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Newsletter Date 31.01.2010 DALLEY

G.R.F.

THE APPRENTICE AFRICA EXPERIENCE Inside this issue:

The Apprentice 1 ‐ 2 In suit number FHC/L/CS/22/08 filed, on 10th January 2008, by one Jude Olotu Africa Experience any of them howsoever from doing the follow‐ against Platinum Habib Bank Plc, Storm ing acts or any of them namely, Malcolm Cohen of 3 ‐ 4 Vision Limited and Mr Biodun Shobanjo the Stoy Hayward a. Infringing or assisting any other person to Plaintiff sought, before the Federal High infringe the Plaintiff’s copyright in the theme Losses battle Court of (Lagos Division), the fol‐ against Afribank and concept of “The Intern” by adopting an lowing reliefs: Establishing a for‐ 4 identical or similar theme and concept and or eign Airline in Ni‐ “1. A declaration that the theme and con‐ any other feature of “the Intern” through its geria—The General cept of “The Apprentice Africa” being spon‐ Requirements. “The Apprentice Africa” show and programme sored and promoted by the Defendants is so and or “The Intern” television reality show pro‐ Announcements. 5 similar in theme and concept to “The In‐ duced in connection therewith, without the tern” television reality show also sponsored/ consent of the Plaintiff and on the terms pre‐ promoted by the 1st Defendant that it con‐ scribed by law. stitutes an infringement of the theme and b. Passing off “The Apprentice Africa” show and concept of the Plaintiff’s copyright over the or programme as if it is the Plaintiff’s “The In‐ trademark “The Intern”. tern” which has the concept of recognition and 2. A declaration that the them and concept selection of intellectual/business/corporate of “The Apprentice Africa” is a breach of the prowess via contest/elimination by competition. trademark “The Intern” applied for by the c. Advertising, sponsoring or otherwise promot‐ Plaintiff and accepted in Nigeria under No. ing by any medium whatsoever the “The Ap‐ TP172746 in class 28 pursuant to which said prentice Africa” or any other show, cinemato‐ trademark the television reality show “The graphic broadcast etc. in any way identical or G.R.F. Intern” was produced. DALLEY & similar in theme and concept and or any other 3. A declaration that the conduct of the De‐ PARTNERS feature to “The Intern” television reality show fendants with regards to their sponsorship/ produced in connection therewith. ADVISES ALI‐ promotion of “The Apprentice Africa” whilst TALIA—LINEE d. Showing, broadcasting and or promoting the 1st Defendant is yet to reconcile issues AEREE ITAL‐ “The Apprentice Africa”. with the Plaintiff regarding its sponsorship IANE ON DE‐ of “The Intern” amounts to breach of trust e. An Order directing the 1st Defendant to forth‐ REGISTERING and or is tainted with fraud. with render an account to the Plaintiff of its ITS LOCAL sponsorship, management and or dealings relat‐ BRANCH IN 4. A perpetual injunction restraining the ing to “The Intern” and “The Apprentice Africa” NIGERIA Defendants, their servants, agents, assigns, with a view towards ascertaining sums due to representatives, directors or privies and or NEWS LETTER Page 2

