THE REPUBLIC OF UGANDA

THE HIGH COURT OF UGANDA AT KAMPALA

(COMMERCIAL DIVISION)

HCT - 00 - CC - MA - 135 – 2012

(Arising from Civil Suit 329 of 2011)

THE PROCTER & GAMBLE COMPANY …...............................................                                                                                         APPLICANT

VERSUS

1. KYOLE JAMES MUTISHO
2. HAJJI KASAI ABDUL
3. SEDRA INTERNATIONAL LTD.  .............................................                                                                                                      RESPONDENTS

BEFORE:   THE HON. JUSTICE GEOFFREY KIRYABWIRE

R U L I N G

This is an application by way of motion brought under Section 98 of the Civil Procedure Act (CPA), Section 79 of The Trademark Act and Order 52 rules 1 to 3 of The Civil Procedure Rules (CPR).

It seeks Orders that

“ a)   The Respondents return the goods received from the Police in contempt of a court order issued under Miscellaneous Application No. 520 of 2011 ordering that the goods in custody of the Police be placed in the custody of the court.

1. The Application or its agents be permitted to enter upon the Respondent’s business premises and stores used by them for the purposes of
2. Inspecting the sanitary towels kept in the business premises, store and such places or parts of such places used by the Respondents for storage of goods;
3. Removal therefrom into the custody of this Honourable Court sanitary towels marked with the word “Always” which relate to infringement of the Applicant’s trademark.
4. A declaration that the Respondent’s acted in contempt of court when they took the goods which are a subject of an ongoing court case under Miscellaneous Application No. 520 of 2011.
5. Costs … ”

The application is supported by the affidavit of Mr. Idris Musa Shoko the key Account Manager in Uganda for the Applicant.

The brief facts to the application are that the Applicant states that it is the registered owner of the “Always” trademark used for sanitary towels (thereinafter called “the goods”). 

It is the case for the Applicant that through its private investigations, it established that the Respondents were infringing its trademark.  It then caused the police to seize the said from the premises of the Respondent which were then put into police custody.  The Applicant then filed H.C.C.S. No. 329 of 2011 against the Respondents (as Defendants).  Under the said head suit, the Applicant then filed M.A. No. 520 of 2011 seeking orders that the goods in the custody of the police be brought under the custody of the court by way of an Anton Pillar order.  This court granted the said order on the 14^th October 2011.  The order was for 7 days which expired but was later renewed and served on the Respondents.  However, the Applicants state that in contempt of the court order, the Respondents removed the goods from the custody of the Police to the prejudice of the head suit.

At the hearing the Applicant was represented by Mr. R. Asiimwe while the Respondent was represented by Mr. D. Matovu.

In reply to the motion Haji Kasai Abdul the second Respondent filed an affidavit in reply.  Haji Kasai stated that the Respondents were business rivals to the Applicant who routinely used the police without court orders to raid their stores and impound sanitary towels.  He in particular referred to raids in February 2011.  Haji Kasai further deponed that both the Directorate of Public Prosecutions (DPP) and Uganda National Bureau of Standards (UNBS) investigated the said goods while in police custody and found no reason for their continued detention.  Haji Kasai further deponed that whereas this court on the 12^th October, 2011 ordered for the said goods in police custody to be placed in court, it later transpired that there was no space at the court to keep the said goods. 

The Registrar of this Court then ordered that alternative neutral storage be found at the cost of the Applicant.  He stated that as at the 8^th February, 2012, the goods had still not been placed under the custody of court and yet they were getting spoilt.

Haji Kasai then took the initiative to approach the CID at Kibuli and explained the state of affairs.  The CID then summoned the Applicant’s agents one Njoroge and Muntu together with their lawyer Mr. Were to discuss the matter.  He stated that it was agreed that the goods be released provided the Respondent did not import any other sanitary towels.  Haji Kasai deponed that the sanitary towels recovered from the police were mostly in poor condition and hence were destroyed while the rest were sold off by him at a loss.

