⦿ CASE SUMMARY OF:
Society Bic S.A. & Ors v. Charzin Industries Limited (2014) – SC
by NSA PaulPipAr
– Cause of action;
– trade libel;
1. Society BIC S. A.;
2. Compagnie De Moulages;
3. Nigerian Ball Point Pen Ind. Ltd.
1. Charzin Industries Limited
⦿ LEAD JUDGEMENT DELIVERED BY:
Nwali Sylvester Ngwuta, J.S.C.
* FOR THE APPELLANT
– Ekpe Asuquo Esq.
* FOR THE RESPONDENT
– Andrew Igboekwe Esq.
⦿ FACT (as relating to the issues)
Before the High Court of Justice of Lagos State, Lagos Judicial Division, the plaintiff, now respondent, claimed against the defendants, now appellants, as follows: “(a) The sum of N10,000,000.00 (Ten million naira) as damages for injury suffered by reason of the libel on the plaintiff’s “CHARZIN” Ball Point Pens contained in the advertisements the defendants published and caused to be published in the issues of the “Vanguard Newspaper, of August 18, 1995 on page 10 and the Daily Times Newspaper of November 13, 1995 in page 4. (b) A perpetual injunction restraining the defendants and each of them whether by themselves or by their servants or agents from further printing, issuing, publishing or circulating or causing to be printed, issued, published or any other similar libel affecting the plaintiff.”
After service on the defendants, the defendants filed a motion asking the court to strike out the case for the court lacks jurisdiction to hear the case; and further, that the subject matter before the court is the same as a subject matter in another suit.
After hearing the motion, the trial judge dismissed it saying that it has the requisite jurisdiction to hear the case. The defendants dissatisfied then appealed to the Court of Appeal which also dismissed the suit.
This is a further appeal by the Defendants now Appellant.
1. Whether the Court below was right in deeming as abandoned prayer 2 in the appellants’ motion. Prayer 2 in the motion filed by the appellants as defendants/applicants in the trial Court reads: “2. An order striking out this Suit as constituting an abuse of Court process in view of the fact that the issues necessary for the determination of the same are subjudice in the case of Suit No. FHC/L/C/S/1182/95, Societe Bic S.A.A & Compagnie De Moulages v. Charzin Industries Ltd & Charles Ezeagwu.”
2. Whether the Court of Appeal was right in holding that the Respondent’s cause of action in this Suit was founded in tort and not trademark and therefore the High Court of Lagos State has the jurisdiction to hear and determine the Suit.
3. Whether from the facts and circumstances of this case the Court of Appeal was right in holding that for purposes of determining jurisdiction, the plaintiffs’ cause of action is defined by reference to only the plaintiff’s statement of claim
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANTS BUT IN FAVOUR OF THE RESPONDENT.
i. From the record, not only did the learned Counsel fail to mention the second relief but she actually failed to move the Court. It would have been different if the learned Counsel had asked the Court to grant the reliefs in the motion paper or had moved in terms of the motion paper. With respect to the learned Counsel for the appellants, the motion was treated with levity as if such applications are granted as a matter of grace. The Court below was right to have held that the second relief was abandoned and only the part of reliefs proved could have been granted.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANTS BUT IN FAVOUR OF THE RESPONDENT.
i. The claim is that the appellants’, by their publications in the National Dailies portrayed the respondent’s product as fake or imitation. It is the claim of the respondent that the publications were made of its product called Charzin, which was to be avoided by the public as fake or imitation. I agree with the Court below that the claim was based on a trade libel and does not involve trademark.
ii. The publication in the Newspapers warns the reading public to avoid the respondent’s brand of ball point pens as the said products are imitations. The respondent says this is a false and malicious publication by the appellants. This is clearly the Tort of Libel. Nowhere in the pleadings is an infringing of the respondents trade mark remotely alleged. The provisions of Section 230(i) (f) of Decree No.107 of 1993 of Section 251 (i) (f) of the 1999 Constitution are in the circumstances not applicable.