THE APPRENTICE AFRICA EXPERIENCE the Plaintiff. 1. The Federal High Court lacks the jurisdiction to entertain the issues in dispute in this suit on grounds that by virtue of f. The sum of =N=500, 000, 000.00 (Five Hundred Million sections 3 and 5 of Nigeria’s Trade Mark Act the Honourable Naira) as general damages against the Defendants for in‐ Courts power to entertain the key claims in the suit were fringing the copyright in the theme and concept of the ousted. Under the said sections particularly section 3 the Plaintiff’s trademark “The Intern” and “The Intern” television plaintiff was not entitled to seek reliefs for infringement reality show produced in connection therewith. where he lacked the proprietorship of a registered Trade g. The sum of =N=5000, 000.00 (Five Million Naira) being Mark. Under the statute the Courts are forbidden to enter‐ costs of this suit. tain claims for infringement in respect of unregistered Trade In addition, the Plaintiff’s counsel filed the following some‐ Marks. what frivolous applications: 2. The Plaintiff lacked the requisite locus standi to institute 1. Motion on Notice dated 8th January, 2008 seeking an Or‐ this suit. Further to the arguments canvassed in paragraph 1 der of injunction prohibiting the Defendants from advertis‐ above the plaintiff was never at any time the owner of the ing, airing, sponsoring or promoting “The Apprentice Af‐ Trade Mark “Apprentice” or “Apprentice Africa” nor was he rica”. the owner of the copyright in the show. Therefore his claim cannot be said to have disclosed any reasonable cause of 2. Motion on Notice dated 28th February, 2008 seeking the action. leave of Court to amend the statement of claim. 3. There is no privity of contract between the Plaintiff and 3. Motion on Notice dated 28th February, 2008 for the com‐ the Defendants as the key subject matter in the suit is based mittal of the Managing Director of Platinum Habib Bank, on a Memorandum of Understanding between the Plaintiff Storm Vision Limited and Mr Biodun Shobanjo alleging that and one Ofem Ekapong Ofem to which the Defendants were there has been a disobedience of an Order of Court. never parties, in any way. 4. Motion on Notice dated 14th March, 2008 for an Order In light of the defendants application the plaintiff attempted joining the Nigerian Television Authority (NTA), STV and to overreach by amending his statement of defence. The Multi Choice Nigeria Limited as Defendants to the suit. Court refused to amend and thereafter the plaintiff filed a Storm Vision Limited (the second defendant) had sometime Notice of Discontinuance dated 3rd August, 2009 by which in 2007 acquired the rights to air Nigeria’s version of the ap‐ he withdrew all his claims against the Defendants and by prentice africa , in Nigeria, and therefore engaged Bank Phb Order of the Honourable Court dated 21st October, 2009 the (the first defendant) as its key sponsor. Mr Biodun Shobanjo suit was duly struck out. acted as Nigeria’s equivalent of Donald Trump. Although the plaintiff withdrew the suit prior to the A few weeks after the launch of apprentice africa (season hearing of the objection these proceedings somewhat one) the Plaintiff sought the aforementioned relief’s alleging, affirms the well established position set out in the in the main, that as proprietor and initiator of “the intern” cases of Patkun Industries Limited –v– Nigeria Shoes show (an apprentice copy) the defendants had not only in‐ Manufacturing Co. Limited (1988) 5 N.W.L.R 138 and Ay‐ fringed his trade mark rights but also his copyrights. Inci‐ men Enterprises Limited –v– Akume Industries Limited dentally prior to the launch, in Nigeria, of the “apprentice (2003) 12 N.W.L.R 22 wherein the Courts affirmed the Africa” Bank Phb had supported, by way of sponsorship, sea‐ position of section 3 of Nigeria Trade Marks Act which son one of the “intern show”. states that “no person shall be entitled to commence proceedings to prevent or recover damages for the in‐ The defendants Counsel in seeking an Order of dismissal of fringement of an unregistered Trade Mark”. the Plaintiff’s claims canvassed the following arguments: NEWS LETTER Page 3

MALCOLM COHEN OF STOY HAYWARD LOSSES BATTLE AGAINST AFRIBANK NIGERIA PLC BATTLE AGAINST AFRIBANK NIGERIA. The Claimant, suing through his lawful attorney one Chief Lastly the Claimant lacked the capacity to sue on grounds of A.B. Alabi alleged that sometime in 1982 Manlon Trading inconsistency in the Power of Attorney document apparently Limited (a United Kingdom based exporter of goods) and its awarded to A.B. Alabi and secondly and most importantly th subsidiary Rajjman Limited shipped several items, including the Order of the High Court of England dated 4 April helmets, to its customers in Nigeria. These customers in‐ 1990 did not in any way empower the Claimant to pursue clude Emmans Business Foundation, Fedutex Commercial alleged debts relating to specific bills of exchange in this Syndicate and Rumico Merchants. particular suit. In what is considered to be a most illuminating decision The Claimant in his capacity as liquidator to Manlon Trad‐ Honourable Justice Oyebanji of the High Court of Lagos ing Limited and Rajjman Limited commenced the suit before State the Court determined that having perused the State‐ the High Court of Lagos State by way of Writ of Summons ment of Claim it was difficult to determine when the cause and Statement of Claim dated 28th November 1990, respec‐ of action in negligence arose and therefore the Court would tively. be unable to resolve the issue of statute of limitation. How‐ ever the Honourable Judge did hold that by issuing the fresh It is the case of the Claimant that the Defendant negligently 700 day drafts the Claimant had waived its right to claims in released the goods to its customers in Nigeria, contrary to negligence based on the sight bills of exchange. the instructions contained in the sight bill, issued by Allied Having opined aforesaid the Court fleetingly determined the International Bank. The Claimant also alleges that upon neg‐ issue of the Power of Attorney document in favour of the ligent release of the goods the Defendant thereafter col‐ Claimant but agreed with the Defendant that the Claimant lected the proceeds of sale of the goods and has refused to lacked the capacity to sue for alleged debts belonging to forward same. Rajjman Limited. The basis for this was quite simply the fact As a result the Claimant claimed the sum of Six Hundred that the Order of the High Court of England dated 4th and Fifty Two Thousand Three Hundred and Fifty US Dol‐ April 1990 by which the Claimant alleged he was em‐ lars and Two Hundred and Forty Five Thousand Pound Ster‐ powered to sue in respect of debts belonging to ling or their Naira equivalent on grounds of negligence or in Rajjman had been significantly and fraudulently al‐ the alternative for funds allegedly collected by the Defen‐ tered. During the course of trial the Defendants Coun‐ dant from its customers in Nigeria. sel had obtained Certified True Copies of the said Or‐ der of Court from the United Kingdom Courts and it It is important to bear in mind that the Allied Bank Interna‐ was therein revealed that the Claimants appointed at‐ tional had shortly after the release of the goods to the cus‐ torney had fraudulently altered the said Order and pre‐ tomers, in Nigeria, issued a fresh 700 day bill in place of the sented photocopies to the Courts. The Certified True sight bills. Copy of the Order related to absolutely different trans‐ In its Defence the Defendants Counsel raised the following actions and bills of exchange which were unrelated to issues: this case at hand. • The Claimants case is statute barred and in addition the In addition to the above the Honourable Judge opined that Claimant by issuing the fresh 700 day draft had waived the Claimants had totally failed to discharged the evidential its right to sue on any alleged rights accruing from burden required in order to establish that the Defendants wrongful actions for negligence on the sight bill. had collected the proceeds of sale from the customers.

