Polypet Packaging Industries Limited v O G Plastic Industries (2008) Limited (1 and 2 of 2016) [2016] MWCommC 493 (11 May 2016);

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IN THE HIGH COURT OF MALAWI

COMMERCIAL DIVISION

BLANTYRE REGISTRY

COMMERCIAL APPEALS NUMBER 1 AND 2 OF 2016

POLYPET PACKAGING INDUSTRIES LIMITED                                                     APPELLANT

VERSUS

O G PLASTIC INDUSTRIES (2008) LIMITED                                                        RESPONDENT

CORAM:

HON. JUSTICE J. N. KATSALA

A. Msowoya and Chibwe, of counsel for the Appellant

T. Mwabungulu, of counsel for the Respondent

J. Kachilambe, Court Clerk

RULING

This is an application by Polypet Packaging Industries Limited (hereinafter "the applicant") for an order staying two orders made by the Deputy Registrar of Designs on 13 December, 2015 and 12 January 2016 cancelling and expunging from the register of designs the applicant's designs pending the determination of its appeals against the orders. At the hearing of the application the respondent raised the following preliminary objections:-

1.   "The Notice of Motion for Stay is irregular and procedurally defective as no appeal from the Registrar of Designs lies to the High Court.

2.   The Notice of Motion for stay pending appeal is not properly before the Court as the proceedings herein emanate from the decision of the Registrar of Designs.

3.   The intended appeal which the Notice of Motion for stay pending appeal is based on is premature, incompetent, an abuse of the Court process and defective for want of jurisdiction."

The respondent thus prayed for the dismissal of the Notice of Motion for stay and the appeals lodged with the Court.

The facts of the matter are that on 13 December 2015 and 12 January 2016 the Deputy Registrar of Designs (hereinafter "the Registrar") cancelled and expunged from the register of designs the applicant's designs registered numbers MW/D/2015/00015 and MW/D/2014/00025, respectively, on the ground that they were not designs as enshrined under section 2(2) of the Registered Designs Act. This was upon two applications made by 0. G. Plastic Industries (2008) Limited (hereinafter "the respondent"). The applicant is dissatisfied with the Registrar's decisions and has filed appeals in this Court seeking a reversal of the two decisions. The applicant also took out applications for an order staying the execution of the Registrar's decision pending the determination of the appeals. However, the respondent raised a preliminary objection to both the appeals and the applications for stay on the grounds aforesaid. Seeing that the issues in both appeals are the same, it was agreed that the appeals be consolidated and be dealt with jointly. This ruling relates to the preliminary objection.

It is argued by the respondent that under the Registered Designs Act appeals against the decisions of the Registrar lie to the Patents Tribunal (hereinafter "the Tribunal") and not to the High Court. It is the appeals from the Tribunal that lie to the High Court. Consequently, the appeals lodged by the applicant in this Court have been lodged in the wrong forum and the Court is not competent to entertain them. In the same vein the applications for stay of execution of the decisions of the Registrar ought not to be entertained by this Court because they are irregular being based on irregular appeals.

On the other hand, the applicant, whilst accepting that indeed ordinarily the appeals should have been lodged with the Tribunal invites the Court to take notice of the fact that the Tribunal has not been empanelled by the Minister since the enactment of the Patents Act and the Registered Designs Act. It is therefore argued that it would be absurd for the applicant to lodge an appeal before a tribunal that is basically not operational or indeed non-existent. The current situation leaves a person dissatisfied with a decision of the Registrar with two options, namely, either to forfeit his right of appeal or to proceed to appeal to the High Court which in essence from sections 35 and 46 of the Registered Designs Act can exercise similar powers as those of the Tribunal.

It is further argued by the applicant that the Constitution clearly states that everyone shall have access to a court of law or tribunal for a final settlement of legal issues. The question then is, if there is no such tribunal (in the sense that it has not been empanelled) for one to go to for the final settlement of his rights, should one suffer injustice due to this? In the applicant's view, the answer should be in the negative. That person must go to the next available forum for his rights to be determined. One would not think that the law would be so blind as to let one suffer because of the unavailability of a forum that it has provided for. Where the forum provided for is non-existent, the law would expect that person to proceed to the next available forum, in the present case, the High Court, for a final settlement of the legal issues. The appeals are thus not in the wrong forum and this Court is competent to entertain them. It is so submitted.

Section 35 (1) of the Registered Designs Act provides that "where the Act provides for an appeal from the decision of the Registrar, such appeal shall be made to the Tribunal". Under section 2 (1) of the same Act, the Tribunal is the Patents Tribunal established under the Patents Act. Section 74 of the Patents Act provides as follows:

(1)        "For the purposes of hearing and determining appeals in accordance with section 73 and of exercising the other powers conferred upon it by this Act, there is hereby established a Patents Tribunal, which shall consist of a Chairman appointed by the Minister.

(2)        The Chairman shall be a person who-

(a)        has been a judge of a court having unlimited jurisdiction in civil and criminal matters in some part of the Common-wealth; or

(b)        is and has for not less than ten years been qualified and entitled to practise as an advocate or barrister in any court or courts having such jurisdiction.

