INTERWORLD PRODUCTS (GH) LTD. vs. LAVA LIMITED [2004]DLCA6730

Date	2004-02-16
Suit No.	CA. 34/2003
Citation No.	[2004]DLCA6730

TWUMASI JA [PRESIDING]

OMARI SASU JA

J. A. OSEI JA

[2004]DLCA6730
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													<main id="main" class="content" style="min-height: 60rem" >INTERWORLD PRODUCTS (GH)
LTD.<o:p></o:p>vs.<o:p></o:p>LAVA LIMITED<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

CA. 34/2003&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 16TH FEBRUARY,
2004<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>TWUMASI, JA <o:p></o:p>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. <o:p></o:p>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. <o:p></o:p>At
page 659 of the 12th Edition of Salmond On Torts, the learned author says: <o:p></o:p>“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.” <o:p></o:p>The
learned trial judge dismissed the appellant’s claim and upheld the counterclaim
of the respondent and award 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. <o:p></o:p>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
at p.3 thereof:— <o:p></o:p>“The plaintiff/appellant will at the
hearing of this appeal respectfully invite the court to inspect and examine the
exhibits in the case.” <o:p></o:p>Council
further submitted the following at p.4 of his statement of case:— <o:p></o:p>“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]”<o:p></o:p>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. <o:p></o:p>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:— <o:p></o:p>“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.” <o:p></o:p>Yet
another unimpeachable and persuasive portion of the judgment must be quoted and
it is at p. 98 thus:— <o:p></o:p>“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.” <o:p></o:p>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. <o:p></o:p>The
appellant now invites this court to inspect the fans or exhibits tendered at the
court below to form our own view. <o:p></o:p>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]. <o:p></o:p>