Legal Advice

Intellectual Property Infringement- A case study of Sabinus – PART 1- “SOMETHING HOOGE”

INTELLECTUAL PROPERTY INFRINGEMENT- A CASE STUDY OF SABINUS. PART 1- “SOMETHING HOOGE” His name is Chukwuemeka Emmanuel. A popular Nigerian online comedian, fondly referred to as
“Sabinus” (The name of the usual character he plays in his skits) . A few weeks ago, Sabinus’ manager made an announcement on social media regarding the alleged infringement of his client’s
intellectual property by Friesland food Wamco Nigeria (manufacturers of peak milk) and UAC food
ltd (manufactures of Gala sausage roll) and demanded for the sum of One Billion Naira
(N1,000,000,000.00) and One Hundred Million Naira (N100,000,000.00) from them respectively as
damages for the infringement. We would focus our discussion in the first part of this article on the alleged intellectual property
infringement by Friesland Food Wamco (manufacturers of peak milk) for the use of Sabinus’ slogan
“something hooge” in the advertisement of their product. Let us start by giving a brief explanation of Intellectual property.
Intellectual property can be described as the fruits or products of human creativity, unlike real
property which can be identified, intellectual property deals with intangible creation of the mind and
may include inventions, songs, slogans and so on. There are several types of intellectual property
rights such as copyright, trademark, patent and industrial design. For the protection of phrases and
words the applicable intellectual property right would be a Trademark. A Trademark is a word, name, phrase, symbol or combination thereof used by a person or business
entity or proposed to be used to identify and distinguish goods and services from those
manufactured or sold by others. Trademark is hinged on distinctiveness. Section 9 of the
Trademark Act provides for what can be registered as a trademark. They are:
1. The name of the company, individual, firm represented in a special manner;
2. The signature of the applicant for registration;
3. An invented word or words;
4. Word or words having no direct reference to the character or quality of goods and not being
according its ordinary signification in a geographical name or surname; and
5. Any other distinctive mark. As stated above, the phrase “Something hooge” can qualify to be registered as a trademark as it
falls under the category of invented word or words. An invented word or words is one not found in the lexicon devised by a proprietor and applied to a
product or goods. An invented word or words also includes a word with unique spelling or a joining
together of two existing words to form a new word.

Most people will agree that when they hear the phrase “something hooge” the first person that
comes to mind is Sabinus. This is because the phrase was coined by Sabinus to be mentioned in
his various online comedy skits. Now, the most important question here is can the manufactures of peak milk be liable for the
infringement of Sabinius’ trademark?
Section 3 of the Trademark Act provides that no person shall be entitled to institute any
proceedings to prevent or recover damages for the infringement of an unregistered trademark. It
follows therefore that if “something hooge” has been registered by Sabinus as his trademark, he
would be within his right to demand for damages from Friesland Foods Wamco (peak milk) for the
unauthorized use of his trademark. Moreover, the advertisement placed by the company spelt the phrase in the exact way Sabinus does. Had they used the phrase “something huge” instead of “Something hooge” the case might have
been different. On the flip side, if Sabinus did not register “something hooge” as his trademark, or his registration
is pending, he may not be able to institute an action for trademark infringement. However, all hope is not lost if this is the case, as Section 3 of the Trademark Act went further to
state that an unregistered trademark can still seek remedy through the tort action of passing off. Passing off arises where deception is made in the cause of trade, it may exist when one party affixes
another’s trademark to its goods or adopts a trademark that is so similar to that of another that the
consumers are deceived. The tort of passing off seeks to protect the good will or reputation of a
business and can prevent a person passing off goods as that of another to deceive the public. To maintain a successful action for passing off you have to prove
1. You have a goodwill or reputation
2. That there has been a misrepresentation by the person using the mark
3. That you have suffered or likely to suffer damages.

In conclusion, the constant innovation in technology especially with regard to the internet and
social media has brought about an evolution in the entertainment industry,making online creatives
major participants in this industry. It is therefore advised that online creatives/ content creators and
other stakeholders in this space be mindful of protecting their intellectual property rights which
from time to time originates from their creative works as quickly as such works gain influence. Are you a creative/ artist or content creator, and you need legal advise on protecting the intellectual
property of your creative works? Feel free to send an email to info@sunesislegal.com.

DISCLAIMER: Please note that this article is a publication of Sunesis Legal, and is only intended to provide readers with general information on the subject matter. It should not be construed as legal advice, and does not by itself create a client/attorney relationship between readers and our Law Firm. We are available to provide specialist legal advice on the readers’ specific circumstances when they arise. To book a consultation with us send an email to info@sunesislegal.com

Can an illegitimate child inherit from his father or mother in the event of their death?

