IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA, GHANA- A.D. 2004
DATED
16TH
CA. 34-2003
FEBRUARY, 2004
CORAM –
TWUMASI JA [PRESIDING]
OMARI SASU JA
J. A. OSEI JA
INTERWORLD PRODUCTS [GH] LTD.
…
PLAINTIFF/APPLICANT
versus
LAVA LIMITED
…
DEFENDANT/RES.
J U D G E M E N T
TWUMASI, JA : The central issue in this appeal as indeed it was rightly found by the
learned trial Judge, is whether the respondent [defendant at the court below] is passing
off its electric fans as those of the appellant, plaintiff in the said court, by similarity of the
get-up of the disputed fans.
The plaintiff’s case was that it had for a considerable length of time been selling a
type of electric fan with the name “Binatone” but that quite recently the respondent has
been dealing in a fan named “MIKACHI” but the get-up is similar to the appellant’s fan.
The latter contends that this conduct on the part of the former is injurious to its trade or
business and the appellant claims damages for the fort of passing off its fans.
At page 659 of the 12th Edition of Salmond On Torts, the learned author says:
“This gist of the conception of passing off is that the goods
are in effect telling a falsehood about themselves, are saying something
about themselves which is calculated to mislead. The law on this
matter is designed to protect traders against that form of unfair
competition which consists in acquiring for oneself, by means of
false or misleading devices, the benefit of the reputation already
achieved by rival traders.”
The learned trial judge dismissed the appellant’s claim and upheld the counterclaim of the respondent and awarded it damages arising from the loss of profits in
business occasioned by an injunction order obtained by the appellant against the
respondent at the initial stages of the institution of the action.
The appellant’s Counsel’s main ground of appeal is that a substantial miscarriage
of justice has been occasioned by the learned trial judge’s failure to inspect, examine,
look at and compare the get-up in the fans exhibited at the court to detect properly the
similarities with a view to determining whether there was a case, of passing off. In his
statement of case the appellant’s counsel stated as p.3 thereof:“The plaintiff/appellant will at the hearing of this appeal respectfully
invite the court to inspect and examine the exhibits in the case.”
Counsel further submitted the following at p. 4 of his statement of case:“Comparison of the fans reveals similarity of the get-up ranging from colour to
inscriptions, raising strong likelihood of confusion [in the
minds of the public.] [Emphasis mine]”
It is my view that since the appellant tendered in evidence the controversial fans,
the learned trial judge must be deemed to have had a look at them.
In fact, reading through the judgment,it is quite clear that she did. The learned
trial judge, if I understood her judgment very well, had the get-up of the fans tendered at
the back of her mind when she wrote her judgment. What is clearly noticeable in the
judgment is that she took into serious consideration the character and level of intelligence
of the ordinary Ghanaian consumer looking for a fan to buy and using this as a
guidepost, she then set herself the question of whether such a customer would be
deceived in his or her mind as to the identity of a fan sold by the appellant and another
sold by the respondent and using what she thought to be the conspicuous distinctive
features in the two fans “Binatone” and “Mikachi” arrived at the conclusion that there
was no such evidence of the likelihood of deception proved by the appellant. Looking at
the evidence adduced at the trial,I was unable to fault her approach and the conclusion
she reached. The learned trial judge hit the nail right on the head when she stated in her
judgment at page 97 thus:“for in our part of the world where a greater majority of
our people know next to nothing about warranties, a party
buying a standing fan generally goes by the brand name
the assembled fans are then tested and taken away in that manner.”
Yet another unimpeachable and persuasive portion of the judgment must be
quoted and it is at p. 98 thus:
“The plaintiff and the defendant deal in different and distinctive
brand of goods Binatone and Mikachi, no shred of evidence
was led as to the defendants appropriating the plaintiff’s
goodwill. It is evident that the plaintiff has established its
reputation and good will in Binatone and in the absence
of evidence that the defendant deals in those products, the defendant
cannot be said to have passed off the plaintiff’s products.”
Throughout the statement of case submitted on behalf of the appellant no portion
of it talks of the oral testimonies of the appellant and to its witnesses some of whom
were subjected to scathing cross-examination as exemplied amply by the address filed on
behalf of the defendant as affording satisfactory proof of the respondent appropriating the
appellant’s goodwill.
The appellant now invites this court to inspect the fans or exhibits tendered at the
court below to form our own view.
I am afraid this court would not accede to this invitation, simply because it is not
a trial court. What counsel for the appellant wants this court to do in effect is to move to
the locus in quo and make primary findings. This function is by law given to the trier of
fact, not this court: See section 68 of the Courts Act 1993 [Act 459]
There is yet another important aspect of the evidence which the learned trial judge
considered and which appeals to me as very vital. The learned trial judge made a positive
finding which cannot be disputed that because the two companies litigating admitted it,
that the fans in both cases are not manufactured according to the specifications of both
the appellant and the respondent companies. She then stated the law as enunciated in the
English case of AB Manus v. R. J. Fullwood & Bland Ltd. 1949 ch 208 and held that it
did not lie in the mouth of any of the two companies to complain except where it could be
proved that the importer [any of the two] had been perceived as the true source of the
goods, that is to say, as the manufacturers. In the instant case, there was no such
evidence before the court. On the totality of the evidence I have not been persuaded to
reverse the decision of the trial court. It follows that the appeal ought to and it is
accordingly dismissed. Costs of ¢1 million for respondent.
P.K. TWUMASI
JUSTICE OF APPEAL COURT
OMARI-SASU JA - I agree.
J. A. OSEI
JA - I also agree.
OMARI-SASU
JUSTICE OF APPEAL COURT
J.A. OSEI
JUSTICE OF APPEAL COURT
.
..3.