The plaintiff in this lawsuit, Rite Foods Limited, is the manufacturer of Rite and Bigi Sausage Rolls, Sosa Fruit Drinks, Nigerian Bigi Drinks, and Fearless Energy Drinks.
Rite Foods Ltd., the manufacturer of Fearless Energy Drinks, filed a lawsuit alleging trademark infringement against Pop Power Energy Drinks’ creator, Mamuda Beverages Nig Ltd., asking the Federal High Court in Abuja to dismiss the case.
The corporation requested that Justice Emeka Nwite dismiss the lawsuit as an abuse of court process through its attorney, O.E.B. Offiong.
The business requested a preservation order in the ex-parte motion, which would be in effect until the substantive suit was heard and decided.
The only defendant, Mamuda Beverages Nig Ltd, learned of the complaint and the hearing date even though the matter was scheduled for an ex-parte hearing before Justice Nwite.
An “ex parte motion” is a formal request submitted to a court by one party without informing the other parties. The judge only takes into account the arguments and supporting documentation of the one party, without hearing the viewpoint of the other side.
When there is an urgent need or a strong argument for moving forward without informing the opposite party, the motion is usually used.
Boonyamen Lawal represented Rite Foods Limited at the time of the matter’s call, while Mr. Offiong declared Mamuda Beverages Nig Ltd’s participation in the lawsuit.
The plaintiff’s ex-parte motion was supposed to address the subject, but Mr. Offiong informed the court that his client had filed a preliminary objection contesting the court’s jurisdiction.
It is a well-established principle, he said, that an application that affects the court must be resolved first.
However, Mr. Lawal disapproved with Mr. Offiong’s argument.
The attorney claimed that he was only given the preliminary objection, which was submitted and dated April 22, the day before, and that he was entitled to reply.
“They are aware of their actions. You can’t hear them. We have a motion ex-parte that is ready for hearing.
I was only served yesterday, and their motion states that we shouldn’t be heard.
“We have a motion ex-parte for today’s business. It was filed and dated April 14, 2025. We are prepared to move forward, subject to your lordship’s convenience.
It is even marked as motion ex-parte on the course list. Our motion is ripe and we are prepared to move forward, he insisted, despite the fact that they (the lawyer for Mamuda Beverages) advertised their appearance and I remained silent.
In response, Mr. Offiong contended that when an action crosses the court’s jurisdiction, the objection should be addressed first, regardless of how a party learns about it.
However, Justice Nwite clarified that because of the urgency of the case, a motion ex-parte is given priority once it is filed because he is a vacation judge.
According to the judge, Mr. Lawal told the court that his motion was ready for hearing and that he had only received the preliminary objection the day before.
Mr. Offiong maintained that the court could not continue with its daily business after an application that teetered on the edge of jurisdiction was submitted.
In order for Mr. Lawal to adequately address their concerns, the attorney asked the court to postpone the hearing.
He claimed to have seen a copy of the chief judge’s order pertaining to vacation cases.
He maintained that the lawsuit Rite Foods Ltd. filed did not qualify as an urgent case.
“The CJ stated that this is not a fundamental right problem. Mr. Offiong stated, “The CJ listed issues that need to be heard.”
Their suit falls under the category of concerns of exceptional urgency, according to Mr. Lawal, who urged the court to reject Mr. Offiong’s position.
He stated, “I will bring to the court the plaintiff’s daily loss as a result of the defendant’s action.”
His client was bleeding, the lawyer added, and if the court didn’t hear him, it might not have anything to decide.
The court would handle the case fairly, Justice Nwite promised.
Although he was curious about how the defendant learned of the motion ex-parte, the judge stated that he could not ignore the jurisdictional difficulty it created.
The parties were then instructed to address the court by the judge.
Speaking to the court, Mr. Offiong stated that the notice motion was filed on April 22 and was dated.
This application contests the court’s authority to consider the plaintiff’s filed procedures.
“On the grounds that it is an abuse of court process, it is requesting that your lordship dismiss the writ of summons, the motion on notice, and the motion ex-parte,” he stated.
To support his position, the senior attorney referenced three other cases, including the 2014 case of Seplat Petroleum Development v. Britalia-U Nig Ltd.
He said the court said that jurisdiction must be decided first once it is brought up.
In response to the plaintiff’s motion ex-parte not being served, he explained that he merely prayed for the court to choose which petitions should be taken first.
Mr. Lawal responded by claiming that he was entitled to address the objection that had just been addressed to him.
He said that none of the three references mentioned by Mr. Offiong specifically stated that an application contesting the court’s jurisdiction is required in order to contest an ex-parte motion.
His motion was ready for hearing, he stated.
He asserts that our application for a preservation order is the court’s business.
He urged the court to avoid falling for such ploys, stating without delving into the merits that Mr. Offiong’s application was an attempt to end the hearing.
Citing Order 26, Rule 7 of the Federal High Court, Mr. Lawal said that the regulations stated that a party may not be heard during the hearing of the motion ex-parte even if they were present.
The attorney also cited Order 29, Rule 2 of the court, arguing that a defendant who is contesting the court’s jurisdiction must first file a memorandum of conditional appearance, which the defendant allegedly did not do.
“A distraction from the business of the day” is how he characterized the defendant’s behavior.
The attorney used the 1995 case of 7UP Bottling Company and Abiola to support his claim that the Seplat case Offiong had mentioned was unrelated to the current lawsuit.
We implore your lordship to reject their scheme, as I have concluded that this application is a ploy to delay the day’s proceedings,” Mr. Lawal stated.
The case was postponed until April 25th for a decision by Justice Nwite.
NAN notes that in its preliminary objection, Mamuda Beverages Nig Ltd claimed that Rite Foods Ltd had brought a comparable lawsuit before Justice Inyang Ekwo with the filing number FHC/ABJ/CS/139/2025.
The defense claimed that the parties in the current complaint were the same as those in the lawsuit that the plaintiff had started on January 28 through a move ex parte, motion on notice, and writ of summons.
It claimed that Rite Foods’ ex-parte application was approved on January 31 and that the corporation executed it on February 10.
According to Mamuda Beverages, on February 24, the parties reached a compromise and agreed to a settlement, which was accepted on March 4 and recorded by Justice Ekwo as a consent decision.
According to the report, one of the agreements required Mamuda Beverages to make changes to the Pop Power Energy Drinks’ product design before starting up production and sales again, which it did.
Because the current litigation aims to relitigate issues settled in suit number. FHC/ABJ/CS/139/2025, the defendant claims that this is a misuse of the court process.
It contended that the honorable court in this case is functus officio with regard to the subject matter and does not have the authority to decide the plaintiff’s allegations.
In the lawsuit filed before Justice Ekwo, Rite Foods Ltd. requested a perpetual injunction to prevent the defendant—whether acting alone, through distributors, or through any person or people—from violating its registered design.
It urged the court to prohibit Mamuda Beverages from manufacturing, supplying, distributing, or selling its “Pop Power Energy Drink products” or any other products that are not the plaintiff’s creations but that closely resemble, are similar to, or have the same design as the plaintiff’s registered bottle design number in Nigeria.
and able to be sold to the general public as the plaintiff’s energy drink products (NG/DS/NT/2020/1099).
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