Court name
Commercial Court of Uganda
Judgment date
19 June 2015

M.M Sheikh Dawood v Keshwala (Miscellaneous Application-2015/138) [2015] UGCommC 87 (19 June 2015);

Cite this case
[2015] UGCommC 87

THE REPUBLIC OF UGANDA,

IN THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

MISCELLANEOUS APPLICATION NO 138 OF 2015

(ARISING FROM CIVIL SUIT NO 43 OF 2010)

M.M SHEIKH DAWOOD}.....................................................................APPLICANT

VS

VIRAM GIGA RANMAL KESHWALA}................................................RESPONDENT

BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA

RULING

The Applicant filed this application for extension of time within which to appeal against the taxation ruling of the taxing master in Civil Suit Number 43 of 2010 and for costs of the application be in the main cause.

The grounds of the application are that the Applicant is dissatisfied with the taxation ruling of the taxing master delivered on 30 October 2014 in High Court civil suit number 43 of 2010. The Applicant therefore instructed its Counsel to appeal against the taxation ruling in time. The Applicants Counsel inadvertently filed the appeal against a party which had been declared a nonentity by the court. The appeal was consequently struck out on the ground of being filed against a nonentity. The appeal would have been filed within the requisite time and did not been a mistake of Counsel. The filing of the appeal in the names of the party with no legal capacity was a mistake of Counsel which should not be visited against the innocent Applicant. Furthermore it is averred the Applicant is interested in pursuing the appeal against the taxation ruling and made this application without delay. The Respondent would not suffer any prejudice if time is extended within which to file an appeal against the rightful person. Finally it is averred that it is just, fair and equitable for the time within which to appeal against the taxation ruling, to be extended.

The application is supported by the affidavit of Abdul Jamal Nazar, a holder of the powers of attorney of the Applicant said to possess authority of powers of attorney which is attached.

The Applicant is represented by Counsel Nakiranda Rebecca of Messieurs Shonubi, Musoke and Company Advocates while the Respondent is represented by Counsel Kasiisa Ronald of Messieurs Kasiisa and Company Advocates.

At the hearing of the application Counsel Ronald Kasiisa objected to the application on the ground that the deponent to the affidavit in support of the application had no authority to bring the application on the behalf of the Applicant. His objection though made in reply to the submissions of the Applicant’s Counsel, amounts to a preliminary point of law touching on the competence of the application and it ought to be disposed of first.

The Respondent’s Counsel based his objection on the attached powers of attorney from the Applicant annexure "A" as well as the provisions of Order 3 rules 1 and 2 of the Civil Procedure Rules which defines an authorised agent. He contended that the powers of attorney attached empowered the deponent to the affidavit in support to register trademarks. However Order 3 of the Civil Procedure Rules requires appearances by recognised agents. For instance the power of attorney should authorise appearances etc. He contended that being empowered to register a trademark does not empower the attorney who represented the Applicant in everything especially in filing an action in a court of law. In those circumstances he submitted that the deponent cannot claim protection under Order 3 rule 2 (b) of the Civil Procedure Rules which allows a person trading in the name of another to appear on behalf of the principal. As far as annexure "B" is concerned, it is an agency agreement appointing M/s Alia Commodities (U) Ltd as an agent and sole distributor of Baby Wax Safety Matches in Uganda. M/s Alia Commodities is not the deponent and the provisions of Order 3 rule 2 (b) of the Civil Procedure Rules is inapplicable to the deponent. In the premises the Respondent’s Counsel prayed that the court finds that the deponent had no authority to commence the application or the appeal and the affidavits in support and in rejoinder should be struck out. This would leave the Applicants application for extension of time not supported by any affidavit evidence thereby rendering it incompetent. He prayed that the application fails with costs on this ground.

In reply Counsel Rebecca submitted that the deponent to the affidavit in support of the application had powers to represent the Applicant. He had powers to do all acts and deeds that would be necessary to achieve the desired objective. She further contended that these proceedings are not new but are a continuation of a trademark dispute. Secondly she submitted that it was not the first time the deponent swore an affidavit in these matters. The suit was filed in the name of the Applicant and the deponent was given the power to represent him in all proceedings, including court proceedings.

