|
Patent -
Trade name Usage - Exclusive
right - Financial loss -
Broadcasting of advertisement
- Interim injunction - exercise
of judicial discretion - Whether
or not broadcasting of the
advertisement on the airwaves of
the was illegal - Whether or not
the defendant merely provides
subscriber management services
for subscribers.-
HEADNOTES
The plaintiff
a pharmaceutical company
incorporated under the laws of
Ghana alleged that it had
exclusive right to manufacture,
distribute and deal in the
product called “Pro Cold” for
cure of cold and sinuses, a
Nigeria firm known as Orange
Drugs Limited attempted to
invade the Ghanaian market with
its brand of “Pro Cold” which
was successfully resisted by the
plaintiff. The Nigeria firm
thereafter resorted to using the
defendant’s electronic
broadcasting on a gigantic scale
by collusively airing and
broadcasting advertisement on
“Pro Cold” at prime times
before, during and after English
Premiership Leagues games which
enjoy a truly wide coverage and
audience. This conduct of the
defendant has resulted in huge
financial loss to the plaintiff
which runs into millions of
United States Dollars. All
efforts to stop the alleged
illegal conduct of the defendant
prove futile. The plaintiff
issued a writ of summons
together with a statement of
claim and had the two processes
served on the defendant , the
defendant entered conditional
appearance. and filed an
affidavit in answer to oppose
the application for the
interlocutory injunction,
stoutly contending that it
merely provides subscriber
management services for
MultiChoice Africa’s DStv
subscribers.
HELD
We think that
the refusal of the trial court
to make an order for undertaking
should not have been a ground
for setting aside the
interlocutory injunction granted
by the trial judge. The order
for undertaking is usually a
consequential order granted by
trial courts upon grant of
interlocutory injunctions. We
do not consider this error on
the part of the Court of Appeal
to be a ground to set aside a
well written ruling which took
all the circumstances of the
case into consideration. The
other grounds of appeal argued
are indeed of minor
consequences. On the whole we
find that the appeal has no
merits and we accordingly
proceed to dismiss same.
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) Rules 2004 CI
47.
CASES
REFERRED TO IN JUDGMENT
AJETEY
AGBOSU v E. N. KOTEY [2006] 2
MLRG III,
OWUSU v
OWUSU-ANSAH [2007-08] SCGLR 870
BLUNT v BLUNT
[1943] AC 517,
BALLMOOS v
MENSAH [1984-86] 1 GLR 724
AMERICAN
CYANMID CO. v ETHICON Ltd.
[1975] AC 396
NATIONAL
COMMERCIAL BANK JAMAICA LTD. v
OLINT CORPORATION LTD [2009] 1
WLR 1405
OWUSU v
OWUSU-ANSAH [2007-2008] SCGLR
870
CRENSTIL v
CRENSTIL [1962] IGLR 171 SC
BLUNT v BLUNT
[1948] AC 517, HL.
BOOKS
REFERRED TO IN JUDGMENT
Atkin’s
Encyclopedia of Court Forms in
Civil Proceedings
Practical
Approach to Civil Procedure (16th
edition), Professor Stuart Sime
DELIVERING THE LEADING
JUDGMENT
ANIN-YEBOAH
JSC:
COUNSEL
KWASI AFRIFA
ESQ. FOR THE PLAINTIFF
/RESPONDENT/APPELLANT.
ANTHONY
FORSON JNR. ESQ. WITH HIM KWESI
COLEMAN FOR THE DEFENDANT/
APPELLANT/ RESPONDENT
ANIN-YEBOAH
JSC:
The facts of
this interlocutory appeal fall
within a narrow compass and
appear to be uncontroverted.
The
plaintiff/respondent/appellant
herein (who shall be referred to
in this appeal simply as the
plaintiff) commenced an action
at the High Court (Commercial
Division), Kumasi against the
defendant/appellant/respondent
herein who (shall be referred to
simply as the defendant).
The plaintiff
a pharmaceutical company
incorporated under the laws of
Ghana alleged that it had
exclusive right to manufacture,
distribute and deal in the
product called “Pro Cold” for
cure of cold and sinuses. The
plaintiff alleges that it had
registered the product at the
Food and Drugs Board to entitle
it as the exclusive manufacturer
and distributor. According to
the plaintiff, a Nigeria firm
known as Orange Drugs Limited
attempted to invade the Ghanaian
market with its brand of “Pro
Cold” which was successfully
resisted by the plaintiff. The
Nigeria firm thereafter resorted
to using the defendant’s
electronic broadcasting on a
gigantic scale by collusively
airing and broadcasting
advertisement on “Pro Cold” at
prime times before, during and
after English Premiership
Leagues games which enjoy a
truly wide coverage and
audience.
