A Federal High Court in Lagos will on Dec. 1 to rule on an application seeking to strike out a contempt charge against the Nigerian Bottling Company (NBC).
Justice Ambrose Allagoa gave the date after hearing arguments by counsel to the plaintiff (Rite Foods) and that of the defendants, NBC and its managing director.
Rite Foods initiated the contempt proceedings over alleged infringement on the trademark of its energy drinks `Fearless’.
The substantive passing-off suit was filed before Justice Chukwujekwu Aneke in March 2021. It is marked: FHC/L/CS/92/2021.
The plaintiff alleged that the defendants infringed on its trademark with NBC’s energy drink `Predator’, by adopting lion head in resemblance to the trademark on its Fearless energy drink.
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The plaintiff claimed that it had been trading with the lion image since 2017 before the NBC’s Predator drink came into the market in 2020.
Rite Foods, therefore, sought and obtained an exparte order restraining the defendants from passing off on its energy drink in a manner capable of infringing on its brand.
NBC has filed an appeal against the suit and applied for a stay of proceedings before Aneke pending the outcome of the appeal.
Worried by alleged non-compliance with the order, the plaintiff initiated a contempt suit before Allagoa against the defendants.
Justice Allagoa had set Nov. 15 for hearing of the motion.
When the case came up on Monday, Mr Muyiwa Ogungbero announced appearance for Rite Foods.
Mr Ngo-Martins Okoma and Mr Oluseye Opasanya (SAN) appeared for NBC and its managing director – the first and second defendants – respectively.
Okoma moved for regularisation of his processes which was granted by the court.
He told the court that his substantive motion, dated Oct. 15, sought an interlocutory order setting aside the committal proceedings instituted by the plaintiff.
Okoma raised a question before the court as to whether a court could safely punish for contempt with regard to an order that had been discharged.
He argued that once an order had been discharged, the court would not punish for contempt based on that order.
Counsel to the second defendant, Opasanaya, told the court that his client was not a party to the suit.
He submitted that the contempt suit was initiated by the plaintiff for reasons best known to it, saying that he had filed an application seeking to strike out the suit.
“The Nigerian authorities are clear that the court will always have the power to punish for contempt; so, our application is not to prevent the court from exercising its powers if it finds that there was a violation.
“Our case is that the possibility does not even exist; no order was made by this court against my client.
“The records have not shown that the court was asked to lift the veil of incorporation.
“It is not at the discretion of the plaintiff to decide who to punish,” he said.
Opasanya noted that Aneke made the order on Feb. 9, while the order was served on Feb. 15, adding that the defendant immediately filed an application to discharge the order at the appellate court.
He argued that once there was an application for stay of an order during the pendency of an issue, there should not be a contempt suit.
“An application to set aside an exparte order operates as a suspension of that order,” he said.
Opasanya also argued that an application for a stay of an order was aimed to avoid damages that might be occasioned.
He urged the court to grant his application and strike out the contempt suit in its entirety.
Responding, the plaintiff’s counsel, Ogungbero, argued that flouting an existing order of a court does not redeem a contemnor from punishment.
According to him, a contempt suit is quasi criminal in nature; therefore, once begun, the purported veil of incorporation is automatically lifted.
He urged the court to so hold.
The judge will rule on the applications on Dec. 1. (NAN)