An aggrieved party must demonstrate special circumstances to obtain a stay of execution in trademark disputes

MOORE ASSOCIATES LIMITED & ANOR v. ST. MICHAEL PHARMACEUTICAL LIMITED & ANOR
SUPREME COURT OF NIGERIA
(MARY PETER-ODILI; JOHN OKORO; ABDU ABOKI; MUSA SAULAWA; TIJANI ABUBAKAR)

BACKGROUND FACTS

Exphar S. A. & St. Michael Pharmaceutical Ltd. (Respondents) filed a suit against Moore Associates Limited & Moore Onyekaba (Appellants) at the Federal High Court (trial court) claiming a perpetual injunction to restrain the Appellant from passing off or attempting to pass off a preparation for the treatment of malaria, which is not the Respondents’ manufacture or merchandise, as the goods of the Respondents’ by the use of the Respondents’ Trademark “MALOXINE”; Importing, manufacturing, selling or offering for sale or supplying any preparation for the treatment of malaria with any package so closely resembling the Respondents’ Trade Mark which had been applied for, accepted and published for registration in class 5; Infringing the copyright in the artistic work of the Respondents’ Trade Mark “MALOXINE” and its Get-up Logo and Package Design, among other reliefs. Both parties called evidence at the trial court and at the close of their respective cases, the trial court delivered judgment in favour of the Respondents. Dissatisfied with the judgment, the Appellants filed an appeal against it at the Court of Appeal (lower court) and also filed a motion on notice seeking stay of execution of the monetary judgment and the injunctive relief obtained. The lower court considered arguments for and against the grant of the stay of execution and refused the application for failure of the Appellants to show special circumstances why such stay should be granted.

Further dissatisfied with the lower court’s decision, the Appellants appealed to the Supreme Court. Counsel to the Respondents did not file any brief in the appeal. One of the issues raised for determination by the Appellants is – “Whether in the light of the materials placed before the lower court and all the circumstances of this case, the lower court should not have granted the appellant’s application for stay of execution of the judgment”.

ARGUMENTS

The Appellants’ counsel on this issue argued that an unsuccessful litigant who is applying for a stay of execution must show special circumstances. That the onus is on the party applying for a stay pending appeal to satisfy the court that in the peculiar circumstances of his case, a refusal of stay would be unjust and inequitable. He further stated that what constitutes exceptional or special circumstances to warrant a stay may vary from case to case and that each case should be decided based on its peculiar circumstances. According to him one of the important considerations in an application for stay of execution pending appeal is the preservation of the res and maintenance of status quo. In conclusion, the Appellants’ counsel submitted that the exercise of discretion of the court to grant a stay of execution must be based on fact: placed before the court vis-à-vis the competing rights of the parties and that the points of law raised by the Appellants in the application at the lower court constitute substantial and arguable grounds in respect of which the court ought to have exercised its discretion to grant a stay of execution.

DECISION OF THE COURT

In resolving this issue, the court held that:
The courts will not make it a habit of depriving a successful party, the fruits of his victory unless very special circumstances are advanced to justify a stay of execution. Special circumstances for grant of stay of execution are constituted by consideration of some circumstances that may unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon the court, especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular, even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo. In the instant case, from the depositions of the Appellants, it could not be said that there was any res in danger of destruction or that a situation of helplessness would be foisted on the appellate court or that if the Appellants succeeded in the Court of Appeal, there could be no return to status quo. None of the issues raised by the appellants qualified as a special or exceptional circumstance which could have justified the Court of Appeal in granting a stay of execution. The appellants have not discharged the onus that in the peculiar circumstances of this case, a refusal of a stay would be unjust and inequitable.
Issue resolved in favour of the Respondents.

John Duru, Esq. for the Appellants
Ekpe Asuquo, Esq. for the Respondents

This summary is fully reported at (2023) 8 CLRN in association with ALP NG & Co.
See www.clrndirect.com ; www.alp.company