In rejoinder on the preliminary point of law the Respondent’s Counsel submitted that the power of attorney describes the extent of powers of the deponent and particularly the clause which includes incidental powers cannot be further extended to include commencing civil proceedings in a court of law. He contended that the Applicants made an agency agreement which he compared with the powers of attorney. The agency gives a wide powers but the power of attorney does not. Because the principal/donor is the same person, he contended that the principal/donor intended the attorney to have restricted powers.

Resolution on the preliminary point of law:

I have carefully considered the preliminary point of law based on the authority of Mr Abdul Jamal Nazar (hereinafter referred to as the deponent), to depose an affidavit in support of the application and any rejoinder to the reply to the application. The affidavit in rejoinder paragraph 2 thereof of Mr Abdul Jamal deposes that since 2008 he represented the appellant and filed several affidavits pertaining to this matter as a holder of the powers of attorney to the intended appellant. The power of attorney is attached to the affidavit in rejoinder. I have carefully considered the wording of the relevant powers of attorney which is also the basis of the Respondent’s objection disputing the authority of Mr Abdul Jamal to file an affidavit in support of the Applicant’s application. In that power of attorney MM Sheik Dawood appoints Mr Abdul Jamal Nazar of PO Box 27280, Kampala to be his true lawful attorney and in his names and on his behalf to execute the following acts or deeds in any such manner as he may deem fit namely:

"1. To register on my behalf and in my name the trademark comprised in "BABY" wax safety matches in the territory of the Republic of Uganda and to sign all notices, authorisations deeds, requisitions and communications in any matter or proceeding in respect thereto.

2. To do any act or acts that may seem necessary for the purpose of achieving any of the objective herein above mentioned.…"

The power of attorney was issued on 11 February 2008. In the affidavit in support of the application a copy of the powers of attorney is attached as annexure "A".

A resolution of the point of law rests on the interpretation of the powers specified in the powers of attorney quoted above. The Applicants Counsel strongly submitted that the court should look at the back ground to the application because it was a continuation of a trademark dispute. I have carefully considered this submission and I do not agree. It is true that proceedings were commenced against the Applicant. The first fact is that VG Keshwala and sons, which filed the main suit was found to be a nonentity. This was in High Court Civil Suit Number 43 of 2010 against the Applicant/intended appellant. The basis of the suit is an action for infringement of the Plaintiff's trademark and passing of the Plaintiff’s goods or goods consigned to the Defendant as goods of the Plaintiff. It also included a claim for unlawful interference with the Plaintiff’s right in the Mark as the sole registered user.

The Plaintiff’s action was not dismissed as such. There was an application to withdraw the Plaintiff's suit by the Plaintiff's Counsel and the decision of the court on the matter was delivered on the 23rd of May 2014. The Plaintiff's Counsel informed the court that during preparation for pre-trial conferencing it became apparent to them as officers of the court that the party filed this suit did not exist in law. I held that because the non-existent but it cannot sue, it followed that they cannot apply for withdrawal of the suit. This suit was a nullity. Secondly for the same reason the counterclaim of the Defendant against a nonentity could not be sustained. What was left was the counter claim by way of an original suit against the registrar of trademarks in registering the trademark in contention in the names of the nonentity.

From the ruling of the court it is apparent that the main matter in contention in this suit related to the registration of a trademark in the names of the alleged nonentity. That is where the matter ended. Not issue was raised about the capacity of the Defendant’s Abdul Jamal by power of attorney to represent the Defendant who is also the Applicants in this application. However, the draining of the registrar of trademarks clearly demonstrates that the dispute was about trademarks.

Going back to the power of attorney in contention, the Defendant already got an order for payment of costs by one Viram Giga Ranmal Keshwala. Raising the question of authority by necessary implication also tends to challenge previous proceedings based on instructions given by the attorney of the Applicant.

The wording of the power of attorney in paragraph 1 thereof enables the attorney register on behalf of the Applicant his name the trademark in "baby" wax safety matches in the territory of the Republic of Uganda and to sign all notices, authorisations deeds, requisitions and communications in any matter or proceeding in respect of the. I want to emphasise the words "any matter or proceeding in respect thereto". These words mean any matter or proceeding in respect to the registration of the Applicant with regard to the trademark comprised in "baby" wax safety matches. The expression "proceeding” includes any proceeding relating to the said registration.

