By a Notice of Motion dated 19th August 2008 and filed on the same day, the appellant objected to the taxation of the respondent's Bill of Costs on the ground that the respondent's advocate, Mr. Patrick lkimire was not qualified as Counsel or agent of the respondent as he had not been validly appointed as an agent as required by Rules 4 and 41 of the Tribunal Rules.
The appellant alluded to Regulation 62 of the Industrial Property Act as requiring that only natural persons who are advocates are appointed as agents as opposed to firms. On the other hand, the respondent stated that Mr. lkimire was validly on record having filed the necessary documents and that the issue of his qualification as an advocate was not canvassed.
1. Whether the Respondent’s Advocate was validly on record as an agent as alluded to under Regulation 62 of the Industrial Property Act?
RESOLUTION OF ISSUES
The Tribunal found that Regulation 62 of the Industrial Property Regulations sets out the requirements
to be fulfilled by a person being appointed as an agent to practice in the Institute as opposed to the Tribunal. That the regulation did not relate to the matter at hand.
Rule 41 provides that a person may be represented before the Tribunal by an agent in respect of a matter
where "(a) an appointment of the agent in respect of the matter has been filed with the Tribunal and (b)
the agent is an advocate". Sub-section 2 of that Rule provides that the appointment of an agent shall be in Form IPT 26.
It is therefore clear that a person can only practice before this Tribunal where he is an advocate and has
filed the appointment of agent Form IPT 26. This means that if a person does not have a practicing certificate then they cannot be admitted as an agent and if they were admitted, then all the pleadings signed and filed by that person would be null and void ab initio.
There was no evidence on record to show that the respondent’s advocate did not have an advocate's practicing certificate as at the time he signed and filed the pleadings and in the course of this hearing.
Rule 41 of the IPT Rules does not substitute Form IPT 26 for the advocate's practicing certificate and one
must have both.
It was incumbent upon the Tribunal Secretary to ensure that parties adhere to the Rules relating to filing of documents and that all filing fees are paid accordingly. The Tribunal ordered that form IPT 26 be deemed as filed in all 5 Appeals as this form was accepted.
Further, the Tribunal stressed that litigation be canvassed and adjudicated upon without too much resort to
technicalities as far as practically possible, in order to meet the ends of justice in a fair manner, unless of course such technicalities go to the root and substance of the matter.
The Notice of Motion was dismissed with costs to the respondent