Rite Foods Ltd., the manufacturer of Fearless Energy Drinks, filed a lawsuit alleging trademark infringement against Pop Power Energy Drinks’ producer, Mamuda Beverages Nig Ltd., but Mamuda Beverages is 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. Nigerian Bigi Drinks, Fearless Energy Drinks, Sosa Fruit Drinks and Rite and Bigi Sausage Rolls are all produced by Rite Foods Limited, the complainant in the lawsuit, according to the News Agency of Nigeria (NAN). The plaintiff contested the creation of Pop Power Energy Drinks, claiming that the drink had a remarkable resemblance to one of its products, in the lawsuit filed under the filing number FHC/ABJ/CS/705/2025.
Continuing, the firm filed the ex-parte application to get a preservative order while the substantive complaint was being heard and decided. Despite the application being scheduled for hearing ex parte before Justice Nwite, the lone defendant, Mamuda Beverages Nig Ltd, learnt of the litigation and the hearing date.
BrandSpur news brand reports that an “ex parte motion” is a formal request submitted to a court by one party without informing the other parties so that the judge can only hear the arguments and supporting documentation from that party and not the viewpoint of the other side. When there is a compelling reason to move forward without informing the other side, or in an emergency, the motion is usually adopted.
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. Rite Foods’ representative disagreed with Mr Offiong’s submission.
The attorney stated that he had the right to reply and that he had only been served with the preliminary objection, which was filed and dated April 22.
He has this to say: “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 the 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 added.
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.
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 about vacation cases. He maintained that the lawsuit Rite Foods Ltd. filed did not qualify as an urgent case.
Mr Offiong proceeded to say: “This is not a fundamental right issue as said by the CJ. The CJ enumerated matters that should be heard.”
Mr Lawal stated that their suit fell within the category of matters of extraordinary urgency and requested the court to reject Mr Offiong’s argument.
According to him: “I will point out to the court the daily loss by the plaintiff as a result of the action of the defendant.”
Furthering, the attorney stated that his client was bleeding and that the court might not have anything to decide if they were not heard. The court would treat the case fairly, Justice Nwite promised. Even though he was curious about how the defendant learnt of the motion ex-parte, the judge stated that he could not ignore the jurisdictional difficulty it created. After that, the judge gave both parties instructions to speak in front of the court.
Mr Offiong told the court that the notice motion was submitted on April 22 and was dated. He went on to say: “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.”
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 that the court ruled that a jurisdictional dispute must be resolved first. He explained that he merely prayed for the court to determine which motions should be taken first and did not reply to the plaintiff’s petition ex-parte not being served.
In response, Mr Lawal contended that he was entitled to address the issue that had just been presented to him. He said that none of the three references, Mr. Offiong cited made it clear that one needed to submit an application contesting the court’s jurisdiction to contest an ex-parte motion. His motion was ready for hearing, he stated.
Mr. Lawal 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.
In support of his argument, Mr Lawal cited Order 26, Rule 7 of the Federal High Court, which states that a party may not be heard at the hearing of the motion ex-parte even if they are present. Using Order 29, Rule 2 of the court as support, the attorney contended that a defendant contesting the court’s jurisdiction must first submit a memorandum of conditional presence, which the defendant allegedly did not do. The defendant’s activity was characterised by him as “a distraction from the business of the day.” 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.
According to Mr Lawal: “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.”
The case was adjourned 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 defendant claimed that the same persons were involved in the lawsuit that was started on January 28 by the plaintiff through a move ex parte, motion on notice, and writ of summons.
Rite Foods’ ex-parte application was granted on January 31 and the company executed it on February 10. According to Mamuda Beverages, the parties then reached a compromise and settled the suit on terms of settlement dated 24 February, which were adopted on 4 March and entered as a consent judgement by Justice Ekwo. One of the agreements, it claimed, was that Mamuda Beverages would modify the product design of its Pop Power Energy Drinks before resuming production and sale, which it did.
The defendant claims that the current suit is an abuse of the court process because it attempts to relitigate issues settled in suit no FHC/ABJ/CS/139/2025.
According to the claims: “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.”
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.
However, it requested the court to prevent Mamuda Beverages from using 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” in Nigeria.