A child is legitimate if he or she is born in lawful wedlock- LAWAL V. YOUNAM (1961) WNLR197. It follows
therefore that a child conceived and born outside wedlock is illegitimate. Outside wedlock means that the parents
are not validly married to one another. Under Nigerian customary law, a child is considered legitimate if the
paternity of the child is acknowledged by the father of the child before or after the birth of the child. An
illegitimate child can become recognized as legitimate through a process known as Legitimization. Legitimization
may occur through either of the following processes:
(i) Marriage: a child born out of wedlock would become legitimate if its parents eventually get married to each
other;
(ii) Acknowledgment: This is a process of legitimization known only to Customary Law. A child becomes
Legitimate when his father acknowledges paternity by acknowledging the child as his. However,
acknowledgement would not make an illegitimate child legitimate if that illegitimate child was bom out of
wedlock during the subsistence of a valid statutory marriage- COLE V AKINYELE(1960) 5 FSC 84 In this case
the man While in a statutory marriage went to marry another woman under customary law which produced three
children, the court held that the children were illegitimate as they ought to have been a statutory marriage to
legitimate the children.This is aimed at protecting the sanctity of marriage
(iii) There can also be legitimization by Subsequent Marriage.
Also in Igboland there can also be legitimization by payment of dowry.
Illegitimacy poses some problems when it comes to succession. Succession means the process of inheriting
property from a deceased person. When the deceased made a valid will before his death, there is usually no
problem. However, problem arises when the deceased died intestate; that is without a will and this problem is
further compounded where the paternity of the child is not acknowledged by the deceased before his death, either
because he did not know about the existence of that child, or for one reason or the other.
This raises the question: Can an illegitimate child inherit from his father or mother in the event of their death?
The answer to the question is in the affirmative. A child irrespective of whether he is considered to be illegitimate
can inherit alongside his legitimate siblings in the event of the death of his parents. At common law an illegitimate
child was considered a FILIUS NULLIS (incapable of inheriting property from his parent). However, under
Section 10 of Nigerian Legitimacy Act an illegitimate child can now inherit from his mother.
Formerly under the Nigerian Law, before the 1999 constitution came into force, an illegitimate child had no
Inheritance Rights in his father’s Estate- OSHO v. PHILIPS, however, the position has been altered by the 1999
constitution.
The effect of Section 42(2) of the 1999 Constitution of Nigeria (As Amended) is that it has conferred equal
Succession/Inheritance rights on the illegitimate child and the legitimate child. Therefore, the distinction between
an illegitimate child and a legitimate child is a distinction without any legal consequence or implication.

In A LAKE v. PRATT the court found it contrary to public policy to place children born outside lawful wedlock on
the same pedestal as legitimate children This position has however been countered by Section 42 of the 1999
Constitution which provides that no citizen of Nigeria shall be subject to any form of disability or deprivation by
reason of circumstances of his birth. The Legitimate child or a child bom during the subsistence of a valid
marriage has an automatic right to a share in his father’s property, while the right of the illegitimate child to have a
share in the estate (property) of his deceased father is predicated upon his ability to establish that he has been
acknowledged by his father in his lifetime as his child and is therefore entitled to a share in his father’s estate. In
the case of a child who was never acknowledged by his father in his lifetime for one reason or the other, he can
only become entitled to a share of his father’s estate if he is able to adduce clear and credible evidences such as
Birth Certificate, Forms and Photograph or other documentary evidence which proves that he is a child of the
deceased. The case of VKEJE v. VKEJE is very illustrative of this point as the respondent won the case solely on
documentary evidence.
In UKEJE v. UKEJE (2014) LPELR-22724(SC), the Supreme Court finally resolved the uncertainty surrounding
the inheritance rights of illegitimate children when it stated that: The trial court, I hold did rightly declare
Unconstitutional, the law that disinherits children from their deceased father’s estate. It follows therefore that the
Igbo native law and custom which deprives children born out of wedlock from sharing the benefit of their father’s

estate is conflicting with section 42(2) of the constitution of the Federal Republic of Nigeria, 1999 (as amended).
Section 42 of the Constitution entrenches the right to freedom from discrimination and section 42(2) particularly
provides that no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the
circumstances of his birth. It is for this reason that an illegitimate child cannot be robbed of his right to inherit his
from father’s estate (property).
OKONKWO v. OKONKWO (2014) 17N. W.L.R (pt. 1435) 18 was held that: by virtue of section 42 of the
Constitution of the Federal Republic of Nigeria 1999, children born out of wedlock but whose paternity was
acknowledged by the intestate have equal share with the children of the marriage.
In conclusion, although the process of proving the paternity of an illegitimate child is cumbersome, particularly
where the deceased died intestate. Once it is proven, the web of stigmatization hitherto placed on an illegitimate
Child will be removed and he/she will be on the same pedestal as the legitimate child consequently giving him/her
the right to partake in the succession process

DISCLAIMER: Please note that this article is a publication of Sunesis Legal, and is only intended to provide readers with general information on the subject matter. It should not be construed as legal advice, and does not by itself create a client/attorney relationship between readers and our Law Firm. We are available to provide specialist legal advice on the readers’ specific circumstances when they arise. To book a consultation with us send an email to info@sunesislegal.com

