⦿ CASE SUMMARY OF:
Densy Industries (Nig) Ltd. v. Sunday Uzokwe (1998) – CA
by NSA PaulPipAr
⦿ TAG(S)
– Design;
– Patent;
⦿ PARTIES
APPELLANT
Densy Industries (Nig) Ltd.
v.
RESPONDENT
Sunday Uzokwe (Trading under the name and style of Sunday Innocent & Co.)
⦿ CITATION
(1999) 2 NWLR (Pt.591) pg.392;
(1998) LPELR-6402(CA)
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Tobi, J.C.A.
⦿ APPEARANCES
* FOR THE APPELLANT
– Mr. O. Oyewole.
* FOR THE RESPONDENT
– Mr. S.O.P. Okeke.
AAA
⦿ FACT (as relating to the issues)
This matter has to do with a design.
It bears registration No.4464. The appellant, as plaintiff, asked for two declarations in the lower court:
(1) That the 1st defendant (now respondent) has not acquired any exclusive privileges or rights in Nigeria in the design.
(2) That the design is invalid being neither new nor original and rectification of the register of designs by the 2nd defendant.
After hearing evidence from the parties, the learned trial Judge dismissed the case of the appellant. He said in the last paragraph of the judgment: “After a careful consideration of the evidence adduced, the submissions of the learned counsel for both sides and the case law I have come to the conclusion that the failure of the plaintiff to tender the industrial design applied in the production of Exhibits 3A and 3B is fatal to its case. The plaintiff has therefore not proved that the 1st defendant’s registered design No.4464 is not new. Consequently, the suit is hereby dismissed with N500.00 costs to each of the defendants”.
Dissatisfied, the appellant filed an appeal.
⦿ ISSUE(S)
1. Whether Exhibit 13 was new at the time it was registered, within the meaning of section 13 of the Patents and Designs Act, 1990?
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
RULING:
i. Where there is evidence that there exists a document on an issue before the court the best evidence is the production of the document unless it has been destroyed or stolen or can only be procured by incurring heavy and substantial expenses, The production could either be by way of primary or secondary evidence. Failure to do so in the absence of a tenable explanation, will he fatal to the case of the party.  In the light of the claim of the appellant in evidence that it procured a design, there was need to tender the design in court as required by the Evidence Act. Failure to do so clearly attracts the invocation or section 149(d) of the Act.
ii. Since the appellant did not discharge the burden of proof either on the basis of preponderance of evidence or on probability, the learned trial Judge, in my humble view, was correct in dismissing his claim.
⦿ REFERENCED
S. 13 of the Patent & Design Act;
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
AAAA
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
Primary evidence means the document itself produced for the inspection of the court. – Tobi, JCA. Densy v. Uzokwe (1998)
The person who makes allegations in a pleading is, by the ordinary rules of pleading, bound to produce evidence to substantiate them as part of his case. That person is generally the plaintiff though not invariably so. Where a plaintiff fails to prove a fact or facts essential to his case, a court of law is competent to dismiss the case. – Tobi, JCA. Densy v. Uzokwe (1998)
In judicial proceedings, the number given to an exhibit is not material. What is material is the substance or content of the exhibit tendered and admitted. – Tobi, JCA. Densy v. Uzokwe (1998)
* SUBSTANTIVE
A mere trade or business variation without more is a mere garb which is incapable of wearing the nomenclature “new” in the context of subsection (5). A design which is cosmetically different from an earlier one may amount to a trade gimmick which is designed essentially or materially to overreach the business society and equity will not make available its sympathetic hands to such a design. Certainly not. – Tobi, JCA. Densy v. Uzokwe (1998)
The adjective “new” etymologically means lately made or produced, fresh, not much used. It also means haying lately happened, recent and modern. In Re Traners Application (1951) 68 P.R.C. 255, the court held that nothing will be counted new or original unless it differs from what has gone before by something more than ordinary trade variants, or features common in the trade. – Tobi, JCA. Densy v. Uzokwe (1998)
A party who alleges the earlier existence of a design must certainly prove such existence. And the most Fundamental way of proof is the tendering of the design in court. It is only when the court physically sees and examines the earlier design along with the other one that ajudicious conclusion based on the Judge’s wisdom or sagacity will be drawn. Otherwise, the exercise is an impossible one, the Judge being a human being and not God, who is omniscience. A Judge’s power of inquiry has human limitations. and such is the predicament of the learned trial Judge in the circumstances of the non-tendering of the so claimed earlier design, of the appellant. – Tobi, JCA. Densy v. Uzokwe (1998)
In a matter concerning novelty in the law of designs, which permeates to the clement of newness provided for in section 13 of the Act, the physical inspection of the design in question is a desideratum. There is no half way to it. – Tobi, JCA. Densy v. Uzokwe (1998)
