The Commercial Case Law Index is a collection of judgments from African countries on topics relating to commercial legal practice. The collection aims to provide a snapshot of commercial legal practice in a country, rather than present solely traditionally "reportable" cases. The index currently covers 400 judgments from Uganda, Tanzania, Nigeria, Ghana and South Africa.
Get started on finding judgments that are relevant to you by browsing the topic list on the left of the screen. Click the arrows next to the topic names to reveal a detailed list of sub-topics. Most judgments are accompanied by a short summary written by subject-matter expert postgraduate students from the University of Cape Town.
This case considers the adducing of fresh evidence on appeal. The respondent had claimed title to a certain land. Dissatisfied by the High Court judgment; the appellants appealed to the Court of Appeal. On appeal they sought an order granting them leave to adduce new evidence. The reasons being:
1. that this evidence showed that the disputed land had been acquired by the government and that the respondent lacked the required locus standi to institute this case;
2. in an action to protect acquired land, only the Attorney-General has the requisite standing to sue and the respondent can only sue if he had been granted leave to do so by the Attorney-General; and
3. that the trial court lacked jurisdiction to have heard the case.
The respondent contended that the documents now sought to be used as additional evidence are not of such a nature that would affect the jurisdiction of the court and that it was the appellants' choice then not to tender these documents.
This court agreed with the counsel for the appellants. In the judgment, the court found the documents entailing strong points which would likely affect the jurisdiction of the trial court.
Additionally, the issue of jurisdiction was found to be fundamental and could be raised at any stage of the proceedings (even for the first time in this court).
Thus, in the interest of justice. these documents could be tendered on appeal as fresh evidence.
The case considered the following issues, being (1) whether the lower court was right when it struck out the appellants notice of appeal on the ground of non-payment of filing fees; (2) whether the lower court was rights when it held that the witness statement constituted evidence sufficient to grant default judgment; (3) whether the lower court awarded a double compensation in respect of the same alleged loss; and (4) whether the lower court’s findings with respect to the award for special damages is competent.
The court held that an appeal is not filed unless the appropriate filing fees are paid. However, the fact that the registry failed to collect the filing fees should not be to the detriment of a litigant. Therefore, the lower court erred in striking out the notice of appeal on the ground of non-payment of the filing fees, as the appellant was not ordered to satisfy the filing fees. On the issue of the witness statement, the court found that the evidence to support a default judgment can be oral or documentary. Thus, judgment could be entered into in default based on the statement of claim, or a witness statement. On the issue of damages, the court held that the principle of assessment of damages is to restore the plaintiff to the position in which he would have been if the breach did not occur. The court found that a party cannot be awarded both special and general damages for the same set of fact. The court confirmed that the damages awarded amounted to a double compensation.
Appeal succeeds in part.
This appeal is in relation to whether an order of non-suit was the appropriate order. The appeal originated from an institution of an action against the respondents. The action was centred around an order for damages, due to an unlawful dismissal from employment. The respondent disputed these claims as they contended that the contract was lawfully terminated.
The courts below granted judgment in favour of the appellant. However, in the Court of Appeal a piece of evidence belonging to the appellant was expunged on the ground that those pleadings did not constitute evidence. An order of non-suit was made by the Court of Appeal. It is that order of non-suit that gave rise to this appeal at the Supreme Court.
The appellant submitted that there was a breach of the fundamental right to fair hearing as the non-suit was instituted before hearing. Furthermore, he claimed to have satisfactorily proved his case for damages on the now expunged evidence and that this was therefore not a case in which an order of non-suit ought to have been made.
This court resolved this issue in the appellant's favour and the judgment of the Court of Appeal was set aside. Accordingly, this appeal was remitted to the Court of Appeal to be heard by a different panel.
The subject matter in this case is a market stall at Igbudu Market, Warri. The second respondent permitted the appellant the use of a stall, ordinarily used by the appellant, during a temporary absence. However upon the second respondent’s return, the appellant refused repeated requests to vacate the stall.