According to
the plaintiff the “Pro Cold”
which is not made or
manufactured by the plaintiff
has found its way illegally into
the Ghanaian market. This
conduct of the defendant has
resulted in huge financial loss
to the plaintiff which runs into
millions of United States
Dollars. All efforts to stop the
alleged illegal conduct of the
defendant prove futile.
The plaintiff
on 7/12/2010 issued a writ of
summons together with a
statement of claim and had the
two processes served on the
defendant. On the writ, the
plaintiff claimed several
declaratory reliefs inviting the
High Court to declare that the
broadcasting of the
advertisement of Pro Cold on the
airwaves of the respondent was
illegal leading to consequential
loss of income, and an Order of
injunction to restrain the
defendant and its agents,
assigns and privies from further
broadcasting the advert.
On 14/12/2010
the plaintiff filed a motion for
interlocutory injunction against
the defendant praying the trial
court for an order “compelling
the defendant, its agents,
assigns, representatives,
workmen and technicians as well
as technical officers howsoever
described to stop the
broadcasting of the
advertisement on “Pro Cold”
pending the final determination
of the case.
The plaintiff
annexed several exhibits to
bolster its case to convince the
trial court that several demands
made to the defendants to desist
from broadcasting the advert had
proved futile.
On the very
day that the application for
interlocutory injunction was
filed, the defendant entered
conditional appearance. It
appears from the record that no
application was subsequently
filed to either set-aside the
writ or the service thereof.
However, the defendant filed an
affidavit in answer to oppose
the application for the
interlocutory injunction,
stoutly contending that it
merely provides subscriber
management services for
MultiChoice Africa’s DStv
subscribers. For a more detailed
record the pertinent depositions
in the affidavit of the
defendant is reproduced ad
longum:
6.
The defendant says that all that
MultiChoice (Gh) Ltd. does is to
provide subscriber management
services for
MultiChoice Africa’s DStv
subscribers, which entails
subscription fee collection
services, marketing
and sales, technical and
installation support and the
operation of a national
call centre – so it has no
relationship whatsoever with
either the Nigerian
Company which manufactures
the offending product neither is
it in collusion with it
to destroy plaintiff’s business.
7.
The defendant further maintain
that it has no relationship with
Supersport where the advert
appears and thus
cannot be held liable even if
the said advert were
offensive to the plaintiff.
8.
The defendant further says in
answer to the allegations raised
by the plaintiff that it has no
interest, commercial or
otherwise, in any pharmaceutical
product nor in its distribution
and thus the prayer to
this honourable court for an
order “directing the defendant
to take all necessary steps to
withdraw the illicit product
unleashed on the Ghanaian
market pending the hearing and
final determination of the
suit…” is not only misguided but
also ill-advised.”
The
application was moved before the
trial court on 21/01/2011 and
same was granted in a detailed
ruling delivered on 27/01/2011.
The court granted the
interlocutory injunction as
prayed and made an order as
follows:-
“The defendant shall not
re-transmit Supersport channel
203 via Multichocie Africa
DStv service until the
infringing advertisement on Pro
Cold 4 Flu Tablet is
blocked pending the final
determination of this suit. The
defendant shall file its
statement of defence within 14
days from today”.
The defendant filed a statement
of defence within its time
ordered and proceeded to
lodge an interlocutory appeal on
11/2/2011 at the Court of
Appeal, Kumasi on several
grounds to set aside the order
granting the interlocutory
injunction against it.
The Court of
Appeal allowed the appeal on
30/03/2012 and vacated the order
of interlocutory injunction
granted by the trial court. On
the same day, the plaintiff
lodged this appeal to this court
praying this court to set aside
the ruling of the Court of
Appeal and restore the
injunction granted by the trial
Court.”
The plaintiff has canvassed
before us several grounds of
appeal as follows:
a.
The Honourable Court erred by
interfering with the proper
exercise of the trial court’s
discretion.
b.
The Honourable court erred by
making findings of fact on
affidavit evidence.
c.
The Honourable court erred by
determining the issues for trial
which is the province of the
trial court in interlocutory
appeal.
d.
The judgment is against the
weight of evidence.
