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JUDGMENT
TWUMASI, JA
The central issue in
this appeal as indeed it was rightly found by the
learned trial judge, is whether the respondent
[defendant at the court below] is passing off its
electric fans as those of the appellant, plaintiff in
the said court, by similarity of the get-up of the
disputed fans.
The plaintiff’s case
was that it had for a considerable length of time been
selling a type of electric fan with the name “Binatone”
but that quite recently the respondent has been dealing
in a fan named “MIKACHI” but the get-up is similar to
the appellant’s fan. The latter contends that this
conduct on the part of the former is injurious to its
trade or business and the appellant claims damages for
the fort of passing off its fans.
At page 659 of the 12th
Edition of Salmond On Torts, the learned author says:
“This gist of the
conception of passing off is that the goods are in
effect telling a falsehood about themselves, are saying
something about themselves which is calculated to
mislead. The law on this matter is designed to protect
traders against that form of unfair competition which
consists in acquiring for oneself, by means of false or
misleading devices, the benefit of the reputation
already achieved by rival traders.”
The learned trial judge
dismissed the appellant’s claim and upheld the
counterclaim of the respondent and award it damages
arising from the loss of profits in business occasioned
by an injunction order obtained by the appellant against
the respondent at the initial stages of the institution
of the action.
The appellant’s
Counsel’s main ground of appeal is that a substantial
miscarriage of justice has been occasioned by the
learned trial judge’s failure to inspect, examine, look
at and compare the get-up in the fans exhibited at the
court to detect properly the similarities with a view to
determining whether there was a case, of passing off. In
his statement of case the appellant’s counsel stated at
p.3 thereof:—
“The
plaintiff/appellant will at the hearing of this appeal
respectfully invite the court to inspect and examine the
exhibits in the case.”
Council further
submitted the following at p.4 of his statement of
case:—
“Comparison of the fans
reveals similarity of the get-up ranging from colour to
inscriptions, raising strong likelihood of confusion [in
the minds of the public.] [Emphasis mine]”
It is my view that
since the appellant tendered in evidence the
controversial fans, the learned trial judge must be
deemed to have had a look at them.
In fact, reading
through the judgment, it is quite clear that she did.
The learned trial judge, if I understood her judgment
very well, had the get-up of the fans tendered at the
back of her mind when she wrote her judgment. What is
clearly noticeable in the judgment is that she took into
serious consideration the character and level of
intelligence of the ordinary Ghanaian consumer looking
for a fan to buy and using this as a guidepost, she then
set herself the question of whether such a customer
would be deceived in his or her mind as to the identity
of a fan sold by the appellant and another sold by the
respondent and using what she thought to be the
conspicuous distinctive features in the two fans
“Binatone” and “Mikachi” arrived at the conclusion that
there was no such evidence of the likelihood of
deception proved by the appellant. Looking at the
evidence adduced at the trial, I was unable to fault her
approach and the conclusion she reached. The learned
trial judge hit the nail right on the head when she
stated in her judgment at page 97 thus:—
“for in our part of the
world where a greater majority of our people know next
to nothing about warranties, a party buying a standing
fan generally goes by the brand name the assembled fans
are then tested and taken away in that manner.”
Yet another
unimpeachable and persuasive portion of the judgment
must be quoted and it is at p. 98 thus:—
“The plaintiff and the
defendant deal in different and distinctive brand of
goods Binatone and Mikachi, no shred of evidence was led
as to the defendants appropriating the plaintiff’s
goodwill. It is evident that the plaintiff has
established its reputation and good will in Binatone and
in the absence of evidence that the defendant deals in
those products, the defendant cannot be said to have
passed off the plaintiff’s products.”
Throughout the
statement of case submitted on behalf of the appellant
no portion of it talks of the oral testimonies of the
appellant and to its witnesses some of whom were
subjected to scathing cross-examination as exemplied
amply by the address filed on behalf of the defendant as
affording satisfactory proof of the respondent
appropriating the appellant’s goodwill.
The appellant now
invites this court to inspect the fans or exhibits
tendered at the court below to form our own view.
I am afraid this court
would not accede to this invitation, simply because it
is not a trial court. What counsel for the appellant
wants this court to do in effect is to move to the locus
in quo and make primary findings. This function is by
law given to the trier of fact, not this court: See
section 68 of the Courts Act 1993 [Act 459].
There is yet another
important aspect of the evidence which the learned trial
judge considered and which appeals to me as very vital.
The learned trial judge made a positive finding which
cannot be disputed that because the two companies
litigating admitted it, that the fans in both cases are
not manufactured according to the specifications of both
the appellant and the respondent companies. She then
stated the law as enunciated in the English case of AB
Manus v. R. J. Fullwood & Bland Ltd. 1949 ch 208 and
held that it did not lie in the mouth of any of the two
companies to complain except where it could be proved
that the importer [any of the two] had been perceived as
the true source of the goods, that is to say, as the
manufacturers. In the instant case, there was no such
evidence before the court. On the totality of the
evidence I have not been persuaded to reverse the
decision of the trial court. It follows that the appeal
ought to and it is accordingly dismissed. Costs of ¢1
million for respondent.
P. K. TWUMASI
JUSTICE OF APPEAL COURT
OMARI-SASU JA
I agree
J. A. OSEI JA
I also agree
OMARI –SASU
JUSTICE OF APPEAL COURT
J. A. OSEI
JUSTICE OF APPEAL COURT |