In essence, this claim was for the possession of thr stall. The court was called upon to decide in whom the right to the stall resides.
It was the appellants claim that she was afforded lawful entry to the property. Additionally, that as a sub-tenant she was entitled to six months notice of eviction as per legislation. Such notice was not granted by the second respondent. The second respondent claimed damages for trespass to the stall. The judgment in the court below was in favour of the respondents.
On appeal, the appellant argued that the High Court did not properly evaluate certain evidence adduced. In any event, had it been properly evaluated, the judgment would have been favourable to the appellant. Thus, there was a miscarriage of justice.
This court held that the evidence that the appellant held on to possession of the stall could not on its own confer possession of the disputed stall. It found no merit whatsoever in this appeal and dismissed the appeal.
The respondent sued the appellant for default of payment in respect of loans granted to the appellant by the respondent in the course of the appellant’s employment.
The appellant claimed that liability in respect of the car loan should not have been determined solely by reference to the formal contract. Instead, the court should have had regard to extrinsic evidence.
The appellant further claimed that the summary judgment granted against him by the court below was erroneously made as there was a plausible dispute between the parties for which leave should have been granted to the appellant to defend the action. The respondent contended that the factual situation representing the appellant's defence did not constitute a good defence on the merit to the claim of the respondent. This court agreed with the respondent.
The appellant submitted that his continued retention in the employment of the respondent was a condition precedent to his repayment of the loans and his employment having been terminated, the enforcement of the personal loans had been frustrated. This court held that this stance was not sustainable because the contracts of employment and personal loans between the parties were two distinct contracts and their duration not co-existent. Thus, the appeal was dismissed.
The subject matter of this appeal was an allegedly defamatory letter published by the appellant bank, relating to the respondent. This letter was compiled by the second appellant who was the bank’s employee, directed to the respondent’s employer. The contents related the respondent's alleged indebtedness to the bank and sought their cooperation in recovering the debt. It later transpired that this letter ought to not have been sent, as there was in fact no debt as alleged.
The respondent then claimed that the letter was defamatory and instituted a claim for damages. The appellants counterclaimed and raised the defence of qualified privilege. The courts below entered judgments in favour of the respondent and awarded damages in his favour.
The question on appeal is whether the court below was right to have held that the defence of qualified privilege did not avail the appellants.
The appellants went to great lengths to show that the second appellant and the respondent had never met before the defamatory letter was written and argued that this fact rebutted the inference of actual malice. The respondent claimed that the second appellant was motivated by malice in writing the letter.
This court found that the finding of the court below that the appellants were actuated by malice was erroneous. On the basis that the pleading lacks malice as a requirement, the appeal was upheld.
The appellant is a commercial bank and the respondent a holder of several accounts in the bank. The Imo State Task Force for the Recovery of Public Property and Funds (the task force) alleged that the respondent used contracts to defraud the Imo State government and paid the proceeds into the said accounts with the appellant.
The respondent admitted that the moneys in the two accounts operated with appellant were payments he received from the contracts which he failed to perform. The task force ordered the transfer and freezing of funds in these accounts pursuant to the Recovery of Public Funds and Property (Special Provisions) Edict, 1985, section 18(1). After hesitation and unfruitful communication with the respondent, the appellant consequently complied with the order of transfer and freezing of the funds in the account.
The courts below held that the action as constituted was a banker/customer relationship. Therefore, the court had jurisdiction to hear the matter.
However, this court held that the matter went beyond an ordinary banker/customer relationship. The freezing of the account of the respondent and subsequent transfer of the funds therein to government's’ bank account were acts done under Edict No. 7 of 1985. Thus, the cause of action was consequently not subject to litigation.
A preliminary objection by the respondent set out to expose the lack of due diligence on the part of the appellant. The respondent’s claim was that the appellant’s records were fundamentally defective and incompetent. This was because the records of the appellant were issued signed by "N. Nwanodi & Co," (which is not a legal practitioner recognized by law in Nigeria) instead of counsel’s actual name.
