He concluded that for reasons stated above, court should find the applicant’s affidavit materially
defective, null and void and dismiss the application with costs.
Counsel for the applicant in rejoinder, on procedure and evidence, submitted that sections 45 and
46 of the Trademarks Act, 2010 provide for application to court and under Order 52 rule 1 of the
CPR applications whose procedures are not provided for shall be by notice of motions. He
contended that, that was the procedure provided for by the legislature and it was not upon the
respondent to suggest otherwise.
On the contention that the affidavit in support were on matters not within the deponent’s
knowledge, counsel for the applicant contended that matters which the deponent swore to were
well within his experiences as business agents of the applicant. He argued that the deponent was
directly involved as to confirm the contents of paragraphs 1, 2, 3, 6, 7, 8, 9, 10, 11, 12, 13, 14,
15, 16, 17, 18, 19, 20, 21, 22 because they concern the market situation in Uganda where the
deponent’s business is based.
He referred to the case of MB Nadala v Father Lyding [1963] 1 E.A 706, where Sir Udo Udoma
CJ, held that since the content of the affidavit related to personal activities of the deponent, they
were facts within his knowledge.
As regards paragraphs 4 and 5 of the affidavit in support, counsel for the applicant submitted that
allegations that they were facts not within the deponent’s knowledge would be taking a very
narrow and wrong view of what amounts to knowledge. He argued that knowledge was capable
of being obtained in so many ways as was observed by Mukasa J, in Green watch v Attorney
General and Another (2003) 1 E.A. 87 that knowledge can be acquired through human senses
like seeing, hearing, smelling, tasting or touching followed by understanding and perceiving
what one has sensed.
He contended that after years of dealing together, the deponent was provided with the original
and certified copies of certification of incorporation of the applicant company as well as
certificate of registration of its trademark that could be seen, touched or perceived by the
deponent thereby making him knowledgeable.
He submitted that the case of Charles Kabunga (Supra) was distinguishable from this one in that
the tripartite relationship of advocates, their clients and the court was at play in that the advocate
could not be a witness and counsel in the same matter and could not depone on especially
contentious matters. He contended that the position was different for agent-principal relationship
which involves promoting one another’s interest and as such full disclosure is required.
He further contended that there was no rule against agents swearing affidavits in representative
capacity but on the contrary authorities suggest that a person in representative capacity could
swear an affidavit on matters of another if they were aware of the facts. He cited the case of Joy
Kaingana per John Kaingana v Dabo Boubon (1986) HCB 59 to buttress this argument.
As regards the contention that the applicant lacked locus standi to bring this application because
it is not an aggrieved person, counsel for the applicant submitted that the applicant was clearly
affected by the registration of the respondent’s mark and as such it was an aggrieved person who
has suffered great economic loss. He referred to the case of Yusuf v Nokrach (1971) EA 104