A legal framework under the Trademarks Act chapter 217 laws of Uganda for registration of trademarks include hearings before the registrar of trademarks. They also include the right to apply to a court of law to review the registrar’s decision under section 50 and 52 thereof. So the word "proceedings" includes proceedings before the registrar of trademarks in respect of registration or proceedings in a court of law in respect of registration of a trademark. This is given made clearer by the regulations. The Trademarks Rules Statutory Instrument 217 – 1 and regulation 46 thereof made provision for opposition within 60 days from the date of advertisement in the Gazette of an application for registration of a trademark. Upon receipt of the opposition the Applicant may file a counterstatement. Evidence may be given in support or opposition of the application for registration and hearings are conducted under regulation 54. Appeals may be made to the court under regulation 115 of the said regulations.

Under the new Trademarks Act, Act 17 of 2010, upon publication of an application for registration of a trademark in the Gazette, any person may object to the registration of the published trade Mark by notice in writing under section 12 thereof giving the grounds of objection. The Applicant is entitled to file a counterclaim or statement to the objection and the registrar may determine the matter. Any aggrieved party may appeal to the court against the decision of the Registrar of Trademarks. In the premises the law of trademarks and particularly procedure related to registration of trademarks envisages proceedings either before the registrar of trademarks or before a court of law in respect to the issues arising from the registration or intended registration. The Act also deals with passing off actions as well as infringement of trademark.

The power of attorney in this matter was issued on 11 February 2008 and expression "any matter or proceeding" in respect to the power to register the name of the Applicant for the trademark "baby" wax safety matches, includes proceedings before the registrar of trademarks and proceedings in a court of law in respect of the Applicants intention to have such registration.

In the premises clause 1 and 2 of the power of attorney authorising Mr Abdul Jamal to apply for registration of the Applicant in respect of the trademark comprised in "baby" wax safety matches in Uganda and to do any other act which is necessary for purposes of having that the registration which include bringing proceedings in respect thereof. The facts are that the "baby" wax safety matches could not be registered and there was a dispute as to whether they would be registered in the territory of Uganda. The non-entity had filed an action contending that the trademark "TOTO" which in the local dialect means "baby" was its own trademark. That the Defendant who is the Applicant was trying to pass off its goods as that of the Plaintiff by importing "baby wax matches". Consequently the context of the powers of attorney permitted Mr Abdul Jamal to file an action for registration and to contest anybody from opposing such registration through court action so as to enable the Applicant have the trade Mark registered in Uganda. Those would be incidental unnecessary powers to the power to register the trademark in Uganda.

In the premises the Respondent’s preliminary objection is overruled. I will proceed to deal with the merits of the Applicant’s application.

I have carefully considered the application for extension of time on the ground of inadvertence of the Applicants Counsel to file the appeal in the names of a non-entity. The crux of the opposition to the application is that there was no inadvertence and the Applicant is deemed to be aware of the fact that the Respondent and the appeal was a nonentity.

From my assessment of the evidence, the Applicants Counsel made a bona fide mistake. It should be noted that it was the lawyers of the Plaintiff who drew the attention of the court to the fact that VG Keshwala and Sons which was the Plaintiff was a nonentity in that it was not registered. They felt it was the duty to bring the matter to the attention of the court whereupon the Defendants Counsel also agreed. Pursuant to the declaration that this suit was a nullity, the question of costs was considered. Mr Viram Giga Ranmal Keshwala who was the person behind instructions of the Plaintiffs lawyers and rule had filed numerous affidavits in various proceedings was held to be responsible for the costs and costs were awarded against him.

Upon the costs be taxed, the Defendant was aggrieved and filed an appeal in the names of VG Keshwala and Sons. The appeal was struck out because VG Keshwala and sons cannot be a Respondent after the declaration that it was a non-entity. Subsequently the Applicant filed this application for extension of time to file the appeal in the names of Viram Giga Ranmal Keshwala against whom costs had been awarded and taxed by the taxing master.