The counsel for appellant stated that the habit of legal practitioners' merely signing court processes in their firm's name without indicating their actual name has been allowed by this court in many cases. Thus, it was an over-adherence to technicality to annul the process improperly filed.
The respondent sought this court to employ purposive interpretation of sections 2(1) and 24 of the Legal Practitioners Act (the act) that would lead to the conclusion that the record filed was indeed fundamentally defective.
This court upheld the preliminary objection of the respondent. It held that the appellant's' notice of appeal was fundamentally defective. It concluded that the purpose of sections 2(1) and 24 of the act was to ensure accountability on the part of a legal practitioner who signs court processes.
The question for the court was whether a respondent who never pleaded his entitlement to a defence can be lawfully refused the reliefs he seeks against an appellant.
The respondent claimed title to the land in dispute, alleged trespass against the appellant and sought an injunction. On appeal, the appellant claimed laches and acquiescence against the respondent. This was on the basis that the respondent stood by waiting for the appellant to complete his residential building and moved in before he took legal steps.
The contention of the respondent was that the equitable defence of laches and acquiescence did not arise in the court below and therefore the respondent could not be said to be guilty of any.
This court held that the respondent, from his pleadings and evidence, continued to have the right to exclusive possession of the land in dispute. The appellant violated this right. The appeal was dismissed for lack of merit.
It was further held that the respondent failed to adhere to the rules of pleading in the conduct of their cases, therefore the respondent may not make any case outside the matters he pleaded.
This case concerned the appellant's entitlement to notice of meeting prior to removal as company director. The appellant claimed relief for a declaration that his purported dismissal was a repudiatory breach of his contract of employment and that he was denied the right to a notice meeting pursuant to sections 236, 262 and 266 of Companies and Allied Matters Act (CAMA).
The counsel for the respondent contended that against the background of the appellant's contention the trial court had no jurisdiction to entertain the complaint. Given the above claim of the appellant, he should have approached the Federal High Court for the resolution of his complaint of the breaches and not the trial court.
This court held that the dismissal of the appellant was not lawful because of lack of due process. However, the trial court below lacked jurisdiction and since the trial court lacked the jurisdiction to enter the matter, the lower court, equally, lacked the jurisdiction to deal with the appeal before it. Thus, the appeal was found to be unmeritorious and was struck out for want of jurisdiction.
The respondent bought a piece of property from a third party. After the respondent had taken possession of the property, he became aware of the fact that his predecessor-in-title had mortgaged the property to the appellant. The respondent paid off the outstanding debt and thereafter demanded the release of the title deeds to him. Instead, the appellant demanded some authorisation from his predecessor-in-title before the documents could be released to him. The respondent instituted a claim on this basis. The trial court judgment was in the respondent’s favour.
After the respondent attached the property the appellant filed an application praying for an order staying execution of the judgment, particularly the sale of the property and ordered release thereof; before hearing of the application. The trial court dismissed this application.
The appellant eventually appealed to this court asking for the same. The appellant urged this court to allow the appeal, set aside the ruling of the court below and grant an order directing the High Court to retain the amount deposited as per judgment.
This court held that the order sought to be stayed was made by the trial court and there was no appeal against that order to the Court of Appeal. That being the case, it was held that it would be a wasteful academic exercise to delve into the merit of the issue. Consequently the appeal was dismissed.
The case concerned the jurisdictional issue that was raised and whether the lower court had the jurisdiction to adjudicate upon the matter. Furthermore, the court considered whether a party was entitled to raise a new issue on appeal which hadn’t been previously canvassed. It was found that where a party seeks to raise a fresh issue on appeal, he must seek leave of the court. It was stated that it can never be too late to raise the issue of jurisdiction due to its fundamental and intrinsic nature and effect in judicial administration. The issue of jurisdiction is the court’s authority to hear the suit. If a court lacks the jurisdiction to hear the suit and proceeds to entertain it, the proceedings and judgment amount to a nullity. It was found that none of the below courts had jurisdiction to hear the suit and as a result the appeal court could not exercise its jurisdiction. Appeal dismissed.
