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Muse AF Enterprises Company Limited v Lingi Huatai Battery Manufacturing Company Limited (Miscellaneous Application 376 of 2023)

High Court · [2023] UGCOMMC 54 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to appeal a ruling in Miscellaneous Application No. 1108 of 2021 arising from High Court Civil Suit No. 376 of 2020
Decision
Leave to appeal granted; proceedings in main suit stayed pending appeal; injunction issued restraining applicant from trademark infringement activities

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted leave to appeal, finding that the interpretation and application of Order 11A rule 1 sub-rules 4 and 6 of the Civil Procedure Rules raised substantial questions of law requiring guidance from the Court of Appeal. The court held that filing summons for directions is mandatory unless specific exceptions apply, and that failure to do so causes a suit to abate. The court found that the exceptions relied upon by the lower court did not apply. Pending the appeal, the court issued an injunction restraining the applicant from importing or selling batteries bearing marks related to the respondent's PANASUPER trademark and stayed proceedings in the main suit.

Outcome

Leave to appeal granted; proceedings in main suit stayed pending appeal; injunction issued restraining applicant from trademark infringement activities

Facts

The applicant sought leave to appeal a ruling in Miscellaneous Application No. 1108 of 2021, which had dismissed the applicant's challenge to High Court Civil Suit No. 376 of 2020. The underlying dispute concerned ownership of the PANASUPER trademark. In consolidated civil suits 102 of 2013 and 271 of 2013, the trial court had found that the applicant fraudulently registered the PANASUPER trademark and ordered it struck off the register. The respondent subsequently registered the trademark. The applicant appealed that decision vide Civil Appeal No. 13 of 2016, which remained pending. Despite the trial court's finding, the applicant continued importing batteries bearing marks similar to PANASUPER, leading the respondent to file HCCS 900 of 2017 and later HCCS 376 of 2020 for trademark infringement. In MA 1108 of 2021, the applicant argued that HCCS 376 of 2020 had abated because the plaintiff failed to take out summons for directions within the prescribed time under Order 11A of the Civil Procedure Rules. The trial judge rejected this argument, finding that exceptions applied. The applicant sought leave to appeal that ruling.

Issues

  1. Whether the Applicant should be granted leave to appeal the ruling in Miscellaneous Application No. 1108 of 2021.
  2. Whether High Court Civil Suit No. 376 of 2020 had abated by operation of law for failure to take out summons for directions within the prescribed time.
  3. Whether the exceptions under Order 11A rule 1(4) of the Civil Procedure Rules applied to excuse the failure to take out summons for directions.
  4. What remedies are available to the parties pending the appeal.

Orders

  • Leave to appeal the ruling in Miscellaneous Application No. 1108 of 2021 is granted.
  • An injunction is issued preventing the Applicant, its assignees, agents, servants and all persons acting under its instructions from importing or authorizing the importation and sale of PANE SUPER or PANASUPER batteries, or any other batteries with marks and descriptions related to the Respondent's PANASUPER trademark which are likely to give rise to further passing off or infringement claims by the Respondent.
  • Proceedings in High Court Civil Suit No. 376 of 2020 are stayed pending the determination of the appeal.
  • The Anton Piller Order issued vide Miscellaneous Application No. 425 of 2020 and extended vide Miscellaneous Application No. 573 of 2020 shall remain valid and enforceable.
  • Costs shall abide the outcome of the appeal.

Rules and key headnotes

Civil Procedure — Summons for Directions — Mandatory Nature of Order 11A Rule 1(2) — Effect of Failure to Comply
Under Order 11A rule 1(2) of the Civil Procedure Rules, a plaintiff must take out summons for directions within 28 days from the date of the last reply or rejoinder. The use of the word 'shall' in Order 11A rule 1(6) makes this requirement mandatory, not permissive. Unless the exceptions laid out in Order 11A rule 1(4) apply, failure to file summons for directions causes the suit to abate by operation of law.
Civil Procedure — Summons for Directions — Exceptions under Order 11A Rule 1(4) — Transfer of File Between Judges
The exception under Order 11A rule 1(4)(d) of the Civil Procedure Rules, which exempts actions where an application for transfer to another division, court or tribunal has been made, does not apply where a file is merely transferred from one judge to another within the same division. Summons for directions are handled by the registrar regardless of which judge the file has been allocated to.
Civil Procedure — Leave to Appeal — Test for Granting Leave — Substantial Questions of Law
Leave to appeal will be granted where the appeal raises substantial questions of law requiring judicial consideration, particularly where there are conflicting decisions of coordinate jurisdiction on the interpretation and application of a statutory provision. The test is whether the question of law is of sufficient difficulty or importance to warrant consideration by the appellate court, not whether the appeal will succeed.
Civil Procedure — Leave to Appeal — Court's Role — Not Perfunctory
Where an applicant does not have an automatic right of appeal, the court's role in determining an application for leave to appeal is not perfunctory. The court must address its mind to the grounds of the application and decide whether to allow it. The court should not refrain from considering the merits entirely, though it need not determine whether the appeal will succeed.

Legislation cited (12)

Cases cited (7)

  • Sango Bay Estates Limited v Dresdner Bank and the Attorney General [1971] EA 17
  • Swain v Hillman [2001] 1 All ER 91
  • Carlton Douglas Kasirye v Sheen Ahumuza Bagaine (HCMA No. 150 of 2000)
  • Seruwu Jude v Swangz Avenue Limited (Civil Appeal No. 39 of 2021)
  • Kilama Tonny and Another v Grace Perpetua Otim (Civil Appeal No. 13 of 2019)
  • Alley Route Ltd v Uganda Development Bank Limited (HCT-00-CC-MA-634 of 2006)
  • Commissioner General Uganda Revenue Authority v Meera Investments Ltd (Miscellaneous Application No. 359 of 2006)

Full judgment

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

Muse AF Enterprises Company Limited v Lingi Huatai Battery Manufacturing Company Limited (Miscellaneous Application 376 of 2023) [2023] UGCommC 54 (30 June 2023)
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.