I agree that in an application for extension of time what the court considers is whether there is sufficient cause for extension of time. An application for extension of time is ordinarily made under Order 51 rules 6 of the Civil Procedure Rules which gives the court discretionary powers to enlarge time. In the case of Kampala Capital City Authority versus Kabandize and others, Supreme Court civil application number 21 of 24, the court considered rules 2 (2), 5 and 43 of the rules of the Supreme Court. Specifically the court considered whether there was sufficient reason to justify grant of extension of time. It was held that omission, mistake or inadvertence of Counsel constitutes "sufficient reason" to justify extension of time. The wording of Order 51 rules 6 of the Civil Procedure Rules is however different from that of the Supreme Court Rules in that rule 6 provides as follows:

"Where a limited time has been fixed for doing any act or taking any proceedings under these rules or by order of the court, the court shall have power to enlarge the time upon such terms, if any, as the justice of the case may require"

Appeals are filed under the Advocates (Taxation of Costs) (Appeals and References) Regulations S.I 267 – 5. Regulation 2 thereof provides that an appeal means an appeal to a judge of the High Court brought under section 62 (1) of the Act.

The difficulty with the Applicants application is that it goes against judicial precedents to enlarge time under section 62 (1) of the Advocates Act. Section 62 (1) (supra) provides that any person affected by an order or decision of the taxing officer may appeal within 30 days to a judge of the High Court who on the appeal may make any order that the taxing officer might have made. It has been held that there is no jurisdiction to enlarge time prescribed by section 62 (1) of the Advocates Act cap 267.

The Applicants application is an application for enlargement of time prescribed by section 62 (1) of the Advocates Act.

In the case of Katamba Philip and 3 others versus Magala Ronald Arbitration Cause No 003 of 2007 Honourable Lady Justice Irene Mulyagonja held that there was no jurisdiction to enlarge time of 30 days prescribed by section 34 of the Arbitration and Conciliation Act because the statute made no provision for enlargement of time. Section 34 (1) of the Arbitration and Conciliation Act provides as follows:

"Recourse to the court against an arbitral award may be made only by an application for setting aside the award under subsection (2) and (3)"

Under section 34 (3) it is provided as follows:

"An application for setting aside the arbitral award may not be made after one month has elapsed from the date on which the party making the application has received the arbitral award, or if a request had been made under section 33, from the date on which the request had been disposed of by the arbitral award".

The ruling echoes the case of Makula International Ltd vs. His Eminence Cardinal Nsubuga and Another [1982] HCB 11. In that case the Court of Appeal (Now the Supreme Court) held that a court has no residual or inherent jurisdiction to enlarge a period of time fixed by statute and extension of time by the High Court Judge in that case was a nullity. (See holding No 11). An application for extension of time to appeal against the taxation decision of the taxing master was made under section 65 (5) of the Advocates Act (before revision). The Court of Appeal of Uganda which was the Highest Appellate Court then held as follows:

“It is well established that a court has no residual or inherent jurisdiction to enlarge a period of time laid down by statute. See Osman versus United Insurance Company Limited [1968] EA 102 at page 104 and Pritan Kaur vs. Russell and Sons Ltd [1973] 1 All E.R. 617 at 622. Consequently Manyindo J’s order extending the time within which to appeal, several months after the expiry of the statutory period, was made without jurisdiction. It is a nullity and must be set aside. It follows, therefore, that the appeal which was heard by Khan Ag. J is incompetent.”

From the above decision which is binding on the High Court, there is no jurisdiction to enlarge time prescribed by section 62 (1) of the Advocates Act to appeal a decision of the taxing master out of time. For that reason the application for extension of time cannot be granted because it is incompetent and made to the court which has no jurisdiction to grant the order. It is accordingly struck out with no order as to costs as both parties did not address the court on the question of jurisdiction.

Ruling delivered in open court on 19 June 2015

 

Christopher Madrama Izama

Judge

Ruling delivered in the presence of:

Kasiisa Ronald Counsel for the Respondent

Nakiranda Rebecca for the Applicant

Parties are absent

Charles Okuni: Court Clerk

 

Christopher Madrama Izama

Judge

19/6/2015