By Flowerbudnews
The manufacturer of Pop Power Energy Drinks, Mamuda Beverages Nig Ltd, has asked the Federal High Court in Abuja to dismiss a suit filed by Rite Foods Ltd, the maker of Fearless Energy Drinks, over alleged trade mark infringment.
The company, through his lawyer, Chief O.E.B. Offiong, SAN, prayed Justice Emeka Nwite to dismiss the suit for being an abuse of court process.
The News Agency of Nigeria (NAN) reports that Rite Foods Limited, the plaintiff in the case, is the producer of Nigerian Bigi Drinks, Fearless Energy Drinks, Sosa Fruit Drinks and Rite and Bigi Sausage Rolls.
The plaintiff had filed the suit marked: FHC/ABJ/CS/705/2025 to contest the production of Pop Power Energy Drinks over allegations that the drink has striking resemblance with one of its products.
In the ex-parte motion, the company therefore sought a preservative order pending the hearing and determination of the substantive suit.
Although the matter was fixed for hearing of the motion ex-parte before Justice Nwite, Mamuda Beverages Nig Ltd, the sole defendant, however got wind of the suit and the hearing date.
An “ex parte motion” is a legal request made to a court by one party without notifying the other party involved in the case and the judge only considers the one party’s arguments and evidence, without hearing the opposing side’s perspective.
The motion is typically used in emergency situations or when there’s a compelling reason to proceed without notifying the other party.
Meanwhile, when the matter was called, Boonyamen Lawal, SAN, represented Rite Foods Limited while Offiong announced appearance for Mamuda Beverages Nig Ltd in the suit.
Offiong told the court that though the matter was scheduled for the plaintiff’s ex-parte motion, a preliminary objection had been filed on behalf of his client challenging the jurisdiction of the court.
According to him, the principle is well settled that when there is an application affecting the court, this has to be settled first.
Lawal, however, disagreed with Offiong’s submission.
The lawyer said he was only served with the preliminary objection dated and filed April 22, the previous day and he had the right to respond.
“They know what they are doing. They cannot be heard. We have a motion ex-parte to be heard and it is ripe.
“Their motion is saying that we should not be heard and I was only served yesterday.
“Our motion ex-parte is for the business of the day. It was dated and filed on 14th of April, 2025. Subject to your lordship’s convenience, we are ready to proceed.
“Even on the course list, it is listed as motion ex-parte. Even though they (Mamuda Beverages lawyer) announced appearance and I did not say anything, our motion is ripe and we are ready to proceed,” he insisted.
Responding, Offiong argued that no matter how a party becomes aware of a suit, when it borders on the jurisdiction of the court, the objection ought to be heard first.
But Justice Nwite explained that being a vacation judge, priority is given to a motion ex-parte once it is filed due to the urgency of the matter.
Besides, the judge said Lawal informed the court that he was only served with the preliminary objection the previous day and that his (Lawal’s) motion was ripe for hearing.
Offiong insisted that once an application that bordered on the jurisdiction was filed, the court cannot proceed on the business of the day.
The lawyer prayed the court to adjourn the hearing so that Lawal could respond appropriately to their objection.
He said he had seen a copy of the directive of the chief judge concerning vacation cases.
He argued that the suit filed by Rite Foods Ltd did not fall in the category of matters to be regarded as urgent cases.
“This is not a fundamental right issue as said by the CJ. The CJ enumerated matters that should be heard,” Offiong said.
Lawal, who urged the court to discountenance Offiong’s argument, said their suit was in the category of matters of extreme urgency.
“I will point out to the court the daily loss by the plaintiff as a result of the action of the defendant,” he said.
The lawyer said his client was bleeding and that if not heard, there might be nothing to adjudicate on by the court.
Justice Nwite assured that the court would do justice to the matter.
The judge said though he wondered how the defendant got to know about the motion ex-parte, he cannot just gloss over the issue of jurisdiction raised by it
The judge then ordered the parties to address the court.
While addressing the court, Offiong said the motion on notice was dated and filed on April 22.
“It is an application which challenges the jurisdiction of the court to hear the processes filed by the plaintiff.
“It is asking you lordship to dismiss the writ of summons, the motion on notice and the motion ex-parte on the grounds that it is an abuse of court process,” he said.
The senior lawyer cited three previous cases, including the 2014 case involving Seplat Petroleum Development against Britalia -U Nig Ltd to back his argument.
According to him, the court held that once an issue of jurisdiction is raised, it has to be decided first.
He clarified that he did not respond to the plaintiff’s motion ex-parte having not been served, but only praying the court to decide on which motions to be taken first.
Responding, Lawal argued that he had the right to respond to the objection which was just served on him.
He further argued that in the three authorities cited by Offiong, none explicitly said that if one wants to challenge an ex-parte motion, one must come with an application challenging the jurisdiction of the court.
He said his motion was ripe for hearing.
According to him, the business of the court is our motion seeking a preservative order.
He said without going to the merit, the application filed by Offiong was an attempt to scuttle the hearing, urging the court not to fall for such gimmicks.
Citing Order 26, Rule 7 of the Federal High Court, Lawal argued that the rules stipulated that notwithstanding the presence of the other party, such party might not be heard at the hearing of the motion ex-parte.
Also Citing Order 29, Rule 2 of the court, the lawyer argued that where a defendant is challenging the jurisdiction of the court, such defendant must first filed a memorandum of conditional appearance, which he said the defendant failed to do.
He described the defendant’s action as “a distraction from the business of the day.”
The lawyer, who said that Seplat case cited by Offiong was irrelevant in the instant suit, cited the 1995 case of 7UP Bottling Company and Abiola to back his argument.
“My conclusion is that this application is an attempt to stall the business of the day and we urge your lordship to refuse their plan,” Lawal said.
Justice Nwite adjourned the matter until April 25 for ruling.
NAN observes that in the preliminary objection filed by Mamuda Beverages Nig Ltd, it argued that Rite Foods Ltd had filed a similar suit marked: FHC/ABJ/CS/139/2025 before Justice Inyang Ekwo.
The defendant said that the case which was instituted on Jan. 28 by the plaintiff via a motion ex parte, motion on notice as well as a writ of summons, had the same parties in the instant suit.
It averred that on Jan 31, Rite Foods’ ex-parte application was granted and the company executed same on Feb. 10.
Mamuda Beverages said the parties subsequently compromised and settled the said suit on terms of settlement dated Feb. 24, and that the said terms of settlement were adopted on March 4 and entered as consent judgment by Justice Ekwo.
It said one of the agreements was that Mamuda Beverages shall effect modifications to the product design of its Pop Power Energy Drinks before resuming production and sale, which it claimed it did.
According to the defendant, the present suit therefore constitutes an abuse of court process in that it seeks to relitigate matters resolved in suit no FHC/ABJ/CS/139/2025.
“The honourable court is functus officio in respect of the subject matter and lacks the jurisdiction to adjudicate the complaints of the plaintiff in this suit,” it argued.
Rite Foods Ltd had, In the suit before Justice Ekwo, had sought an order of perpetual injunction, restraining the defendant whether by itself, distributors or any other person(s) howsoever described from infringing its registered design.
It urged the court to stop Mamuda Beverages from engaging in the trade or business of manufacturing, supplying, distributing or selling in Nigeria, its “Pop Power Energy Drink products or any other products, not emanating or manufactured by the plaintiff, but closely resembling, similar to and/ or identical in design to the plaintiff’s registered bottle design no. NG/DS/NT/2020/1099 and capable of being offered for sale to the public as the plaintiff’s energy drink products.”
