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Energy drink war: Court set aside contempt suit against NBC, MD

... awards cost of N1 million against Rite Foods

A Federal High Court sitting in Lagos on Wednesday has set aside the contempt proceedings, instituted by Rite Food Limited against Nigerian Bottling Company and it’s managing director, Mr Mattieu Seguin, for alleged disobedience to court order. The court held that there was no subsisting order that was disobeyed by the respondents.

Justice Ambrose Lewis-Allagoa held that his learned brother Justice Chukwujekwu Aneke had on September 27, 2021, discharged and set aside the committal proceedings. The Judge therefore awarded punitive cost of N500,000 each in favour of NBC and the alleged second contempnor, against the plaintiff, (Rite Food Limited).

In it’s ruling, the court set aside the order of committal proceeding in its entirety including all processes used by plaintiff in the proceedings. Justice Lewis-Allagoa held that the court cannot an vacate existing order. “The Motion filed by the plaintiff is qualified as nullity. A foundation of any committal proceedings is for a valid judgment, where there is no valid judgment it can not be used. Committal proceedings can only exist haven been that the order is still enforceable, the motion dated October 15 and 18, filed by the respondents has merit. I hereby set aside in it’s entirety the committal proceedings, including all the processes”, the judge held.

At the last hearing of the suit, counsel to NBC,Mr Matins Okonma and that of the NBC’s managing director, Mr Oluseye Opasanya ,SAN, had urged the court to set aside the committal proceedings as the exparte order complained of has been discharged. Opasanya had also informed the court that he filed a motion on notice dated October 18 and supported with seven paragraph affidavit together with one exhibit.

He told the court that he brought the motion to strike out the suit on a number of reasons. Counsel to the Nigerian Bottling Company (NBC), Ngo Matins Okonma, has also told the court that he filed an application dated October 15, 2021 and a motion on notice in respect of the application to regularise the application dated November 11.

In his motion on notice, he asked the court to set aside the order of committal proceeding in its entirety including all processes used by plaintiff in the proceedings. They both argued that since the said order has been discharged, the court cannot punish an alleged contemnor for any breach. “The order upon which committal proceedings was premised on has been discharged/ set aside by Justice Chukwujekwu Aneke on September 27, 2021.

NBC had prayed the court to set aside the contempt suit and award punitive costs against Rite Foods if it finds no basis for the contempt proceedings.
Counsel to Rite Food. Mr Muyiwa
Ogungbemiro in his own counter affidavit sworn to by Francis Omoniyi, dated October 21,2021 and a written address to support their case asked the court to dismiss the Contemnors motion to set aside the committal proceedings.

He submitted that contrary to the position of counsel to the contemnors, the court has the power to punish a contemnor for an offence committed during the pendency of an order.
Ogungbemiro added that the order of court complained of was violated during the pendency of the order and this require that the violator must be punished for such act.

After listening to arguments by both parties, the trial judge, Justice Ambrose Lewis-Allagoa adjourned ruling on the application till December 1, 2021.
It would be recalled that Rite Food had dragged NBC and it’s managing director to court over alleged trademark infringement.

The claimant said it has been using and trading with the lion image since 2017, three years before the NBC’s Predator came into the market in 2020. Rite Foods alleged that NBC has infringed on its trademark with its Predator energy drink, which has adopted a lion head in resemblance to the mark on its Fearless energy drinks brand.

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