3. ISSUE 3 WAS RESOLVED IN FAVOUR OF THE RESPONDENT BUT AGAINST THE APPELLANTS.
i. In determining the issue of jurisdiction, it is the claim endorsed on the Writ or stated in the Statement of Claim that will be considered, not the facts averred in the Statement of Claim or the affidavit evidence to be relied on by the plaintiff. It is a misconception for learned Counsel for the appellants, to refer to facts pleaded in the Statement of Claim or averments in affidavit as components of the cause of action to be relied on in ascertaining the jurisdiction of the Court.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In Madukolu v. Nkemdilim (1962) 1 All NLR 587, this Court stated the ingredients of jurisdiction thus: (a) The Court or tribunal must be properly constituted with respect to the number and qualification of its members. (b) The subject matter of the action must be within its jurisdiction. (c) The action is initiated by due process of law. (d) Any condition precedent to the exercise of its jurisdiction has been fulfilled.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It is an established principle of law that the number of grounds of appeal should on no account be less than the issues for determination and framing two issues from one ground of appeal is a violation of the said principle. – Ngwuta, JSC. BIC v. Charzin (2014)
A ground of appeal should not be split to raise two issues. – Ngwuta, JSC. BIC v. Charzin (2014)
An issue for determination not related to or based on grounds of appeal is not only incompetent but completely valueless and must be ignored by the appellate Court. – Ngwuta, JSC. BIC v. Charzin (2014)
The term “cause of action” is judicially defined as denoting every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the Court. It is any act on the part of the defendant which gives the plaintiff a cause to complain. – Ngwuta, JSC. BIC v. Charzin (2014)
It is basic that it is the claim of the plaintiff as can be gleaned from the Writ of Summons and Statement of Claim, that determines the jurisdiction of a court to entertain a matter. – Afolabi Fabiyi, JSC. BIC v. Charzin (2014)
This is an interlocutory appeal from the decision of Hunponu-Wusu J of a Lagos High Court where his lordship ruled that the State High Court has jurisdiction to hear the plaintiff/respondents claims. This suit was filed in 1995. Nineteen years ago. It took nineteen years to resolve the simple issue of jurisdiction. The case would now be sent back to the High Court for hearing of the main suit. That would possibly be settled after fifteen years or more. This is unfortunate and a sad state of affairs for the Rule of Law. Cases must be heard with dispatch and resolved quickly. The better course would have been for the trial judge to proceed with the hearing of the case after the Ruling on jurisdiction, since the Ruling on jurisdiction could easily be a subject of appeal after judgment. This is clearly an unnecessary interlocutory appeal, a waste of client’s resources and judicial time. Such unnecessary interlocutory appeals have been frowned upon by this court in a plethora of cases. – Rhodes-Vivour, JSC. BIC v. Charzin (2014)
It is an established fundamental principle that while a Judge can expound his jurisdiction, he cannot expand same beyond the limit imposed by law. A Judge does not hunger after jurisdiction. With due respect to learned Counsel, he portrayed His Lordship as having unlawfully assumed jurisdiction before he made effort to justify the illegal act of assuming jurisdiction denied him by the facts and law applicable to the claim before him. He also showed the Judge as having circumvented the bounds placed on his jurisdiction by law. The above are unkind and unprofessional statements by a lawyer in reference to a Judge. It is more disturbing when the statements, as in this case, are entirely without substance. This judgment has vindicated the learned trial Judge and the statements reflected on learned Counsel who made them as being ignorant of the claim and the law applicable to same, or is bent on casting aspersion on the learned trial Judge by any means. If a trial Judge makes a mistake in his judgment, it is enough for Counsel to demonstrate the error for the appellate Court to correct without putting to question the impartiality and ipso facto the integrity of the trial Judge without valid grounds for so doing. – Ngwuta, JSC. BIC v. Charzin (2014)
Trade Mark is a distinctive mark of authenticity through which the product of a particular manufacturer may be distinguished from those of others by word, name, symbol or device. A car manufacturer who fixes or inscribes on his cars the three pointed star may be infringing the Mercedes Benz trade mark. Also affixing the flying lady on a car may be infringing the Rolls Royce Trade Mark. Both examples are the distinctive mark of authenticity by which both motorcars are distinguished from those of other manufactures. Trade Marks are registered and remain personal to the manufacturers. – Rhodes-Vivour, JSC. BIC v. Charzin (2014)
Libel on the other hand is either written, (defamation) or spoken (slander). A libel is any publication in print, writing, pictures, or signs that is injurious to the reputation of someone else. Claims in libel succeed when found to be false. – Rhodes-Vivour, JSC. BIC v. Charzin (2014)
Before I end this judgment, I wish to observe that this matter was filed at the Lagos State High Court Registry in 1995. Today is the 14th day of February, 2014, about 19 years thereafter. The sad commentary is that hearing in the main suit is yet to commence. With the outcome of this appeal, hearing in the suit will now commence at the Lagos State High Court. Only God knows how long the matter will last in that court, not to mention subsequent appeals that may follow. In the interim, the parties would, with patience and longsuffering, be waiting for justice. What manner of justice, I may ask. Would it not have been more reasonable to allow the matter to be heard to conclusion and whatever is the outcome of the case, an appeal thereof would be combined with the interlocutory appeal as issue of jurisdiction can be raised at any time even for the first time on appeal in this court. I urge counsel to heed the various admonitions of this court in this regard. Time and resources would be saved in the process. I hope parties would know on whose door step to heap the blame. Definitely, not the court. – Inyang Okoro, JSC. BIC v. Charzin (2014)