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Jobela (Nig.) Enterprises Ltd v. Kupolati

JOBELA NIGERIA ENTERPRISES LTD.

V

TAIWO KUPOLATI

RENAISSANCE LAW PUBLISHERS LTD

NEW CENTURY LAW PUBLISHERS LTD

THE REGISTRAR OF TRADE MARKS

FEDERAL HIGH COURT

( HOLDEN AT LAGOS ) M. L. SHUAIBU J.

FHC/L/CS/1106/03

WEDNESDAY, 17TH NOVEMBER, 2004

ACTION - Discontinuance of action after proceedings have reached a certain stage - Application for leave to do so - Governing principle

ACTION - Discontinuance of action - Party seeking to discontinue action as a means of re-assessing his remedies more comprehensively or gaining liberty to resuscitate the action - Whether discretionary powers of court ought to be exercised in favour of the applicant

ACTION - Discontinuance of action - Purpose of

COURT - Discontinuance of action after proceeding have reached a certain stage - Discretionary powers of court in respect thereof - How may be exercised

LAW REPORTS - Federation Weekly Law Reports - Claim of trademark thereto - Application to discontinue action after proceedings have reached a certain stage - Attitude of court

PRACTICE AND PROCEDURE - Discontinuance of action after proceedings have reached a certain stage - Application for leave to do so - Governing principle

PRACTICE AND PROCEDURE - Discontinuance of action - Party seeking to discontinue action as a means of re-assessing his remedies more comprehensively or gaining the liberty to resuscitate the action Whether discretionary powers of court ought to be exercised in favour of the applicant

PRACTICE AND PROCEDURE - Discontinuance of action - Purpose of

Issue:

Whether the discretionary powers of the court should be exercised in favour of the applicant who seeks for leave to discontinue its action as a means of re-assessing its remedies more comprehensively or gaining the liberty to resuscitate the action.

Facts:

The plaintiff/applicant applied for an order for leave “to discontinue the suit herein against all the defendants”. It states in the supporting affidavit that it “commenced this action to restrain the defendants from breaching a memorandum of understanding entered into between it and the 1st defendant regarding the use of the trademark, Federation Weekly Law Reports.” The plaintiff/applicant further deposed that the 1st and 2nd defendants “who have been infringing the use of the trademark, ‘Federation Weekly Law Reports’ through their publication of the same name have now changed the name of their publication to ‘All Federation Weekly Law Reports’.” The plaintiff/applicant believed that “as a result of the change in the name, the plaintiff is no longer desirous of pursuing the present action as it is constituted but may need to re-assess its remedies more comprehensively.”

The defendants/respondents filed a counter-affidavit. They submitted that the motion to discontinue this case was brought with a view to overreaching the defendants. They asserted that the action was brought in bad faith in that the aim of the application, according to paragraph 3(c) of the plaintiff/applicant’s supporting affidavit, is “to re-assess the plaintiff’s remedies more comprehensively”. The defendants/respondents further established that soon after this action was commenced, the notice of preliminary objection challenging the jurisdiction of the court was filed by the defendants/respondents. The said objection was argued and the plaintiff/ applicant had responded half-way before it sought to discontinue the main action. The defendants/respondents maintained that the object of the application to discontinue was “to prevent the court from making pronouncement on the jurisdiction of the court over the subject matter of the action.”

The court considered the provisions of Order 30, rule 3(1) of the Federal High Court (Civil Procedure) Rules which provide:

“3(1) Except as provided by rule 2 of this Order, a party may not discontinue an action or counter-claim, or withdraw any particular claim made by him therein without leave of the court and the court hearing an application for the grant of the leave may order the action or counter-claim to be discontinued or any particular claim made therein to be struck out, as against any or all of the parties against whom it is brought or made on such terms as to costs, the bringing of a subsequent action or otherwise as it thinks just.”