This was an appeal against the decision of the Court of Appeal to strike out the appellant’s appeal on the ground that it only paid a fraction of the filing fee.
The respondents had filled an action claiming monetary compensation for a diesel spill from the appellant's facility which polluted the respondents’ water. The appellant admitted the spillage and judgment was passed against it. On appeal it paid N200 instead of N5000 to file documents into the registry. The respondents urged the court to dismiss the appeal on the basis of this and other irregularities. The appeal arose from an attempt by the appellant to regularise the payment of fees prior to the filing of the appeal but this was dismissed as incompetent due to payment of inadequate fees.
The court considered whether the lower court was right to strike out the appeal. It observed that a discretionary decision based on a principle that inadequate filing fees was fatal to an appeal was a wrong exercise of discretion. The court differentiated non-payment of fees from payment of inadequate fees. It held that a court of law could not allow the provisions of an enactment to be read in a way that would deny citizens access to court, thereby denying a litigant access to justice. It found that the lower court’s striking out of the appeal denied the appellant access to court.
Accordingly, the appeal was upheld and the appellant ordered to pay the correct fees.
In this case, the court considered whether a writ of summons issued for more than 12 months and not served within that period can be renewed.
The court held that pursuant to order 5 rule 6 a writ has a life span of 12 months. It follows that an application for renewal must be made to the court before the expiration of the 12 months on the grounds that the defendant had not been served or for another good reason.
The court held that a writ is regarded as void where the expiration of the period of 12 months prescribed. An application for renewal of a writ can be made before the expiration of the 12 month period of issuance of a writ and after. Although order 5 rule 6 is a specific provision for renewal of a writ which is still in force, order 47 rule 3 provides for cases where the period of its effectiveness had expired and the two provisions must be read together.
In this case, the court had difficulty ascertaining reasons to jusitfy the exercise of discretion to renew the writ which had remained unserved after 12 months. The application of the appellant in the court below was found to be without merit.
The court dismissed the appeal.
The appellant sought to raise a fresh issue not canvassed in the court below. This case illustrates the court’s willingness to grant leave to raise and argue a fresh issue to ensure that justice prevails.
The court considered whether the applicants should be granted leave to raise and argue fresh issues on law in their appeal. In analyzing the principles for granting leave to raise fresh issues on appeal, the court held that one major consideration is if further evidence is required. The court held that it was satisfied that the fresh issue would be erected on the existing evidence in the printed record.
The court also held that the fresh issues must constitute a substantial point of law which will materially determine the fortunes of the appeal. The court found that the application for leave to raise and argue a fresh issue of law had satisfied all the established principles or templates for the grant of leave.
The court gave the appellant 30 days to file their brief of argument in this appeal. The court upheld the appeal.
In this case, the appellant appealed the decision of the lower court to strike out the appeal against the trial court’s interlocutory decision for being incompetent. This case illustrates how final and interlocutory orders are distinguished.
The court considered whether the Court of Appeal was right to hold that the appeal from the High Court on the issue of jurisdiction was interlocutory for which an appeal must be lodged within 14 days.
The court was called upon to determine whether or not a court’s decision is final in the course of determining the appeal. The court held that a final order at law was one which brings to an end the rights of the parties in the action. On the other hand, an interlocutory order was only intermediate and did not finally determine the rights of the parties in the action. The court held that this case was an interlocutory motion and the order that had been granted by the trial court was a final order. Therefore, an appeal on the order of the trial court was a right under section 220(1) of the Constitution.
The court also referred to Alor v. Ngene (2007) 17 NWLR (Pt 1062) 163 which provided that where a decision of a court finally and completely determined the rights of the parties, it was final, but if did not then it was only interlocutory. Thus, the court concluded that the trial court’s decision was interlocutory and could not be said to be perverse.
The court dismissed the application with parties bearing their own costs.
