Gutu vows to fight Chamisa to the very end

The basis of this application was basically that, the respondents being former members of the applicant, whose membership had been terminated through due process if regard is had to the party's constitution, had no lawful right to continue using the party name, logo and symbols. The second point raised in the application was that the respondent had stubbornly refused to recognize the decisions of the applicant's National Council to appoint Mr Nelson Chamisa as initially the Acting President of the party following the death of the late Morgan Tsvangirai, and his ultimate elevation to be the substantive President of the applicant.

The respondent were alleged to have exhibited unaccepted defiance to the decisions of the MDC's National Council by settling up parallel party structures of their own entity and in the process continued to use and exploit the applicant's registered trademarks, viz, the applicant's name, logo, symbols and any derivatives thereof without the applicant's authority.

Upon being served with the application the respondents strenuously opposed it and raised four points in limine which in the course of this application I asked both counsel to deal with before the matter could be argued on merits, if at all.

The first point raised in limine was that the applicant was not properly before the court because those who brought it lacked legitimacy to do so as the first respondent was the duly recognized Acting President of MDC, having assumed the position by operation of law upon the death of the late Morgan Richard Tsvangirai on 14 February 2018. The 1st respondent cited Article 9.21.1 of the MDC Constitution, which constitution the respondents attached to their notices of opposition.

All the three respondents challenged the applicant for deliberately failing to attach the applicant's constitution and argued that such failure was fatal to their application.

The 1st respondent supported by the two other respondents argued that it was only herself who had the legitimate authority to represent the MDC and not the applicant who had chosen to subvert the MDC Constitution.

The second point in limine was that this application lacked urgency as contemplated by the rules of this court and that therefore it should not be allowed to jump the queue and be given preferential treatment over other matters pending determination in this court.

It was also contended by the respondents that the application brought by the applicant was exclusively about an alleged infringement of a trade mark and that section 72 of the Trade Marks Act (Chapter 26:04) had not been complied with, and that the application was therefore not competent under the law.

The other point which was raised in limine by Professor Madhuku, for the respondents was that the rules on urgency do not provide for the filing of an answering affidavit, and that if the court finds to the contrary, then the court must specifically make a finding that the answering affidavit had introduced completely new evidence which rendered its acceptability incompetent. Alternatively respondents argued that the court allows the respondents to file responses to the new issues raised by the answering affidavit.

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