The Trustees of the Mukono Family Trust and Mukonitronics (Private) Limited v Karpeg Investments (Private) Limited T/A Kadir & Sons and Others

The plaintiffs, being the Trustees of the Mukono Family Trust and Mukonitronics (Private) Limited, issued summons against seven defendants alleging infringement of intellectual property rights. The first plaintiff (the Trust) had registered an industrial design on 31 July 2008 under the Industrial Designs Act [Chapter 26:02] relating to electrical components such as power inverters, fluorescent light fixtures, surge protectors, and solar lights manufactured by Mukonitronics. The plaintiffs alleged that the defendants infringed their exclusive rights under section 15 of the Industrial Designs Act by making, importing, selling or offering for sale articles in respect of which the design was registered. The first and fifth defendants filed an exception, arguing that the summons and declaration disclosed no cognizable cause of action because a trust, not being a legal person, cannot register a design under section 8 of the Industrial Designs Act, and therefore the registration was a nullity.

• Whether an exception was the proper procedural mechanism to challenge the validity of the design registration
• Whether a defect in the registration was apparent ex facie the pleadings
• Whether the matter should have been raised by way of a special plea rather than an exception
• Whether a trust, not being a legal persona, can validly register an industrial design under section 8 of the Industrial Designs Act
• Whether registration of a design in the name of a trust renders such registration a nullity at law

The exception was dismissed with costs.

1. An exception lies only where a defect appears ex facie the pleadings; where determination of the defect requires introduction of facts from outside the pleadings, the proper procedure is a special plea, not an exception. 2. Although a trust is not a legal persona and has no separate legal existence from its trustees, registration of an industrial design in the name of a trust is not a nullity because trust property vests in the trustees as individuals. 3. Trustees, being natural persons, are qualified to apply for registration of designs under section 8(1)(a) of the Industrial Designs Act, and there is no legal prohibition against registration in the name of a trust. 4. By operation of law, ownership of trust property, including registered industrial designs, vests in the individual trustees notwithstanding registration in the name of the trust.

The court referenced the case of Mafirambudzi Family Trust v Madzingira & Ors HH 338/14 to illustrate that trusts can own property, noting that in that case the court ordered transfer of immovable property directly to a family trust. While this supports the court's reasoning, it was not strictly necessary to the decision. The court also cited Lord Denning's famous dictum from MacFoy v United Africa Co Ltd regarding void acts being nullities, though ultimately distinguished it as inapplicable to the facts. The court observed that none of the authorities cited by the defendants actually stated that a trust cannot own property, which observation supported but was not essential to the ultimate conclusion.

This case is significant in Zimbabwean jurisprudence for clarifying the intersection of trust law and intellectual property law. It establishes that despite a trust not being a legal persona, registration of industrial designs in the name of a trust is valid because ownership vests in the trustees as individuals by operation of law. The judgment also provides important guidance on civil procedure, reinforcing the distinction between exceptions and special pleas, and confirming that challenges to the validity of underlying legal instruments that require examination of external facts should be raised by way of special plea rather than exception. The case demonstrates the courts' pragmatic approach to trust property ownership in the context of intellectual property rights registration.