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Burundi Tobacco Co.S.A.R.L & anoer v British American Tobacco (u)Ltd (Civil Appeal Ref.No. 22 of 2010)

Court of Appeal · [2010] UGCA 18 · 2010 Reference Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Reference to a single Justice of Appeal from a ruling of the Assistant Registrar refusing preliminary objections to an application for an interim order of stay of execution
Decision
Reference dismissed with costs; record returned to the Registrar to complete hearing the interim stay application on its merits

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Holding

On a reference from the Assistant Registrar's ruling, the single Justice held that the Court of Appeal (Judicial Powers of Registrars) Practice Direction No. 1 of 2004 empowers a Registrar to entertain applications for interim orders, distinct from substantive applications for stay of execution. All court orders, including injunctions, are executable, only the mode of execution varying, so the contention that an injunction cannot be stayed failed. On the requirement to apply first to the High Court, the Court has discretion under rule 42, and the circumstances justified hearing the respondent on the merits. The reference was dismissed with costs and the record returned to the Registrar to complete hearing the application.

Facts

The respondent obtained a temporary injunction from the High Court restraining the applicants from using a registered SUPERMATCH trademark alleged to be confusingly similar to the respondent's SPORTSMAN trademark, pending determination of High Court Civil Suit No. 445 of 2009. The respondent filed a Notice of Appeal together with an application before the Assistant Registrar seeking an interim order of stay of execution pending a substantive application before a full bench. The applicants raised preliminary objections: that the Registrar lacked jurisdiction, that an injunction is not capable of execution and therefore cannot be stayed, and that the application should first have been made to the High Court. The Registrar overruled the objections and ordered the application to proceed. The applicants applied for a reference to a single Justice.

Issues

  1. Whether the Registrar had jurisdiction to entertain an application for an interim order of stay of execution of a High Court temporary injunction.
  2. Whether an order of temporary injunction is capable of execution such that a stay of execution could issue against it.
  3. Whether the application for stay should first have been made to the High Court before being brought to the Court of Appeal.

Orders

  • The reference is dismissed with costs.
  • The record be returned to the Registrar to complete the hearing of the application on its merits.

Key headnotes

Court of Appeal — Powers of Registrars — Interim Orders under Practice Direction No. 1 of 2004
A Registrar of the Court of Appeal has jurisdiction under the Court of Appeal (Judicial Powers of Registrars) Practice Direction No. 1 of 2004 to entertain applications for interim orders, which are distinct from substantive applications for stay of execution reserved to the full Court.
Interim Orders — Distinction from Substantive Stay of Execution
An interim order is not an alternative to or substitute for a substantive stay of execution; it may be made only in compelling circumstances to prevent defeat of justice and strictly pending the hearing of a substantive application by the full Court.
Execution — Executability of Injunctions
All court orders, including injunctions, are capable of execution, only the mode varying; breach of an injunction may carry penal consequences, and an injunction is therefore not exempt from a stay of execution.
Court of Appeal — Application First to High Court — Discretion under Rule 42
Although an application that may be made either in the Court of Appeal or the High Court should ordinarily be made first in the High Court, the Court retains a discretion under rule 42 to entertain such an application where the justice of the case so requires.

Legislation cited (9)

  • Judicature Act 2000 s.41(1)(v)
  • Civil Procedure Act s.38
  • Civil Procedure Rules Order XLI rule 2(3)
  • Court of Appeal Rules rule 6
  • Court of Appeal Rules rule 42
  • Court of Appeal Rules rule 53
  • Court of Appeal Rules rule 2(2)
  • Court of Appeal Rules rule 32
  • Court of Appeal (Judicial Powers of Registrars) Practice Direction No. 1 of 2004

Cases cited (9)

  • Knight and Another v Clifton and Others [1971] 2 All ER 380
  • Heaton Transport (St Helens) Ltd v Transport and General Workers Union [1972] 3 All ER 101
  • East African General Insurance Co Ltd v Mambhai Patel and 2 Others (Civil Application No. 14 of 2001)
  • Francis Mansi Micah v Nuwa Walakira (Supreme Court Civil Application No. 9 of 1990)
  • National Pharmacy Limited v Kampala City Council [1979] HCB 132
  • Wilson Mukiibi v James Semusambwa (Supreme Court Civil Application No. 9 of 2003)
  • Mandela Auto Spares v Marketing Information Systems Ltd (Civil Appeal Reference No. 74 of 2008)
  • Tropical Bank Ltd and Another v Lweza Clays Ltd and Another (Civil Reference No. 64 of 2009)
  • Sergeant v Patel (1949) 16 EACA 63
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.