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K. CHELLARAM AND SONS
V.
G. B. OLLIVANT LIMITED
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
31ST DAY OF JANUARY, 1944
2PLR/1944/74 (WACA)
OTHER CITATION(S)
2PLR/1944/74 (WACA)
(1944) X WACA PP. 77 – 79
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
BROOKE, J.
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BETWEEN:
K. CHELLARAM AND SONS – Plaintiffs-Appellants
AND
G. B. OLLIVANT, LIMITED – Defendants-Respondents
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REPRESENTATION
J. I. C. Taylor – for Appellants
A. L. Johnson – for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
INTELLECTUAL PROPERTY – TRADE MARK:- Order for delivery up of articles purported to be in infringement of existing trade mark – Subsequent order for return of said articles – Where partly sold by recipient – How treated
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION:- Estoppel – Cause of action arising from consent judgment of court in last proceeding in previous suit –Attitude of court thereto
JUDGMENT AND ORDER:- Consent Judgment – Party who participated and acquiesced in proceedings leading to judgment – Whether can bring action to challenge implementation of said judgment
JUDGMENT AND ORDER:- Distinction between agreement for a general scheme of consent judgment and subsequent agreement for subsequently ascertained elements of the consent agreement – Legal effect
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CASE SUMMARY
In another action brought by G. B. Ollivant, Ltd. against K. Chellaram and Sons for infringement of a trade mark. the latter delivered up as ordered 1,300 pieces of shirting, but on 6th April, 1943, a consent order was made for their return, which was not obeyed and gave rise to a motion for contempt of Court against G. B. Ollivant’s agent; but this was withdrawn on 31st May, 1943, on their undertaking to hand over 432 pieces unsold and pay over the price received for the remainder. When Chellarams were later informed of the prices they were dissatisfied and brought this action (the subject of the appeal) claiming £180 for loss sustained. The trial Judge held that G. B. Ollivant, Ltd. having implemented the consent order of 31st May, 1943, Chellarams were estopped and gave judgment in G. B. Ollivant’s favour, and Chellarams appealed.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal) that:
1. Estoppel not having been pleaded in Respondents’ Statement of Defence, the judgment could not have been grounded on estoppel.
2. As their claim for damages only arose after 31st May, 1943, when Appellants received the statement of prices, their claim could not have been barred by the agreement recorded on that date.
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MAIN JUDGMENT
The judgment of the Court was delivered by Graham Paul, C.J., (Sierra Leone):-
The Defendants-Respondents sued the Plaintiffs-Appellants in the Supreme Court claiming an injunction to restrain the Plaintiffs-Appellants from infringing a certain trade mark. In that action on 21st November, 1942 judgment was entered under which the Plaintiffs-Appellants were ordered to deliver up to the Defendants-Respondents 1,300 pieces of shirting with the infringing trade mark, and delivery was made in accordance with that judgment.
On 6th April, 1943 the said order of 21st November, 1942 was varied and the Defendants-Respondents by consent were ordered to redeliver the 1,300 pieces of shirting to the Plaintiffs-Appellants. The Defendants-Respondents failed to comply with this order and a motion was led by the Plaintiffs-Appellants to commit the Agent of the Defendants-Respondents for contempt of Court.
On that motion coming before the Court on 31st May, 1943 the following was recorded by the Court:
“Withdrawn on Plaintiffs undertaking to hand over the 432 pieces remaining unsold for obliteration of the offending marks and pay over to, Defendants the price received for the balance of the 1,900 pieces delivered, under the order dated 29th November, I942.
W. B. Lloyd
Judge”.
Thereafter the Defendants-Respondents delivered to the Plaintiffs-Appellants the 432 pieces of shirting remaining unsold and paid to the Plaintiffs-Appellants the amount which they had received for the balance of the pieces of shirting, thereby implementing their part of the Court-recorded agreement in respect of which the Plaintiffs-Appellants withdrew their motion to commit.
The Plaintiffs-Appellants however, when they were later informed of the prices at which the Defendants-Respondents had sold the said balance of the pieces of shirting were dissatisfied with such prices and after some correspondence they brought the action which is the subject of the present appeal. In this action the Plaintiffs-Appellants claimed that they had suffered damage by the Defendants-Respondents converting to their own use and wrongfully depriving the Plaintiffs-Appellants of their goods, i.e. the 868 pieces of shirting. The Plaintiffs-Appellants claimed the sum of £180 being the loss sustained by them as a direct consequence of the wrongful sale by the Defendants-Respondents.
The learned Judge in the Court below has held that by reason of the implementing by the Defendants-Respondents of the Court recorded agreement of 31st May, 1943 the Plaintiffs-Appellants are estopped from bringing the present action and has on that ground entered judgment for the Defendants-Respondents. From that judgment the Plaintiffs have appealed to this Court.
For two reasons we are unable to agree with the judgment of the Court below. In the first place where Defendants wish to rely on estoppel they must plead it and there was no such plea in the Statement of Defence in this case. In the second place the claim in the present action was not before the Court in any form in the previous suit. The Appellants filed a motion in the previous suit for the committal of the Agent of the Respondents for contempt but withdrew that motion on certain conditions. The implementing of these conditions would, no doubt, operate to bar any subsequent motion to commit the Respondents’ Agent for contempt on the same grounds but it cannot possibly be regarded as a bar to the present claim which is an entirely different matter and has never been the subject of judicial investigation or decision between the parties.
The present claim is one for damages, the basis of it being that instead of delivering the 1,300 pieces to the Appellants as ordered by the Court the Respondents sold 868 of them at prices which represent £180 less than the Appellants would have realized if the said 868 pieces had been delivered in accordance with the order of the Court. That claim was not, and could not be, made until the Appellants had received from the Respondents a statement showing at what prices they had sold; and that statement was not received by the Appellants until after 31st May, 1943, which is the date of the Court-recorded agreement which the learned Judge has found to operate as estoppel to bar this claim.
For these reasons, the judgment of the Court below is set aside including the order as to costs and any costs paid thereunder are to be refunded. The case is sent back to the Court below to take evidence upon and decide the issues raised on the pleadings on their merits. The Appellants are entitled to costs in this Court assessed at 35 guineas and the costs in the Court below are to be costs in the cause.
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