The appellant sought an order of the court nullifying the nomination of the first respondent as candidate of the second Respondent in the 2015 Governorship election in Yobe State. This case considered whether the lower court was right to have held that the appellant was not an aspirant in the second respondent for the purpose of invoking the provisions of s 87(9) of the Electoral Act (the act), and whether the lower court was right that the appellant had not established an allegation of forged documents.
The court held that two conditions must be present to confer the necessary locus standi to invoke the provisions of S 87(9) of the act, (1) there must be a complaint that the party’s guidelines or the provisions of the act were not observed in the nomination process and (2) the complainant must have participated in the primary election. The court found that the appellant did not participate in the primary election and was thus unable to invoke the provisions of s 87(9) of the act.
In determining whether a document has been forged, a party must prove; (1) the existence of a document in writing; (2) the document or writing is forged; (3) that the forgery was by the person being accused; (4) that the party who made it knew that the document was false; and (5) the party alleged intended the forged document to be acted upon as genuine. The court held that the court below was correct in holding that the appellant had failed to prove beyond a reasonable doubt that the document was forged.
In this case, the appellant protested the total absence of any service of the processes and claimed ignorance of the proceedings at the lower court. This case illustrates the essentiality of service of court process.
The court considered whether the appellant had been duly served with the notice of appeal, other processes filed by the respondent at the lower court and also the hearing notices.
The court followed the principle provided in Ihedioha v Okorocha Appeal No. SC. 660/2015 (unreported, delivered on 29 October 2015) where it was held that service is an important aspect of judicial process. It was held that failure to serve a named party with court process offends section 36(1) of the Constitution.
The court also took into account the provision of order 2 rule 6 of the Court of Appeal Rules, which stipulates that it is mandatory for the service of the notice of appeal on a respondent to be personal.
The court held that the validity of the originating processes in a proceeding before a court was fundamental because the competence of the proceeding is a condition sine qua non (an essential condition) to the legitimacy of any suit. The court held that there was a lack of certainty that the appellant was served with any process in accordance with practice and procedure of the rules of court.
The court upheld the appeal with no costs.
In this case, monies held by the appellant belonging to the Nigeria Customs Service were traced. An order nisi was served on the appellant as the fifth garnishee. This case illustrates how the garnishee proceedings do not avail the garnishee to attack a judgment that the judgment creditor and debtor have accepted.
The court considered whether the appellant should be granted leave to raise fresh issues in additional grounds of appeal. The court explained that garnishee proceedings were not a process employed by the garnishee to fight a proxy war against the judgment creditor on behalf of the judgment debtor. The court held that a decision of a court of law not appealed against is to be accepted by the parties and it remains binding on them other parties, including garnishees.
The court held that the appellant had prayed for leave to raise issues that this court did not have the benefit of the views of the court below. The court considered order 2 rule 12 of the Rules of the Court which provide that the court may exercise its discretion to accept fresh evidence. The court held that there was a mischievous purpose attached to the appellant’s application and no power in law inheres in the garnishee to fight the cause of a judgment debtor.
The court concluded that the cause of action available to the garnishee was quite limited and therefore the application in this case was an abuse of the court process.
The court dismissed the application with costs.
The matter involved an application for extension of time of appeal against a lower court decision granted against the applicant.
The main issue was whether the applicant had shown cause to justify the granting of the extension. The court noted that the length of the duration of the delay in bringing an application for extension is immaterial provided there are good reasons to justify it. In its engagement with the law, the court emphasised the role of judicial discretion in assessing the efficacy of granting the extension. It stated that for this discretion to be exercised the applicant had to show good and substantial reasons for failure to initially make the appeal. These could be a rule, lack of means, mistake or accident. The other inseparable twin leg was for the applicant to show prima facie good cause why the appeal should be heard.
In assessing whether the contemplation of an out of court settlement as reason for delay was a substantial enough reason, the court cited the Supreme Court judgment of Ikenta Best Ltd v AG Rivers State (2008) 2 SCNJ 152 to establish that the reason would not meet muster. The court thus concluded that the application did not meet the first condition for granting an extension and therefore dismissed the application for lacking merit.
