He submitted that there was an exception to the general rule as provided under Order 19 rule 3
(1), but hastened to add, that only in interlocutory applications which was not the case here. He
contended that even if for argument’s sake, this application was taken to be an interlocutory one;
the deponent would still have to disclose his source of information and grounds for belief which
was not done in this application. To buttress these arguments, he relied on the cases of Bawa
Singh Bharj (Properties Limited) v Estate Consultants & Others (1998) KALR 918, Yafesi
Tegike v Jamada Wakafutuli (1996) KALR 435; Uganda Journalists Safety Committee & 2
Others v A.G (1997) KALR 381; Premchand Raichand Limited & Another v Quarry Services
of E.A Limited & Others (1969) E.A. 514
On locus standi, counsel argued in the alternative and without prejudice to his earlier submission
that, for this application to succeed, the applicant must prove to the satisfaction of court on a
balance of probability that the trademark is identical or resembles a trademark which was, prior
to the registration in Uganda of the trademark registered in respect the same goods, or the same
description of goods, in a country or place in which the goods originate.
He contended that the applicant could not be said to be a person aggrieved by the registration of
the respondent’s trademark in Uganda as is envisaged by section 45 (1) of the Trademarks Act
for two reasons. Firstly, that internationally the trademark TECNO was not owned by the
applicant but by a company called Inventio Ag as stated in the affidavit in reply and annextures
“C”, “C1”, “C2”, “D1”, and “D2” thereto. Secondly, that the applicant was not the registered
owner of the trademark of the goods sold in Uganda, in the country of origin.
He further contended that under section 103 and 104 of the Evidence Act, the onus of proving
that Hong Kong was the origin of the goods allegedly manufactured using the mark in issue laid
with the applicant which had dismally failed to do so. He further contended that evidence
available showed that the phones allegedly manufactured by the applicant and sold in Uganda
through their agent are actually manufactured in China not Hong Kong.
On the contention that China and Hong Kong are one and the same, he contended that for
purposes of trademark, Hong Kong and China mainland could not be said to be one country. He
submitted that evidence adduced by the respondent as stated in paragraphs 3 and 4 of the
affidavit in rebuttal and annextures thereto showed that Hong Kong enjoyed a high degree of
autonomy in all matters except foreign relations and military defence.
Counsel for the respondent further contended that for this application to succeed; the applicant
must prove that it is the registered owner of the mark TECNO in China mainland where the
goods/phones are manufactured/originate. He argued that since the applicant had failed to do so,
the respondent who is the registered owner of the mark in Uganda should remain so unless it is
removed from the register by order of court by another person for justifiable reasons.
On ex turpi causa non oritur action, counsel for the respondent contended that in light of the
evidence showing that Inventio Ag. was the registered owner of the mark TECNO, the applicant
was taking advantage of the special administrative position of Hong Kong vis-a-vis China
mainland and illegally using a trademark of another company. He argued that using the same
authority of Makula International Ltd (supra), the applicant should not be allowed to benefit
from its illegal act.