THE Court of Appeal has dismissed an appeal by a firm owned by a Tanzanian Tycoon, Said Salim Bakhresa, in over 1.5bn/- disputed payments to Agro Processing and Allied Products Limited for use of 'POA' trademark.
Justices Salum Massati, William Mandia and Semistocles Kaijage ruled in favour of Agro Processing Company after upholding an objection raised by counsel for the company, Dr Masumbuko Lamwai, to question the competency of the appeal. "It is therefore our finding that the preliminary objection has merit.
We accordingly uphold the same and declare that the appeal is incompetent and proceed to strike it out with costs," the justices declared. Dr Lamwai had argued in the objection that the record of appeal was incompetent in that some of important documents of the trial court were not included, including a ruling on the application for temporary injunction dated September 10, 2004 and an application for review.
Other missing essential documents in the appeal, according to Dr Lamwai, include a ruling on the preliminary objection that was delivered on November 14, 2002 and an application which was struck out on November 15, 2010, by the trial court.
In the appeal, the appellant company, Said Salim Bakhresa and Company Limited, was challenging a judgment given on April 4, 2011, by Bernard Luanda, then Judge of High Court's Commercial Division, requiring the company to pay Agro Processing company the sum for infringement of the trademark.
Referring to some decisions, including from Kenyan Court of Appeal, the justices held that the omission to include in the record of appeal some documents without seeking leave to exclude them renders the records defective.
"It has also been held that in our view interlocutory proceedings and documentary exhibits made and received before the decision appealed against are primary documents," they said.
The justices noted that the bottom line was that whether or not the appellant (Bakhresa Company) considers them relevant or essential for determination of the appeal they could best be considered before the Registrar or Justice of Appeal.
"There the decision could best be made upon full arguments from the parties. The rationale is that now that since the said documents are not before the court it is difficult for this court to decide whether or not they are relevant," they said. During the trial, the word 'POA' had sparked off the dispute.
Agro Processing Company had claimed to have exclusive rights over the word in question as its trademark following registration with the Registrar of Trade and Service Mark. Facts of the case show that both companies carry on the business of maize and wheat flour milling and packaging.
On March 5, 2001, Agro processing company registered with the Registrar its trademark going by the name 'POA.' In June 2001, Bakhresa Company attempted to register its intended trademarks namely 'SEMBE POA,' 'UNGA POA' and 'NGANO POA,' paying the necessary fees, namely disclaimer and association fees.
But the Registrar of Trademarks refused to register them because the mark POA has already registered. It is the evidence of Bakhresa Company that since their applications were received by the Registrar, paid necessary fees and there was no objection registered, they proceeded with the business in selling their commodities inscribed with the word 'POA' after advertising notwithstanding the refusal by Registrar.
Agro Processing decided to take the matter to court demanding, among others, some perpetual injunctions and payment of damages. On the other hand, Bakhresa Company raised a counter claim to the effect that Agro processing had no exclusive rights over the word POA.
Having heard the evidence from both parties, Judge Luanda ruled in favour of Agro Processing Company and, among others, ordered Bakhresa firm to pay 739,393,028/- plus interests at court rate per annum from the date of filing the suit in 2004 until the date of judgment and further interest to full payment.