The matter involves an application for an extension of the period of appeal by applicant against a lower court decision.
The main issue was whether the applicant, after consideration of the interests of justice and fair hearing, is entitled to an extension of the period of appeal. Starting from the point that the execution of a judgment does not foreclose the aggrieved party’s right of appeal, the court stated that the applicant must show good and substantial reasons for the delay in appeal, which can be rooted in a rule, lack of means, mistake or accident and, prima facie good cause why the application should be heard. Whilst the first leg requires a satisfactory justification, the second leg only requires one to show that the grounds of appeal are arguable. It is upon satisfaction of both the above that the court will use its discretion to grant the application.
As the applicant’s sole reason was that the delay stemmed from a desire to explore an out of court settlement option, the court followed the Supreme Court decision in Ikenta Best (Nig.) Ltd v AG Rivers State (2008) 2 SCNJ 152 to arrive at the position that the applicant’s reason could not be regarded as a good and substantial reason for delay in filing an appeal. The court thus held the applicant had failed to justify why the extension should be granted and therefore dismissed the application.
The matter arose from a decision on a dispute about traditional ownership of land between the appellant or the respondent’s family in favour of the respondents.
As the trial court had found in favour of the respondent, the key question was whether the trial court was correct in its findings. The court first noted the trial court’s failure to fully address all issues necessary for determining a declaration of title before making a comment on the judgment’s failure to appraise and evaluate the evidence presented to it. It asserted that it is a legal requirement for a court to consider and determine all issues brought before it otherwise the judgment would be flawed and could amount to a miscarriage of justice and breach of fair hearing. The court thus reasoned that the total dearth of findings on any of the substantial issues of facts and law by the trial court rendered its judgment a nullity. Hence the trial court’s judgment was incorrect.
Further, the court decried the trial court’s failure to deal with salient issues that included evidence of traditional history, inheritance and length of possession as an abdication of its duties. On whether the court could remedy this, it noted that since these depended heavily on credibility of witnesses, would be handicapped to make findings to resolve the dispute. The court thus set aside the judgment of the trial court and remitted the matter to the High Court for de novo hearing.
The main issue faced by the court in this matter was whether an appeal could be allowed to proceed when the notice of appeal is incompetent.
On the assertion that the notice was defective for failure to reflect names and addresses of the parties, the court was quick to dismiss the objection as baseless as the error was a mere irregularity which could not affect the hearing of the appeal on merits. It reasoned that a liberal interpretation must be followed thus non-compliance per se could not be a ground for nullifying a proceeding unless it could amount to a denial of justice. Since the requirement of endorsement of names and addresses was a measure of convenience and not mandatory, it could not render the notice invalid.
On the contention that the notice did not relate to any suit, the court acknowledged the presence of incongruities between record of appeal and the notice to an extent that there was no nexus between the two. Further, it observed the incompleteness of the record, defects which amounted to a failure in invoking the court’s jurisdiction. The court decried the applicant’s failure to remedy the above defects by way of motion on notice to the lower court, a defect it held to be fundamental and stems to the very root of the appeal process. The court thus held the appeal was effectively incompetent and therefore there was no jurisdiction to hear the appeal.
The matter involved an appeal over a decision made about a contractual dispute between the appellant and the respondent.
The first issue was whether the trial court had jurisdiction to consider a contractual matter between an individual banker and his bank. The court engaged with the interpretation of the relevant constitutional provision (s 251(1)(d)) as given by the Supreme Court and established that it granted concurrent jurisdiction between federal and state High Courts in customer-bank matters. The court reasoned that the provision is an exception to the exclusive jurisdiction enjoyed by federal courts. It concluded that the trial court had jurisdiction, though concurrent, to decide the matter at issue.
