PATKUN V. NIGER SHOES MANUFACTURING CO. LTD.

• Pages: 214-233

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NIGERIAN SUPREME COURT CASES

[1988] 3 N.S.C.C.

It is not true that I built the factory at Eket before I approach the defendant for a

loan."

The building had been in existence before the loan was negotiated. The respond-

ent has been in printing industry before the loan was approved. The respondent

cannot keep the building and at the same time asked the appellant to pay for the

cost of the building. It will be inequitable. The purpose of the loan of N420,000.00

was to set up an Exercise Book Industry. Beside, there was no receipt of how this

amount of over 14335,150.60 was arrived at."

I agree entirely with him.

The claim for loss of profit was prospective in that the loss has not actually oc-

curred. In other words, the plaintiff was claiming anticipated profits. In this regard

this Court has said in

J.K. Odumosu v. A.C.B. Ltd.

(1976) 11 S.C. 55 that anticipated

profits being special damages must be established by evidence. I agree with the

Court of Appeal that there was no evidence to establish the anticipated profits in this

case.

On the authorities the plaintiff would ordinarily or normally be entitled to nominal

damages for breach of contract of the loan complained of. So the general damages

in the instant case i.e. damages arising naturally, which means in the normal course

of things, (see the first rule in

Hadley v. Baxendale

(1854) 9 Ex. 341) must be nomi-

nal. So the trial court by awarding the huge sum of N500,000.00 as general dam-

ages in this case has acted upon a wrong principle of law. So the Court of Appeal

was entitled to interfere with the award as it did. See

Zik Press Ltd. v. Ikoku

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W.A.C.A. 188 at 189.

For the above reasons and the fuller reasons given in the lead judgment of my

learned brother, I too dismiss the appellant's appeal with costs assessed in the lead

judgment.

Appeal dismissed.

PATKUN V. NIGER SHOES MANUFACTURING CO.

LTD.

PATKUN INDUSTRIES LIMITED

V

NIGER SHOES MFG. CO

. LTD.,

SUPREME COURT OF NIGERIA:

NNAMANI,



J.S.C.

UWAIS,



J.S.C.

KARIBI-WHITE,



J.S.C.

AGBAJE,



J.S.C.

WALT,



J.S.C.

9th December, 1988

APPELLANT

RESPONDENT

SUIT NO. SC 189/1987

Tort- Infringement of Registered Trade Mark. Section 3, Trade Marks Act 1965 - Passing

off - "Claim for" - "Claim of - Distraction.

Trade Marks - Infringement of Registered Trade Mark - Section and Patent 3 Trade Marks

Act, 1965.

PATKUN V. NIGER SHOES MANUFACTURING CO. LTD.

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215

Jurisdiction - Federal High Court - Section 7 ( 1)(c)(ii) Federal High Cowl Act 1973 -

Passing off actions.

Civil Procedure- Joinder of actions - Determining factor.

5

Interpretation and Construction- Words and phrases - "arising from" "causes of action"

ISSUES:

1.

What is the contemplation of the following phrases as used in paragraphs (a), (b)

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and (c) of Section 7(1) of the Federal High Court Act 1973,

"relating to";

Connected with or pertaining to; arising from":?

2.

What is the Interpretation of the following expressions as used in section 7(1) (c)

Federal High Court Act 1973; arising from" "enactment relating to".

3.

What is the

nexus

between section S.7(1)(c)(ii) Federal High Court Act 1973 and

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Section 3. Trade Marks Act 1965 in relation to the exercise of jurisdiction in respect

of an infringement of trade registered trade marks.

4.

What is a cause of action?

5.

What is the Scope of Section 3 Trade Marks Act. 1965

6.

Where there is a conflict or difference between a statutory provision and common

law which of the two Supercedes the other.

7 (a) What is the distinguishing factor between an action for a claim of passing

off and an action for a claim for passing of.

(b) Whether the Tort of passing off is a common law action which is not subject

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to any enactment, and therefore outside the jurisdiction of the Federal High

Court.

8.

Whether the Federal High Court has jurisdiction in an action for passing off arising

from the infringement of a registered trade mark.

9.

What determines a joinder of action under Order 11 rule 6 Federal High Court

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Rules 1976.

FACTS:

The appellant was the defendant while the respondent was the plaintiff in the

Federal High Court where this action was Instituted. The plaintiff a Manufacturing

Company brought the action against the defendant (another company) and three

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others on the grounds that the defendants infringed on the plaintiffs trade mark and

passed off certain goods imported by the defendants into the country as the plain-

tiffs by using the plaintiffs trade mark and passed off name on the said goods not of

the plaintiffs Manufacture or Merchandise and that the defendants caused such

goods to be sold in breach and violation of the proprietary rights of the plaintiff. The

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plaintiff claimed against the defendants jointly and severally a declaration that the

defendants are not entitled to infringe the plaintiff's trade mark and pass off goods

not of the plaintiff's Manufacture and Merchandise, an injunction amongst other

things and damages and the cost of the action. The defendants denied these aver-

ments of the action in Court on the ground that the court had no jurisdiction to en-

tertain the matter. After pleadings were exchanged the defendant brought a motion

under order 33 rules 1 and 2 of the Rules of the Federal High Court 1976 and sec-

tion 7(1)(c)(ii) of the Federal High Court Act 1973 taking a preliminary objection to

the trial of the suit for want of jurisdiction that an action for passing off is of common

Law origin and is not enshined in S.7(1) Federal High Court Act 1973 which lists mat-

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ters on which the Federal High Court can exercise jurisdiction. The learned judge

held that the court had jurisdiction to try the matter and dismissed the application.

The defendant appealed this ruling to the court of Appeal challenging

inter alia,

the

interpretation of section 7(1)(c) (ii) of the Federal High Court Act and Section 230 of

the 1979 constitution aid also Section 3 Trade Mark Act 1965. This appeal was dis-

missed.