Explore Spares Uganda Ltd & 2 Ors v Bhesania Suhel Ismail (Miscellaneous Application No. 432 of 2016)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The court declined to review its earlier ex parte order granting inspection and seizure of goods alleged to infringe a trademark, despite evidence that the affidavit supporting the application was irregular. The court held that while the affidavit was improperly sworn, the documentation attached established the respondent's registered trademark rights, the inspection had already been completed, and the main suit remained pending for determination of the parties' rights.

Outcome

Application for review dismissed; earlier ex parte order permitting inspection and seizure of allegedly infringing goods stands; seized goods remain with court bailiff pending determination of main suit

Facts

The respondent, a registered trademark owner of the mark FUKUKAWA in Uganda, obtained an ex parte order under section 79(2) of the Trademarks Act 2010 permitting inspection and seizure of goods from the applicants' premises bearing the trademark. The order was executed and goods were seized. The applicants subsequently applied for review, alleging the affidavit supporting the ex parte application was fatally defective because the deponent was out of Uganda on the date the affidavit was sworn in Kampala. The applicants produced travel history records from the Immigration Department showing the respondent left Uganda on 14 April 2016 and had not returned by 4 May 2016 when the affidavit was allegedly sworn. The applicants argued this irregularity rendered the application incompetent and the court's order null and void. The respondent countered that the application was premature, had been overtaken by events since the order was already executed, and that the applicants had infringed trademark rights.

Issues

1. Whether an order made pursuant to an ex parte application supported by a defective affidavit should be reviewed and set aside.
2. Whether the affidavit in support of the ex parte application was fatally defective because the deponent was allegedly out of the country when it was sworn.
3. Whether new evidence of the deponent's travel history constitutes grounds for review under Order 46 rule 1 of the Civil Procedure Rules.

Orders

• Application dismissed.
• No order as to costs.

Rules and key headnotes

Legislation cited (16)

• Civil Procedure Rules Order 46 rule 1(1)(b)
• Civil Procedure Act s.82
• Civil Procedure Act s.98
• Judicature Act s.33
• Oaths Act Cap 19 s.6
• Trademarks Act 2010 s.79(2)
• Trademarks Act 2010 s.79(4)
• Trademarks Act 2010 s.82
• Trademarks Act 2010 s.71
• Trademarks Act 2010 s.72
• Trademarks Act 2010 s.73
• Trademarks Act 2010 s.74
• Trademarks Act 2010 s.75
• Trademarks Act 2010 s.76
• Trademarks Act 2010 s.77
• Trademarks Act 2010 s.78

Cases cited (4)

• Mohammed Majyambere v Bhakresa Khalil (Miscellaneous Application No. 727 of 2011)
• Kakooza John Baptist v Electoral Commission and Another (Election Appeal No. 11 of 2007)
• Edison Kanyabwera v Pastore Tumwebaze (SCCA No. 6 of 2004)
• Eastern and Southern African Development Bank v African Green Fields Ltd [2002] 2 EA 377

The original judgment as reported. Read the original PDF before relying on any passage.