issues have pointed to the fact that when such an occurrence presents it, produces no room for manoeuver as the issues so formulated come to naught. The damning situation is anchored on the fact that in the determination of an appeal, the arguments are based on issues and not on the grounds of appeal.”

Consequent upon the foregoing, I hereby strike out issues 2 and 3 of the appellant for amounting to proliferation of issues. This leaves the appellant with only issue 1 for the determination of the appeal.

In arguing his issue 1, appellant’s counsel submitted that the relevant period to construe when wrongs are committed against any party is the period of discovery of the wrong committed. He noted that the appellant wrote a petition to the Assistant Inspector-General of Police dated 15/7/2014 complaining of the wrong committed by the respondent. It was his contention that this period of the complaint was the relevant period to take into consideration in determining the

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date or the period of infringement, if at all necessary. He contended that the trial Court erred when it held that the appellant did not plead the period during which the respondent was found to have infringed the appellant’s product as it is immaterial. This, he said, is because what is important is proof that there was an infringement of a right and not the particular time when the right was infringed. He referred to Sections 19 and 25 of the Patent and Designs Act which he stated preclude the imitation of a registered industrial design by an unregistered user.

The respondent did not proffer any argument in respect of this issue.

The trial Court held at page 192 of the record of appeal as follows:
“I have examined and compared the two products and I am of form (sic: firm) new (sic: view) that physical examination has revealed no difference as distinctive between them in terms of size, capping shape and colour. In terms of physical and shape similarities ….
However, while there is evidence that the patent was registered 12th day of September, 2008 and expired in 25/8/2013, there are no pleaded facts as to the date or period

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the patent design was infringed by the Defendant. There must be evidence that infringing products were produced and passed off between the 12th day of September and 25th day of August, 2013. If however the contention of the plaintiff is that the infringement took place between after the renewal of the design, then there must be documentary evidence to show that the certificate of Registration of Design No. RPD/D/RD 15376 was renewed and it was during the renewal that the infringement took place. This fact must not only be specifically pleaded but also evidence in support must be led. There was no such pleading. The effect of not pleading a material fact means, even if evidence is led in support of it, it goes to no issue… In the circumstance of the failure to plead the period of infringement and lead evidence in support of it, is fatal to plaintiff’s case.”

I have examined the statement of claim of the appellant at pages 105 – 110 of the record of appeal. I find no averment as to the period of time during which the respondent was found allegedly infringing appellant’s product or passing off the same. The letter written to the Assistant Inspector-General

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of Police does not also state the period. Even if it does, since the relevant period is not pleaded, it would go to no issue. The trial Court was therefore right in holding that the appellant did not plead the period of the alleged infringement.

Issue 1 of the appellant simply ask if the learned trial judge was right in holding that the period of passing off or infringement was not pleaded inspite of obvious evidence to the contrary in the statement of claim. Having held that there is no such averment in the statement of claim, any other argument outside that point falls outside the scope of the issue and must be discountenanced.
I accordingly discountenance the same.
I therefore enter affirmative answer to the lone issue for determination and resolve it against the appellant.

Since the only live issue has been resolved against the appellant, the inexorable conclusion that I reach is that the appeal is devoid of merit and it fails. I accordingly dismiss the same and affirm the judgment of the trial Court.
The parties shall bear their costs.

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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read the draft copy of my learned brother JOSEPH EYO EKANEM, JCA. I agree with the reasons and conclusion in the lead judgment, I believe it has covered the field.

I also dismiss the appeal and affirm the judgment of the trial Court. I align myself with the orders contained in the lead judgment and adopt them as mine, including that as to cost.

BALKISU BELLO ALIYU, J.C.A.: I was privileged to read in draft the judgment prepared by my learned brother Joseph Eyo Ekanem, JCA and I am in total agreement with the reasoning and conclusion made in the resolution of the only live issue for determination against the Appellant. I too join him in resolving the said lone issue against the Appellant.

Consequently, the appeal fails and it is dismissed by me as well. I affirm the judgment of the Federal High Court, Benin Judicial Division delivered on the 14th December, 2015 in respect of suit NO: FHC/B/CS/94/2014. I abide by the order of cost made in the lead judgment.

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Appearances:

TOM OSA-OGBEIDE, ESQ. For Appellant(s)

OKEY ABAZU, ESQ. For Respondent(s)