The first ground of appeal which
perhaps took the greater part of
the appellant’s statement of
case, attacked the interference
by the Court of Appeal in the
exercise of discretion by the
trial court. Learned counsel
contended that since the grant
or refusal of interlocutory
injunction is discretionary the
exercise of the discretion
vested in the trial court ought
not to be interfered with by the
appellate court in the
circumstances as it occurred in
this case before us. He argued
that since the learned trial
judge fairly exercised her
discretion it was not within the
powers of the Court of Appeal in
the exercise of its appellate
jurisdiction to set aside the
injunction granted by the trial
judge. He therefore submitted
that the Court of Appeal was in
error in setting aside the
interlocutory injunction granted
by the learned trial judge. In
support of the above proposition
of law, learned counsel for the
plaintiff indeed went to town as
he cited virtually all the
reported authorities on the
exercise of judicial discretion
by trial courts notably:
AJETEY AGBOSU v E. N.
KOTEY [2006] 2 MLRG III,
OWUSU v OWUSU-ANSAH
[2007-08] SCGLR 870 BLUNT
v BLUNT [1943] AC 517, BALLMOOS
v MENSAH [1984-86] 1 GLR
724 and others not worth
repeating.
The Court of Appeal was indeed
mindful of the interference of
the discretion of the trial
judge. The court was of the
considered opinion that crucial
issues which ought to have been
resolved by the learned trial
judge were on record ignored.
This was how the Court of Appeal
delivered itself per Korbieh JA
as follows:
“Part of the appellant’s case in
opposing the motion for the
interim injunction was that it
was not a proper party to the
suit. There were two main
reasons advanced by the
appellant to support its stance
that it was not a proper party
to the suit. The first was that
it has no commercial or any
other interest in the drugs that
was at the centre of the
respondent’s complaint and has
never had anything to do with
its importation into this
country. The second was that it
neither broadcasts nor
retransmits and was therefore
not the entity responsible for
broadcasting the offending
advertisement”.
The Court of Appeal was of the
opinion that the learned trial
court in her judgment held that
the defendant was a proper party
to be sued but did so in error
without giving adequate
consideration to the defendant’s
case.
It must be pointed out that in
virtually all interlocutory
applications that come before
our courts, evidence in support
would be in the nature of
affidavit evidence as required
under Order 19 Rule 4 of the
High Court (Civil Procedure)
Rules 2004 CI 47. In the normal
course of determining
interlocutory applications the
courts would rely on the
affidavits filed together with
exhibits, if any. However, if
any of the parties to the
application is of the opinion
that certain vital issues appear
unresolved, a party may with the
leave of the court, orally apply
to the court to cross-examine a
deponent to the affidavit to
assist the court in resolving
the crucial issue, the
determination of which may have
a decisive effect on the
determination of the
application. This practice is
supported by a passage from
Atkin’s Encyclopedia of Court
Forms in Civil Proceedings page
37 of the second edition
which states the practice
succinctly as follows:
“In the Queen’s Bench Division
an application for leave to
cross-examine a deponent in
interlocutory proceedings is
made at the hearing of those
proceedings. For example, if
on the hearing of an application
for an interlocutory injunction,
a party wished to cross-examine
a deponent on his affidavit the
application (in the absence of
consent) would be made there and
there to the judge. If the
judge make the order sought and
the deponent was not present,
the judge would adjourn the
matter for him to attend; if the
deponent was present the
cross-examination would proceed
at once”.
A similar passage from Civil
Procedure in Nigeria by
Fedilis Nwadialo (second
edition) at page 558 supports
the above quotation from Atkin’s
book as follows:
“The need for
oral evidence does not arise
frequently and when it does it
is for cross-examination of a
deponent to an affidavit.
Oral evidence is, however,
imperative, when there is
conflict on material facts as
deposed to in an affidavit on
the other hand, and in the
counter affidavit, on the other
hand. Without resolving such a
conflict the court cannot make a
finding on that material issue
of fact. The only way to resolve
the conflict is by the court
taking oral evidence of the
deponents and witnesses on the
material issues of fact. The
deponent to the affidavit and
the deponent to the counter
affidavit are each
cross-examined by the respective
opposite party. The court has a
duty to receive oral evidence in
the case of such conflict and no
party need make any application
for that purpose”
From the
ruling of the learned Judge, it
does appear that this crucial
issue of total disclaimer on the
part of the defendant was not
adequately considered. The
depositions in the affidavit in
answer to the application stated
supra, in this delivery was of
vital importance to the
defendant’s case. As that stage
of the proceedings the defendant
had not filed its statement of
defence, and the only process on
record which the learned trial
Judge was bound to consider on
the part of the defendant was
the affidavit filed by the
defendant. The court was thus
faced with a lack of certainty
on a very crucial issue.