THE PROCESS OF EXECUTING A WILL AFTER THE TESTATOR’S DEATH.

a

When someone dies leaving a will, he or she has died testate (and is referred to as a
Testator). The Testator through the will would have appointed one or more individuals to
serve as executors of the will. In this case, the executors will be responsible for administering the assets of the Testator. If you have been appointed as executor, you need to take two important steps:
(a) Obtain the grant of probate. (b) Distribute the assets according to the wishes of the deceased. The administration, practice, and procedure for probate in Nigeria are principally
regulated by the Administration of Estate Laws of the various states of the Federation. The
provisions and forms for each state are identical to one another. Other laws that govern probate in various states include the followings: -The Wills Act, 1837, as amended by the Wills Amendment Act of 1852 and the Wills Law of various
States. -High Court Civil Procedure Rules of Various States e.g. —
High Court of Lagos State (Civil Procedure Rules) 2019. The Grant of Probate is obtained concerning the estate of testate succession, while
Letters of Administration is obtained concerning both intestate succession (where there
is no will) and testate succession. While it is possible to obtain Letters of Administration
for testate succession, it is impossible to obtain Grant of Probate for intestate succession. Probate would mean any of the following actions; -The act of admitting a will for the will to be administered
-The action or step taken towards administering the estate of a deceased person in line
with a valid will written. -Confirmation that indeed the deceased person is dead and taking steps towards
administering his or her estate. The powers and authority of personal representatives (Executors/Administrators) to act
and administer the estate of a deceased is derived from a will where the deceased died
testate. The Grant of Probate and Letter of Administration validates such powers and
authority. The probate registry has the exclusive jurisdiction to issue and revoke grants of probate
and letters of administration of the real and personal estate of a deceased person to his
personal representatives and all other ancillary matters that relate to the administration of
the estate. The Probate Registry is usually a division of the High Court of most states of
the Federation and is subject to the supervision of the High Court of a State.

The probate registry within the jurisdiction of a testator is a secured place for the custody
of wills. Where a will has been prepared by a testator in his hand or by his lawyer, it must
be lodged at the probate registry of the High Court upon payment of the prescribed fees. Keeping the will with the testator might be disadvantageous as there is the possibility of
will falling into the wrong hands, thus it is better to lodge the will with the probate registry
as the safety of the will is guaranteed and the grant of probate is also handled by the same
probate registry of the High Court. Order 62 Rule 2 of the High Court of Lagos State (Civil Procedure Rules) 2019 provides
that “an original Will of which probate or administration with Will annexed is granted, shall be filed and kept in the Probate Registry in such manner as to secure its convenient
inspection. A copy of every such Will and the probate or administration shall be reserved
in the Registry”. When an application to lodge a will is made, the Probate Registrar is required to carry out a
physical examination of the will to ensure it is properly sealed and waxed. The lodgment fee
is made by the testator or his solicitor and an official receipt or reference number will be
issued to that effect. The receipt or reference number will be required upon the death of the
testator where the family seeks to retrieve and read the will. The probate registry is responsible for issuing a Grant of Probate to a deceased person’s
executors in a testate administration. Section 20 of the Administration of Estate Law of
Lagos State provides that “an application for the grant or revocation ofprobate or letters of
administration may be made through the probate registry of the court”. Order 61 Rule 1 of the High Court of Lagos State (Civil Procedure Rules) 2019 provides
that “when any person subject to the jurisdiction of the court dies, all petitions for the
Grant of Letters of Administration of the estate of the deceased person, with or without a
Will attached, and all applications on matters relating to the administration of the
deceased estate shall be made to the Probate Registrar of the court in Probate Form 1 or 2
as applicable “. Upon the death of a testator, the Probate Registry is the first point of call, especially where the
will was lodged at the probate registry by the testator. The grant of probate validates and
provides the grounds for the enforcement of the content of the will. The process for the
application for grant of probate involves the following; •After the burial of the testator, a search is made to discover if a will was lodged and it
proceeds to the reading of the Will. •Application is then made to the Probate Registrar of the Probate Registry of the High Court
of a state, to be accompanied by a copy of the will and the death certificate of the testator.

•Upon submission of the application, forms will be given to the applicant and estate duties
(usually 10% of the total value of the testator’s assets) will be paid on the deceased estate after
the assessment of the estate by the registry. •The necessary forms or documents that would be needed for grant of probate are as follows:
(i) Application for grant of probate of the will. (ii) Declaration on oath by the executors. (iii) Bank certificate. (iv)Proof of identity of the applicant. (v)Proof of identity of the deceased. (vi)A duly completed inventory of assets of the deceased.

DISCLAIMER: Please note that this article is a publication of Sunesis Legal, and is only intended to provide readers with general information on the subject matter. It should not be construed as legal advice, and does not by itself create a client/attorney relationship between readers and our Law Firm. We are available to provide specialist legal advice on the readers’ specific circumstances when they arise. To book a consultation with us send an email to info@sunesislegal.com