There has been an important ruling in Uganda dealing with trade secrets and Anton Piller orders. The case is Nile Breweries Limited v. Johnson Sebuggwawo, High Court of Uganda at Kampala (Commercial Division), Misc. Application No. 252 of 2024, a judgment of Hon. Justice Patricia Mutesi dated 18 March 2024.

Background

The facts were fairly straightforward. Mr Sebuggwawo, who was employed as a trade marketing executive by the company Nile Breweries Limited for some 11 years, resigned and joined a competitor company, Uganda Breweries Limited, in the same role.  An investigation revealed that Mr Sebuggwawo – who left Nile Breweries on 4 April 2023 – had over the period 9 January 2023 to 29 March 2023 transferred 125 emails with confidential business information from his official email address to his personal email address. These emails contained Nile Breweries’ marketing strategies and statistics. Nile Breweries sued Mr Sebuggwawo for breach of his employment contract and for unauthorised disclosure of trade secrets.

Anton Piller Orders

Nile Breweries also brought an Anton Piller application, one which would permit the inspection of Sebuggwawo’s house and seizure of computers, documents, materials or articles relating to the applicant’s trade secrets or business information. Anton Piller orders are a somewhat radical measure that is obtained without notice to the other side (a so-called ex parte order), and it is only granted in extreme circumstances.

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The order gets its name from the famous British case of Anton Piller K.G v Manufacturing Processes Ltd (1976) Ch.55., which dealt with the disclosure of confidential information. This was back in the days of Lord Denning who decided that an ex parte order can be granted in extreme cases where there is a grave danger of property being smuggled away, or vital evidence being destroyed. He described the order as being one at the extremity of the court’s powers, and he advised circumspection in the enforcement of such an order.

Was an Anton Piller order warranted here?

In a judgment dated 18 March 2024, Judge Patricia Mutesi described the Anton Piller order as ‘an interlocutory search and seizure order issued in an ex parte application where there is a reasonable fear that there is evidence of intellectual property rights in a person’s possession which could be destroyed and lost if that person is alerted of the legal action instituted against him before the order is made’.

The judge said that courts must be circumspect in issuing such orders. She went on to say that the conditions for such an order are as follows:

  • There must be an extremely strong prima facie case;
  • The damage to the plaintiff, potential or actual, must be very serious;
  • There must be clear evidence that the defendant has incriminating matter in their possession, and a real possibility that it will be destroyed before an inter partes application can be brought.

The judge said that the applicant in this case, Nile Breweries, had an ‘extremely strong’ case. The 125 emails that had been sent were very telling. As was the fact that Sebuggwawo resigned on 31 March, left on 4 April, and took up employment with a competitor within a matter of days. It was also significant that his terms and conditions with Nile Breweries prohibited him from copying any information from his employer.

The judge found for Nile Breweries. She held that it was highly probable that Mr Sebuggwawo had intended to use the confidential information to the detriment of Nile Breweries. The judge considered the potential harm that Nile Breweries would suffer if the court refused to issue the Anton Piller order, and concluded that Mr Sebuggwawo could continue to access, destroy, or replicate sensitive data, thus exacerbating the damages.

Conclusion

An Anton Piller application is an extreme measure but it can be effectively used in Uganda to seize evidence of the infringement of intellectual property or misappropriation of trade secrets, which would likely otherwise be destroyed.