We are of the
considered opinion that if
Counsel for the plaintiff was
doubting the crucial depositions
in paragraphs 6, 7 and 8 of the
defendants’ affidavit he could
have sought leave of the trial
court to cross-examine the
deponent. Even though this
procedure is sparingly used,
this case offered a classic
example whereby Counsel ought to
have sought the leave of the
learned trial Judge to resolve
the issue raised by the
defendant in the affidavit filed
by cross-examining the deponent.
This our
position does not mean that the
Plaintiff who sought the
interlocutory injunction was to
establish a prima facie case on
the merits. In his invaluable
book: A Practical Approach to
Civil Procedure (16th
edition), Professor Stuart
Sime at page 455 in discussing
the oft-quoted case of
AMERICAN CYANMID CO. v
ETHICON Ltd. [1975] AC 396
said as follows:-
“The court
needs to be satisfied only that
there is a serious question to
be tried on the merits. The
result is that the court is
required to investigate the
merits to a limited extent only.
All that needs to be shown is
that theclaimants’ cause of
action has substance and
reality.”
Our esteemed
sister, Adinyirah JSC in
OWUSU v OWUSU-ANSAH supra
offered enough guidance to trial
courts in determining
interlocutory applications at
page 875 as follows:
“While
agreeing that in an
interlocutory application for an
interim relief, the court ought
to refrain from expressing an
opinion on the merits of the
case before the hearing, we
are of the view that this does
not absolve the trial court from
considering the material before
it in order to guide it to
either grant or refuse the
request before the court.
The guiding principle in such
applications is, whether an
applicant has, by his pleadings
and affidavit established a
legal or equitable right, which
has to be protected by
maintaining the status quo until
the final determination of the
action on its merits.”
If from the
record there is no serious
question to be tried on the
substantive claim, the reliefs
may be refused. See NATIONAL
COMMERCIAL BANK JAMAICA LTD.
v OLINT CORPORATION LTD
[2009] 1 WLR 1405 and opinion
expressed by Lord Hoffmann.
The learned
justices of the Court of Appeal
were of the opinion that the
defence in the affidavit raised
by the defendant was very
formidable but was not
adequately considered by the
learned trial judge. The Court
of Appeal in the exercise of its
appellate jurisdiction proceeded
to set aside the order of
interlocutory injunction. This,
has attracted severe criticisms
from learned counsel for the
appellant who has urged that
what the Court Appeal did was
erroneous exercise of appellate
jurisdiction in matters dealing
with discretionary powers of a
trial court. It has never been
the proposition of law that a
discretion exercised by a trial
court cannot be set aside on
appeal. We think that the
proposition of law which this
court has kept faith is the
recent one expressed in OWUSU
v OWUSU-ANSAH [2007-2008]
SCGLR 870 where it was held as
follows:
“an appeal
against the exercise of the
court’s discretion may succeed
on the ground that the
discretion was exercised on
wrong or inadequate materials if
it can be shown that the court
cited under a misapprehension of
fact in that it either gave
weight to irrelevant or unproved
matters or omitted to take
relevant matters into account.
In the instance case, the trial
High Court acted on a
misapprehension of the pleadings
and affidavit evidence before it
and thereby exercised its
discretion wrongly in favour of
the co-defendant-appellant”
This court
has demonstrated remarkable
consistency in applying the
above principle of law which has
its genesis from CRENSTIL
v CRENSTIL [1962] IGLR
171 SC which relied on BLUNT
v BLUNT [1948] AC 517,
HL.
We are of the
considered opinion that the
Court of Appeal rightly
interfered with the discretion
exercised by the trial High
Court as there is clear
misapprehension of the facts on
the part of the trial judge.
Another
ground which was argued related
to the Court of Appeal’s
delivery on the giving of
undertakings by trial court’s in
interlocutory injunction
applications. We think that the
refusal of the trial court to
make an order for undertaking
should not have been a ground
for setting aside the
interlocutory injunction granted
by the trial judge. The order
for undertaking is usually a
consequential order granted by
trial courts upon grant of
interlocutory injunctions. We
do not consider this error on
the part of the Court of Appeal
to be a ground to set aside a
well written ruling which took
all the circumstances of the
case into consideration. The
other grounds of appeal argued
are indeed of minor
consequences.
On the whole
we find that the appeal has no
merits and we accordingly
proceed to dismiss same.
On the whole
we find that the appeal has no
merits and we accordingly
proceed to dismiss same.
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) S. O. A.
ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) V.
AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
KWASI AFRIFA
ESQ. FOR THE PLAINTIFF
/RESPONDENT/APPELLANT.
ANTHONY
FORSON JNR. ESQ. WITH HIM KWESI
COLEMAN FOR THE
DEFENDANT/APPELLANT/RESPONDENT |