(3)        The Patents Tribunal shall sit at such times and places as it may appoint.

(4)        There shall be paid to the Chairman such remuneration and allowances as the Minister may determine with the approval of the Minister of Finance.

(5)        The Minister shall appoint a registrar of the Patents Tribunal and such other officers thereof as he may deem necessary."

The applicant has produced before this Court a certificate dated 10 March 2016 issued under the hand of the Minister certifying that the Tribunal provided for under this section has not been empaneled and that no Chairman or registrar of the Tribunal have been appointed. The Minister has not indicated whether he intends to empanel the Tribunal or not, or if he intends to do so, when.

The question I am called upon to determine is whether in these circumstances this Court should assume the jurisdiction of the Tribunal and entertain the appeals from the decisions of the Registrar.

Section 108 of the Constitution provides:

"(1) There shall be a High Court for the Republic which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law.

(2) The High Court shall have original jurisdiction to review any law, and any action or decision of the Government, for conformity with this Constitution, save as otherwise provided by this Constitution and shall have such other jurisdiction and powers as may be conferred on it by this Constitution or any other law."

Indeed there is no doubt about the unlimited original jurisdiction of the High Court as is clearly provided for in the Constitution. The question is whether in view of such unlimited original jurisdiction it means that the High Court can entertain every matter that is brought before it.

In Kaundama v Attorney General [2002-2003] MLR 129 the High Court found in favour of the appellant on his claims for damages for false imprisonment and malicious prosecution but refused to award him damages because in the opinion of the judge the matter fell within the jurisdiction of the National Compensation Tribunal under section 138 (1) of the Constitution. He appealed to the Supreme Court of Appeal which held that the judge was right in holding that he had no jurisdiction to assess damages. It also held that section 138 (1) of the Constitution is an exception to the provisions of section 108 (1) of the Constitution. The Justices of Appeal said at 132 and 133:

"We agree with Counsel for the appellant that section 108 (1) of the Constitution gives the High Court of Malawi unlimited original jurisdiction to hear and determine any civil or criminal proceedings under any law. However, the wording of section 138 (1) gives exclusive original jurisdiction to the National Compensation Tribunal to deal with cases like the present one as provided therein. This is an exception to the general rule contained in section 108 (1) of the Constitution....

We further note that section 138 (1) of the Constitution gives power to the National Compensation Tribunal to remit a case or a question of law for determination by the ordinary courts where the National Compensation Tribunal is satisfied that the Tribunal does not have jurisdiction, or where the Tribunal feels it is in the interests of justice to do so. It is clear from this section that the cases which fall within the jurisdiction of the National Compensation Tribunal can be referred to the High Court if the Tribunal feels that it is in the interests of justice to do so or where the Tribunal has no jurisdiction. Therefore the jurisdiction of the High Court is not ousted"

I entirely subscribe to the reasoning by the Supreme Court of Appeal. Since the Constitution gave exclusive original jurisdiction over cases involving abuses of power by the Government prior to the coming into force of the Constitution to the National Compensation Tribunal, it was only right and proper that the National Compensation Tribunal handles such cases except where it felt it had no jurisdiction or referred such cases to the High Court.

I think it is important to mention that the jurisdiction that is unlimited is original jurisdiction which by implication means that its appellate jurisdiction may suffer limitation. The jurisdiction that this Court is called upon to exercise in the present matter is not the original but appellate which is expressly conferred by section 46 (1) of the Registered Designs Act as follows:

"Any party to any proceedings before the Tribunal may appeal in accordance with rules made under this Part from any order or decision of such Tribunal to the High Court."

So the question of the High Court being a court with mandate to hear and determine any matter under any law does not arise. It is necessary to bear in mind that the Legislature in its undoubted wisdom chose to prescribe that appeals against the decisions of the Registrar must be made to the Tribunal and not the High Court. I am sure there was a good and valid reason for doing this. I do not have the background information about these provisions so I am not able to tell what the reasons might have been. And I do not wish to go into speculation. What is clear is that the Legislature decided that only appeals from the Tribunal should lie to the High Court. So there is a three tier structure that was created for the resolution of rights under the Registered Designs Act and the Patents Act.

There is no doubt that the language used in section 35 (1) of the Registered Designs Act is mandatory – “... such appeal shall be made to the Tribunal”. (Emphasis supplied). See New Building Society v Mumba [2001-2007] MLR 243. In my considered view there cannot be any option or negotiation regarding where the appeals should be made to. The language used is clear on the intention of the Legislature on where the appeals should be made to. And indeed the parties agree that in terms of the law the appeals lie to the Tribunal. However, as earlier said, the issue is whether in the absence of the Tribunal the appeals can be made to the High Court.

The Legislature expressly provided that appeals against the decisions of the Registrar must be made to the Tribunal and that appeals from the Tribunal must lie to the High Court. As I have already stated herein, the language used by the Legislature is not permissive. It is mandatory. It is thus my judgment that this Court does not have jurisdiction to entertain appeals against the decisions of the Registrar. Its jurisdiction is only in respect of appeals against the decisions of the Tribunal. I do not subscribe to the view that due to the non-empaneling of the Tribunal then the High Court should assume jurisdiction in the spirit of filling in the gap in the dispute resolution structure under the Registered Designs Act and the Patents Act.