The second issue was whether there had been sufficient proof at the trial court to support judgment in favour of the respondent. Acknowledging that this issue required the court to embark on a re-evaluation of the evidence, the court emphasised that interference could only be done if it is shown that the trial court’s judgment was perversely flawed. After reviewing the trial court processes, the court concluded that there was a failure to properly evaluate the totality of all evidence, particularly determining what was admissible or inadmissible, before making its decisions. Since there was proof of an absence of a nexus link between the conclusions of the court and the proven facts, the appellate court could thus interfere and re-evaluate the evidence. The trial court’s judgment was therefore found to be fraught with error and was set aside.
The respondent/plaintiff had sued the appellant/defendant for a liquidated debt following its default in payment and successfully applied for the matter to be placed on the undefended list. There it was heard exclusively on the papers to the respondent/plaintiff’s success. Two issues emerged on appeal: whether the trial court’s judgment contradicted the evidence, and whether the appellant’s notice of intention to defend disclosed a defence on the merits of the case, thereby justifying the matter’s transfer to the general cause list.
The appellate court held in favour of the respondents on both issues, finding first that the court had been thorough in its analysis of the evidence before it, and had crafted a reasoned order reflecting this.
The judge elucidated the purpose of the undefended list as a vehicle for swift justice where a defendant has no credible case. This was one such instance; the court found that the appellant had failed to raise a triable issue warranting the matter’s transfer to the general cause list. The appellant’s allegations of fraud did not conform to the recognised rules for establishing such a claim and were found lack any substance.
The appellant unsuccessfully invoked s 36(1) of the Constitution, contending that its right to a fair hearing had been breached through its being deprived of a comprehensive trial. The court affirmed the lawful function of the undefended list, emphasising that parties are given equal opportunities to be heard via the papers. Where a defendant was unable to raise a triable issue against the plaintiff’s claim, it could not resort to arguing that audi alterem partem had been flouted.
The appeal was dismissed.
The parties concluded a loan agreement to facilitate the appellant’s purchase of immoveable property. The appellant provided 30% of the fee while the rest was covered by the loan amount. Upon purchase, the property was assigned to the respondent. When the appellant defaulted on payment, the respondent purported to sell the property in execution of the debt.
The appellant contested the legality of this recourse, arguing that the relationship between the parties was such that the respondent held the property in a trust, for her benefit as part-owner, and would do so until which time she had paid back the amount owing. The appellate court concurred with the trial judge that the parties’ transaction clearly amounted to an equitable mortgage – rather than an implied trust – and that the respondent could dispose of the property in execution of the debt without the appellant’s consent.
The trial court’s decision to non-suit the plaintiff/respondent was also upheld by the appellate bench, who considered the well-established criteria for such an award. As the plaintiff had not failed in toto to prove its case, the defendant was not in any event entitled to the court’s judgment and no injustice would be caused thereto by the order, the relevant factors were deemed satisfied.
The appeal was dismissed.
The claimant/appellant purported to buy a property offered to it by the defendant/first respondent and consolidate the transaction with its purchase of another of the latter’s properties. This was proposed via counter-offer. The appellant proceeded to pay a down-payment for both properties after the agreed time-period, the bulk of which was unilaterally appropriated by the respondent towards payment for only one of them in reverting to the terms of the original agreement. Aggrieved, the appellant approached the High Court seeking layered relief to uphold the consolidated sale. The trial court found that, on the facts, the consolidation agreement was valid but conditional on the specified time-frame. It was therefore aborted as time was of the essence and payment had not been made in the required period. Judgment was entered in favour of the first respondent.
Challenging the trial court’s decision, the appellant argued that a binding agreement had been created, and the respondent had waived the issue of timeous payment when it accepted the appellant’s performance beyond the stipulated time-period. The court dismissed this claim, finding in concurrence with the court below that the failure to meet the time requirement – a term that was accepted by the appellant – thwarted the consolidation. No waiver had occurred.
Specific performance was unavailable to the appellant as the respondent had not breached their existing agreement. Its claim attacking the trial court’s jurisdiction to make an order regarding the transfer and registration of the property – directed at the second respondent – also failed.
The appeal was accordingly dismissed.