Facts:

The Plaintiff is an American company formally name “allied Corporation” and it owns various trademarks under which it manufactures and sells brake and clutch fluids for motor vehicles. The 2nd Plaintiff is a French company and a subsidiary of the 1st Plaintiff. It manufactures brakes and fluids under the trademark owned by the 1st Plaintiff and have been marketing their products here in Nigeria for several years in distinctively black and white cans. The 1st Defendant is a Nigerian company engaged in the manufacture of, importation and sale of brake and clutch fluid. The 2nd Defendant is its chief executive officer.
Sometime in 1992, the 1st Defendant started marketing in Nigeria a clutch and brake fluid product branded as “Allied”. The design and marks on the can in which the 1st Defendant’s product was sold are imitative of the design and trade marks on the plaintiffs’ Bendix brake and clutch fluid cans. The Plaintiffs’ complain that the use by the Defendants of marks and design imitative of the marks and designs on their Bendix brake and clutch fluids cans is calculated to lead and has in fact led to deception and the belief that the Defendants’ Allied brake and clutch fluid product is the Plaintiff’s product or originate from the same source as the Plaintiffs’ Bendix brake and clutch fluid.

The Plaintiffs therefore claimed against the Defendants for infringement of the registered trade mark “Allied & device” registered variously under No. 40189 in classes 1, under No. 40188 in class 9 and under No. 40186 in class 12 as well as the infringement of the trademark “DBA with parallel lines design” registered under No. 49735 in class 1. The Plaintiffs also claim for passing-off on the basis of the imitation on the can of the Defendants’ allied brake and clutch fluid of the design on the Plaintiff’s Bendix brake and clutch fluid can as well as on the basis of the use by the Defendants on their products of the 1st Plaintiff’s trade mark “e5” and “ALLIED”.

Two years and three months, after the registration of the “Allied and Device” trade mark, and three months after trial had commenced and samples of contending products had been tendered in evidence, the Appellants filed a motion dated 20th January, 1999 praying for the dismissal of the respondents claims on the ground that the claims were frivolous, vexatious and are an abuse of the court’s process. The application was supported by an affidavit sworn to by the 2nd appellant on 22nd January, 1999.
The learned trial Judge heard arguments for and against the application of the Appellants for the dismissal of the claim of the Respondents. He delivered a ruling on 13th April, 1999, dismissing the application. The Appellants appealed to the Court of Appeal against the ruling by filing on the 27th of April, 1999 a notice of appeal containing two grounds of appeal. The Court of Appeal delivered its judgment on 4th May, 2006 dismissing the appeal. Further dissatisfied, the Appellants appealed to the Supreme Court.