The High Court is a court of law. I do not think it is the duty of the High Court to cover up for failures or lapses in the implementation of the law by those that are legally entrusted to do so. The fact that the Minister has, for reasons best known to himself, not empaneled the Tribunal does not render section 35 (1) of the Registered Designs Act or section 74 of the Patents Act invalid. I have searched in the two Acts and I have not found any provision which says that these sections will only be in force when the Tribunal has been empaneled. In my judgment had this been the intention of the Legislature it would have been expressly stated in the two Acts. To hold that section 35 (1) should be ignored because the Tribunal is not empaneled would be tantamount to amending the law. And we all know that that is not how the law is amended. Such 'amendment' would be unlawful. If the Minister is of the opinion that it is impracticable or impossible to empanel the Tribunal and that instead the High Court should handle the appeals from the decisions of the Registrar then the best thing to do is for the Minister to initiate an amendment to that effect. Otherwise, for as long as the law remains as it is the Tribunal must empaneled so that it can handle the appeals as dictated by the law.

It has been argued by the applicant that where the forum provided for under the law for the determination of rights is non-existent, the law would expect that person to proceed to the next available forum, in the present case, the High Court, for a final settlement of the legal issues. With the greatest respect, I do not subscribe to that line of thinking. Firstly, why should we fail to bring into operation a dispute resolution forum which is created under our own law enacted by our own Parliament? Surely if we are serious about the rule of law I cannot think of anything that can justify a failure to put such a forum into being. Secondly, should this Court sanction, condone or promote such failure or neglect by assuming and discharging the functions of the forum as an interim measure? I do not think so. This Court by law is mandated to uphold the law as long as that law is in line with the Constitution. There is no suggestion that section 35 (1) of the Registered Designs Act offends the Constitution. I do not see why this Court should not insist on its being complied with. This Court cannot therefore proceed in contravention of an express provision of the statute simply because it would be convenient to the members of the public to do so in view of the Minister's unexplained neglect of his responsibility under the statute. The Court's duty is to dispense justice according to the law and not convenience. In any case is it not obvious that if public officers neglect or abdicate from their duties members of the public who are beneficiaries of such duties will suffer? And should this Court really say that where there is such neglect or abdication, it will come in to salvage the situation in order to avert the suffering of the public? I do not think so. Rather, it is the duty of this Court to uphold the law as it stands on the statute book and where necessary ensure that public officers discharge their duties under the law. The citizen's right to an effective remedy provided for under the Constitution in my view entails an effective remedy according to law and not convenience or anything else. The law must be enforced without fear or favour, ill will or affection. That is the only way that we can ensure that justice is consistently dispensed to the citizens.

I asked counsel to research and find case authority to support the position advanced by the applicant. Unfortunately, none has been found that is apt. The cases were on the High Court's unlimited original jurisdiction vis-a-vis the subordinate court's original jurisdiction. See Malawi Telecommunications Ltd v Telecommunications Workers Union Civil Cause No. 2721 of 2001 (unreported) and cases cited therein. So in the absence of authority suggesting to the contrary, and for the reasons I have given herein it is my judgment that the High Court does not have jurisdiction to hear appeals against the decisions of the Registrar. It is only the Tribunal which has that jurisdiction. And that the jurisdiction of the High Court is to hear appeals against the decisions of the Tribunal. In the circumstances this Court is not competent to handle the appeals lodged by the applicant. Likewise this Court is not competent to entertain the applications for an order staying the execution of the decisions of the Registrar pending the determination of the appeals. I say this also bearing in mind section 35 (2) and (3) which provide as follows:

(2)        The Tribunal shall in connexion with any proceedings before it under this Act have all the powers of the High Court and without prejudice to the foregoing and to the other powers conferred upon it by this Act the Tribunal shall have power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of court which the High Court has power to make.

(3)        The procedure and practice of the Tribunal shall, save as otherwise provided for by rules made under this Part, be those prevailing in the High Court, in so far as the same are applicable, and if any matter should arise which is not contemplated by such procedure, practice or rules, the Tribunal may give instructions regarding the course to be pursued which instructions shall be binding on all parties.

Clearly the Tribunal has all the powers of the High Court as such it also has the power to stay the execution of a decision of the Registrar or indeed its own decision pending the determination of an appeal or otherwise just like the High Court has such powers under Order 47 and 59 of the Rules of the Supreme Court, among others. So having no appellate jurisdiction over decisions of the Registrar, I do not see how the High Court can then have jurisdiction to make the order staying execution of the Registrar's decision. I do not think such interpretation would be supported by the provisions of the Registered Designs Act or the Patents Act. I am in no doubt that had this been the intention of the law makers they would have expressly said so in the Acts or in one of them.

On the foregoing I uphold the respondent's preliminary objection. The applicant will bear the costs of these proceedings.

Made at Blantyre this 11th day of May, 2016.

_________________

J N KATSALA

JUDGE