Mr. Shoko in his affidavit in rejoinder denies his agents one Njoroge and Musa consented to the release of the said goods.  He also denies that his lawyer Mr. Were was a party at the meeting.  Mr. Shoko further deponed that the goods when released from the police should have been taken to court immediately as ordered instead of being destroyed and or sold.

Counsel for the Applicants submitted that his client’s case had been greatly prejudiced by the selling of goods and that the Respondents should be found to be in contempt of the court with the necessary consequences of that.

Counsel for the Respondent however submitted that the application had been brought in bad faith as the parties had agreed to have goods released provided the Respondent did not import more such goods.

I have perused the motion filed and considered the submissions of both counsels for which I thank them.

There are several prayers sought by the parties to this application.  However, the main thrust of arguments revolved around the question of contempt of court.  The law relating to contempt of court in these circumstances was recently discussed by The Hon. Lady Justice Irene Mulyagonja in the case of Stanbic Bank (U) Ltd & Jacobsen Power Plant Ltd V Uganda Revenue Authority M.A. 42 of 2010.

In that case Justice Irene Mulyagonja observed that unlike the United Kingdom which has the contempt of Court Act (1981), Uganda has no similar legislation save for what is provided for under Section 107 of Penal Code Act.  The learned Judge in defining what contempt of court means and its purpose relied on decision of Salmon LJ in the case of Jennison V Baker [1972] 1 All E.R 997 (at pages 1001 – 1002).

In that case Salmon LJ makes the point that power to find contempt of court exists to ensure that justice shall be done and solely to this end and held.

            “… it prohibits acts and words tending to obstruct the administration of justice …”

Black’s Law Dictionary 7^th Edition p. 313 defines contempt as a disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behaviour or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair respect due to such a body.  Lord Justice Salmon in the case of Jennison (supra) observed that there are many form of contempt but these may broadly be classified as criminal or civil contempts. 

To my mind, criminal contempt is where Section 107 of the Penal Code Act comes in.  With regard to civil contempt and the application of its principles in Uganda, Justice Mulyagonja in Stanbic Bank (supra) held that; it is a common law misdemeanor to be applied by virtue of Sections 14 (2) (b) and (c) of The Judicature Act.

In this case it has been stated that there was an order of this court to have the good placed in court but the Respondents instead disposed of the goods inter alia because they  had stayed long with the police.  Justice Mulyagonja again in the Stanbic Bank case (supra) emphasized the importance of complying with court orders.  In this regard, she relied on the case of Hadkinson V Hadkinson [1952] All ER 567.

In that case Romer LJ held that “Disregard of an order of court is a matter of sufficient gravity, whatever the order may be …”

Romer LJhimself relied on the case of Chuck V Cremer (1 Coop Temp Cott 342) where it was held that

“A party who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it … it would be most dangerous to hold that suitors, or their solicitors, could themselves judge whether order was null or void – whether regular or irregular.  That they should not come to the court and not take (it) upon themselves to determine such a question.  That the course of a party knowing of an order, which was null or irregular and who might be affected by it, was plain.  He should apply to the court that it might be discharged.  As long as it existed it must not be disobeyed …”

In other words if a party has a challenge with a court order he should apply to have it set aside instead not disobey it.  The consequences of civil contempt are well explained in Halsbury’s Laws of England Vol. 9(1) at Para 492 where it is stated that

“ … Civil contempt is punishable by way of committal or by way of sequestration.  The effect of the writ of sequestration is to place, for a temporary period, the property of the contemnor into the hands of sequestrators, who manage the property and receive rents and profits.  Civil contempt may also be punished by a fine or an injunction may be granted against the contemnor …”

In his submissions to court, Counsel for the Applicants sought to rely on Section 64 of the Civil Procedure Act (CPA) for the meaning and consequences of contempt of Court.  I with respect find that to have been a misdirection.  I find that the scope of Section 64 of the CPA which provides for supplementary proceedings to prevent the ends of justice from being defeated to be of a much more limited scope than what civil contempt under common law provides.