• Based on both documentary and oral evidence the Finally the suit against the Defendant was dismissed in its Claimant had simply not done enough to show that the entirety with costs. Defendants collected the proceeds of sale from the cus‐

tomers of Manlon and Rajjman. NEWS LETTER Page 4

THE NIGERIAN CI VIL AVIATION ACT 200 7. 1.AN O VER VIEW MALCOLM COHEN OF STOY HAYWARD LOSSES BATTLE AGAINST AFRIBANK NIGERIA PLC. 2. ESTABLISHING A FOREIGN AIRLINE IN NIGERIA —THE GENERAL REQUIREMENTS Establishing a foreign Airline in Nigeria—The Modalities

The decision in this suit is significant in view of used the cross‐boarder investigations engaged in dis‐ • Types of Aircraft to be used covering the true facts. • Aircraft Configuration and Specifications We doubt if the Claimants will appeal the deci‐ sion of the Honourable Justice Oyebanji. How‐ • Copy of the Air Operators Certificate ever it will be interesting to asses the grounds • Copy of Certificate of Aircraft registration for each aircraft to be op‐ of a proposed appeal in the event that a Notice erated to and from Nigeria of Appeal is filed. • Evidence of comprehensive insurance cover for aircraft, passenger Establishing a foreign and third party liabilities • Certificate of Airworthiness for each aircraft to be operated to and Airline in Nigeria — The from Nigeria

General Requirements. • Airline security manual

Prior to operating foreign air services in Nigeria • Dangerous goods manual there must exist a Bilateral Air Service Agree‐ • Existing and/or proposed commercial arrangement and alliances ment (BASA) between Nigeria and the foreign with other air operators air operators’ Country of origin. • Evidence that substantial ownership and effective control vests in Once BASA is signed between the two Countries the designating party or its nationals an airline is duly designated by the respective Nation as having the rights to transport persons, • Statement on proposed tariff on the route cargo and mail, between the two Countries. • Statement showing flight schedules and timetables Where a Country fails to designate a carrier, on Upon evaluation of all aforementioned documentation and conclusion of its part, it does not preclude the other from pro‐ a technical evaluation a report is published and forwarded to the ceeding with appointing its designee. Honoutable Minister of Aviation who thereafter is empowered to ap‐ Before commencing flight operations, in Nige‐ prove or disapprove the award of an operating permit to the designated ria, the designated Airline must do the follow‐ airline. ing: It is pertinent to note that carriers designation to operate flights to and 1. Submit to the Federal Ministry of Aviation from Nigeria under BASA are exempt from engaging company registra‐ through diplomatic channels, the following tion, locally (Section 54(3) of Nigeria’s Companies and Allied Matters documents: Act).

• Application letter disclosing the name of The airline is further tasked to consider the following activities: the airline, the address of its principle place • Liaison with the Federal Airports Authority, the Nigerian Civil Aviation authorities of business, the ownership structure, na‐ and The Ministry Aviation, on regulatory. tionality of the airline, address in Nigeria (if • Liaison with the Nigerian immigration service on matters relating to the status of any), details of the airlines representatives expatriate staff. (if any) and proposed date of commence‐ ment of operations. In addition; • Engagement of several service agreements relating to local staff, property leases, office equipment and set up, ticket sales, e.t.c. • Proposed Ground Handling Company to be

ANNOUNCEMENTS 1. Effective from the 1st of March 2010 G.R.F. DALLEY & PART‐ NERS will, under the Organisation Africaine de la Propriete In‐ tellectuelle or Africa Intellectual Property Organisation (OAPI) regime, commence Intellectual Property Services in the follow‐ ing African Countries: The Republic of Benin, Burkina Faso, The Republic of Cam‐ eroon, The Central African Republic, The Republic of Chad, The Republic of Congo, The Republic of Cote d’Ivoire, The Republic of Gabon, The Republic of Guineau‐Conakry, Re‐ public of Guineau‐Bissau, The Republic of Mali, The Is‐ lamic Republic of Mauritania, The Republic of Niger, The Republic of Senegal, The Republic of Togo, Equatorial Guinea. 2. The Firm will also effective from the 1st of March 2010 provide incorporation and start up services in and Cameroon.

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