My response is in affirmative. The issue of jurisdiction is so fundamental that it can be raised by any of the litigants even at the apex court for the first time . See MADUKOLU V NKEMDILI (1962) ANLR (PT. 2) 581, AYMAN ENTERPRISES V. AKUMA IND. LTD (2003)13 NWLR (PT. 836) 22.

Recently I read the case of ACCOR (SOCIETE ANONYME) V H. I. R. LTD (2019)18 NWLR (PT. 1703)44 where the Court of Appeal, Lagos Division on 25th November, 2016 allowed the Appellant’s appeal and upheld its objection on the ground that the trial court (High Court of Lagos state) lacked jurisdiction to entertain the suit instituted by the appellant (as plaintiff). In other words, the appellant argued that the trial court lacked the jurisdiction to entertain a suit initiated by it (as a plaintiff) .

The facts of the case are that the the appellant claimed that it is the registered owner of the Trade Mark “IBIS” used as a point of reference to the appellant in its operation of Hotels, Resorts and Restaurants . The appellant further stated that the respondent since August 2002 pass- off its hotel as that of the appellant by using the Trade Mark “IBIS” when the respondent used the appellation “HOTEL IBIS ROYALE” in furtherance of its design to achieve the passing-off.

The respondent in her defence stated that the use of the Trade Mark is autochthonous, home grown, indigenous and personal to the respondent and that the respondent was named after “IBIASOGBE” “IBIS” for short form of the hometown of its Chairman Chief Executive Officer. The Ibiasogbe is located at Orlu West Local Government Area of IMO State, that “IBIS” is the short form of Ibiasogbe, the respondent said it is the of the disputed Trade Mark.

At conclusion of the matter, the trial court dismissed the plaintiff’s (appellant ) case. The plaintiff was not satisfied and appealed to the Court of Appeal. Among other grounds of appeal was that the High Court of Lagos State lacked jurisdiction to entertain the suit. In well a considered judgment, Court of Appeal allowed the appeal and held that the Federal High Court lacked jurisdiction to adjudicate on the matter.

Can one rightly argue that the appellant approbated and reprobated? In my view, NO. It was an amazing legal stride employed to reinstitued the same cause of action by the appellant.

Recently, Sen Orji Kalu’s lawyer successfully engaged the same tactics. How? If Kalu was discharged and acquitted, he would not have appealed against it. Swiftly, he appealed against the constitution of the court at the time of his conviction and Supreme Court agreed with him (and discharged him) . At least he is not a convict today. That is justice.

The recent case of Sen Orji Kalu is not that of “APPROBATE AND REPROBATE ” , I thought it’s a well defence made to get justice for a client.

Pius I. Ezema, Esq
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