That notwithstanding, Romer LJ in the case of Hadkinson (at P. 570 supra)held that a person can apply for the purpose of purging his contempt, he can appeal with the vies of setting aside the order on which this contempt is founded; he can be heard in support of a submission that having regard to the true meaning and intendment of the order which he is said to have disobeyed, his actions did not constitute contempt; and finally he is entitled to defend himself when some application is made against him.  Simply put to my mind this means that the alleged contemptor has a right to be heard to defend himself.

In this case the second Respondent acknowledges this court order but attempts to explain himself in his affirmation in reply dated 13^th April 2012 at para 14-17.  He states that by the 8^th February 2012, the goods had not been put in the courts custody by the Applicants and yet they were getting spoilt and there were no prospects of the main suit ever being heard.  I find this to be a very weak explanation in order to disobey a court order.  The Applicant could have applied to court to set aside or vary its order but they did not.

He further (at Para 15 of the affidavit) depones that on the 24^th February, 2012, he approached the Director of the Criminal Investigations Department (CID) at Kibuli (where the goods were being held) to intervene into the state of affairs of the goods.  He states that the Director CID summoned the Applicant’s agent one Njoroge and Muntu with their lawyer Mr. William Were and explained the impending release (sic) of the goods to the Respondent.  The Respondent deponed that that the said agents of the Applicant did not object to the release provided the third Respondent did not to import more of the said goods.  In para 17 of his affidavit the third Respondent indicates that it does not intend to import more of the said goods.  The said goods were then released by the police and allegedly sold at a loss.

Mr. Shoko the key account manager for the Applicant company in his affidavit in rejoinder filed on the 8^th May, 2012 depones that he was informed by both Njoroge and Muntu that the meeting took place but without their lawyer.  He further denies that the parties agreed to the release of the goods.  It is important to note that the three persons referred to namely; Njoroge, Muntu and Counsel Were did not file affidavits to clarify these matters This was not helpful to court.  The Applicant also do not deny that Njoroge and Muntu are their agents nor that said meeting at Kibuli took place.

That being the case it would appear that on the evidence before the agents of the Applicant and the Respondents may have reached a compromise to have goods released provided no more were imported into the country by the Respondents.  That to me is clearly untidy.  The Applicants and its agents had the benefit of having this court’s orders on their side I cannot understand why they would work against it in the same breath.  I find it hard to believe the police would have released the goods without this compromise being reached.  That was clearly a settlement out of this court by all the parties.  In so doing, the Applicants acted with the Respondents to purge them of the contempt.  The allegation of contempt cannot hold in these circumstances and I accordingly so find.

As to the other prayer that the Applicants again be permitted to enter into the Respondent’s business premises and store to look for more sanitary towels that could be infringing the Applicants trademark, I think this requires caution.  This application is made under Section 79 of the Trademark Act and from the wording of that Act is clearly discretionary.  I do not think that the Applicants made good use of the last order of this court and it would not be just and equitable that a fresh order be made in the same circumstances.  The Applicant in my view has to bring fresh evidence of an alleged infringement.  I accordingly decline to make the order as prayed.

All in all, the motion stands dismissed.  As to costs since release of the goods was as a result of a compromise, I order each party to bear its own costs.

…………………………………….

Justice Geoffrey Kiryabwire

JUDGE

Date: 16/05/2012       

16/05/12

10:11 a.m.

Ruling read and signed in open court in the presence of;

• D. Matovu for Respondent
• D. Asiimwe for Applicant

In court

• Second Respondent
• Mr. Shoko for Applicant
• Rose Emeru – Court Clerk

…………………………………

Geoffrey Kiryabwire

JUDGE

Date:  16/05/2012