Wakilii

M.M Sheikh Dawood v Keshwala & Sons (Civil Appeal No. 14 of 2009)

High Court · [2011] UGCOMMC 54 · 2011 Appeal Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from decision of Registrar of Trademarks seeking registration of trademark
Decision
Appeal struck out; matter does not proceed to substantive hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court struck out an appeal from the Registrar of Trademarks for want of service on the respondent. The court held that where an appeal is commenced by notice of motion under rule 115 of the Trademarks Rules, the notice of motion is an originating motion which must be served on the respondent as a matter of fundamental justice under article 28 of the Constitution. Failure to serve the respondent within a reasonable period (at maximum 42 days as stipulated in Trademarks Rules) breaches principles of fair notice.

Outcome

Appeal struck out; matter does not proceed to substantive hearing

Facts

The appellant sought to appeal a decision of the Registrar of Trademarks made on 5 October 2009, which had ruled against the appellant's application for registration of the trademark "Baby Wax Safety Matches". The appellant lodged a notice of motion in the High Court on 30 November 2009, issued by the registrar on 1 December 2009, within the 60-day limitation period. The notice of motion sought to set aside the Registrar's ruling and order registration of the trademark. When the appeal was mentioned on 21 April 2011, the appellant's counsel sought a stay pending a related civil suit. The respondent's counsel objected, noting they had not been served with the notice of motion. At a subsequent mention on 26 May 2011, the respondent's counsel again contended they had never been served with either the notice of appeal or the notice of motion, and prayed that the appeal be dismissed under rule 102 of the Trademarks Rules for non-service. By April 2011, approximately two years had passed since the appeal was lodged, yet the respondent had not been served with the appeal documents.

Issues

  1. Whether failure to serve the notice of motion on the respondent in the circumstances of this case was fatal to the appeal.

Orders

  • Appeal struck out for want of notice of the appeal.
  • Costs awarded to the respondent.

Rules and key headnotes

Trade Marks — Appeals from Registrar of Trademarks — Form and Service Requirements
An appeal from a decision of the Registrar of Trademarks under rule 115 of the Trademarks Rules SI 217-1 must be made by notice of motion, and such notice of motion is an originating motion which must be treated strictly like any other summons originating an action and served on the respondent.
Service of Process — Notice of Motion — Timelines for Service
Where the Trademarks Rules do not prescribe specific timelines for service of an appeal notice of motion on the respondent, failure to serve the respondent within a reasonable period (at maximum 42 days from lodgment, being the timeline stipulated in the Trademarks Rules for other procedural steps) breaches fundamental principles of justice that fair notice of an appeal must be given to the respondent.
Service of Process — Originating Motions — Application of Civil Procedure Rules
Where a statute provides for commencement of proceedings by notice of motion, such a motion is an originating motion to which the general rules on service of summons under Order 5 of the Civil Procedure Rules must apply, and the rules of pleadings relating to original actions should apply.
Fair Hearing — Right to Notice — Article 28 of the Constitution
Article 28 of the Constitution enshrines the principle of fundamental justice that a party to an appeal is entitled to fair notice and must be given opportunity to prepare their defence within a reasonable time, and failure to serve an appellant's notice of motion on the respondent for approximately two years breaches this constitutional right.
Dismissal for Want of Notice — Order 52 Rule 4 CPR — Discretionary Power
Under Order 52 rule 4 of the Civil Procedure Rules, the court has discretionary power to dismiss a motion or application where sufficient notice has not been given or where a person who ought to have had notice has not been served, and such power may be exercised to strike out an appeal with costs for want of notice.

Legislation cited (27)

Cases cited (1)

  • Masaba v Republic [1967] 1 EA 488

Full judgment

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

M.M Sheikh Dawood v Keshwala & Sons (Civil Appeal No. 14 of 2009) [2011] UGCommC 54 (29 June 2011)
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.