THE APPRENTICE AFRICA EXPERIENCE

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

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

3 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 A.B. Alabi alleged that sometime in 1982 Manlon Trading Limited (a United Kingdom based exporter of goods) and its subsidiary Rajjman Limited shipped several items, including helmets, to its customers in Nigeria. These customers include Emmans Business Foundation, Fedutex Commercial Syndicate and Rumico Merchants. The Claimant in his capacity as liquidator to Manlon Trading Limited and Rajjman Limited commenced the suit before the High Court of Lagos State by way of Writ of Summons and Statement of Claim dated 28 th November 1990, respectively. It is the case of the Claimant that the Defendant negligently released the goods to its customers in Nigeria, contrary to the instructions contained in the sight bill, issued by Allied International Bank. The Claimant also alleges that upon negligent release of the goods the Defendant thereafter collected the proceeds of sale of the goods and has refused to forward same. As a result the Claimant claimed the sum of Six Hundred and Fifty Two Thousand Three Hundred and Fifty US Dollars and Two Hundred and Forty Five Thousand Pound Sterling or their Naira equivalent on grounds of negligence or in the alternative for funds allegedly collected by the Defendant from its customers in Nigeria. It is important to bear in mind that the Allied Bank International had shortly after the release of the goods to the customers, in Nigeria, issued a fresh 700 day bill in place of the sight bills. In its Defence the Defendants Counsel raised the following issues: The Claimants case is statute barred and in addition the Claimant by issuing the fresh 700 day draft had waived its right to sue on any alleged rights accruing from wrongful actions for negligence on the sight bill. Based on both documentary and oral evidence the Claimant had simply not done enough to show that the Defendants collected the proceeds of sale from the customers of Manlon and Rajjman. Lastly the Claimant lacked the capacity to sue on grounds of inconsistency in the Power of Attorney document apparently awarded to A.B. Alabi and secondly and most importantly the Order of the High Court of England dated 4 th April 1990 did not in any way empower the Claimant to pursue alleged debts relating to specific bills of exchange in this particular suit. In what is considered to be a most illuminating decision Honourable Justice Oyebanji of the High Court of Lagos State the Court determined that having perused the Statement of Claim it was difficult to determine when the cause of action in negligence arose and therefore the Court would be unable to resolve the issue of statute of limitation. However the Honourable Judge did hold that by issuing the fresh 700 day drafts the Claimant had waived its right to claims in negligence based on the sight bills of exchange. Having opined aforesaid the Court fleetingly determined the issue of the Power of Attorney document in favour of the Claimant but agreed with the Defendant that the Claimant lacked the capacity to sue for alleged debts belonging to Rajjman Limited. The basis for this was quite simply the fact that the Order of the High Court of England dated 4 th April 1990 by which the Claimant alleged he was empowered to sue in respect of debts belonging to Rajjman had been significantly and fraudulently altered. During the course of trial the Defendants Counsel had obtained Certified True Copies of the said Order of Court from the United Kingdom Courts and it was therein revealed that the Claimants appointed attorney had fraudulently altered the said Order and presented photocopies to the Courts. The Certified True Copy of the Order related to absolutely different transactions and bills of exchange which were unrelated to this case at hand. In addition to the above the Honourable Judge opined that the Claimants had totally failed to discharged the evidential burden required in order to establish that the Defendants had collected the proceeds of sale from the customers. Finally the suit against the Defendant was dismissed in its entirety with costs.

4 THE NIGERIAN CI VIL AVIATION ACT AN O VER VIEW Page 4 1. 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 the cross boarder investigations engaged in discovering the true facts. We doubt if the Claimants will appeal the decision of the Honourable Justice Oyebanji. However it will be interesting to asses the grounds of a proposed appeal in the event that a Notice of Appeal is filed. Establishing a foreign Airline in Nigeria The General Requirements. Where a Country fails to designate a carrier, on its part, it does not preclude the other from proceeding with appointing its designee. Before commencing flight operations, in Nigeria, the designated Airline must do the following: 1. Submit to the Federal Ministry of Aviation through diplomatic channels, the following documents: Application letter disclosing the name of the airline, the address of its principle place of business, the ownership structure, nationality of the airline, address in Nigeria (if any), details of the airlines representatives (if any) and proposed date of commencement of operations. In addition; Proposed Ground Handling Company to be used Types of Aircraft to be used Aircraft Configuration and Specifications Copy of the Air Operators Certificate Copy of Certificate of Aircraft registration for each aircraft to be operated to and from Nigeria Evidence of comprehensive insurance cover for aircraft, passenger and third party liabilities Certificate of Airworthiness for each aircraft to be operated to and from Nigeria Airline security manual Prior to operating foreign air services in Nigeria Dangerous goods manual there must exist a Bilateral Air Service Agreement (BASA) between Nigeria and the foreign Existing and/or proposed commercial arrangement and alliances 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 Upon evaluation of all aforementioned documentation and conclusion of a technical evaluation a report is published and forwarded to the Honoutable Minister of Aviation who thereafter is empowered to approve or disapprove the award of an operating permit to the designated airline. It is pertinent to note that carriers designation to operate flights to and from Nigeria under BASA are exempt from engaging company registration, locally (Section 54(3) of Nigeria s Companies and Allied Matters Act). The airline is further tasked to consider the following activities: Liaison with the Federal Airports Authority, the Nigerian Civil Aviation authorities and The Ministry Aviation, on regulatory. Liaison with the Nigerian immigration service on matters relating to the status of expatriate staff. Engagement of several service agreements relating to local staff, property leases, office equipment and set up, ticket sales, e.t.c.

5 ANNOUNCEMENTS 1. Effective from the 1st of March 2010 G.R.F. DALLEY & PART NERS will, under the Organisation Africaine de la Propriete Intellectuelle or Africa Intellectual Property Organisation (OAPI) regime, commence Intellectual Property Services in the following African Countries: The Republic of Benin, Burkina Faso, The Republic of Cameroon, 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, Republic of Guineau Bissau, The Republic of Mali, The Islamic 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 Ghana and Cameroon. GABSDALL HOUSE G.R.F DALLEY & PARTNERS Gabsdall House (3rd 4th Floor) 26 Igbosere Road Lagos Nigeria P.O.Box 2572 Tel: , , , Fax: , inq@grfdalleyandpartners.com Url: