This action has its cause in the tort of passing-off. The plaintiffs (now respondents) claim to be entitled to the trademark of a pharmaceutical product, a worm expeller for the treatment of worms in children and adults, known as COMBINTERIN PLUS duly registered under Trade Mark No. 31159. There is another pharmaceutical product branded COMBINTERIM put on public sale by the manufacturer/distributor going by the trade name IYKE MEDICAL MERCHANIDISE, sued as the defendant (now appellant). The said COMBINTERIM is offered for the treatment of worms in both children and adults as though the plaintiff's COMBANTRIN.

The respondents then brought a suit against the appellant on 18 October, 1993 at the Federal High Court, Enugu.

The respondents also filed a motion for an interim injunction. In the meantime the appellant brought a motion praying that the suit together with the motion for interim injunction be dismissed on a number of grounds.

The affidavit in support of the motion was sworn by Ethel Okonkwo. He styled himself a Nigerian businessman of No. 15 Sheaba Street Fegge, Onitsha running his business at the Niger Bridge Head Market, Onitsha. He deposed among other things that he was served with the court processes in the suit by a bailiff on or about 20 October, 1993. Further, that he was not IYKE MEDICAL MERCHANDISE and that from the information given to him by his counsel, O.J. Nnadi Esq., the said IYKE MEDICAL MERCHADISL was not a person known to law.

The motion was heard by Abutu, J. In a considered ruling given on 4 February, 1994, the learned trial judge struck out the defendant's name and dismissed the suit.

The plaintiff appealed to the Court of Appeal. The Court of Appeal allowed the appeal holding that the defendant - Iyke Medical Merchandise could be sued. The defendant appealed to the Supreme Court.