Commercial Law Index

The matter involved an application to extend the time period of filing an appeal against an alleged illegal decision of the High Court.

The court began by reiterating that the decision to grant an application for extension is a discretionary power. This discretionary power, however, is judicial in nature and must be confined to the rules of reason and justice. It is also required all relevant factors are considered.

Applying the above to assess the applicant’s reason that the delay stemmed from ignorance of procedure, the court regarded the reasons as insufficient. This was predicated on the case law position that ignorance of law was not a good cause for an extension.

The court also considered the question of the legality of the impugned decision as a possible reason for an extension. It relied on the decision of Lyamuya Construction Company Ltd v Board of Registered Trustees of Young Women's Christian Association of Tanzania Civil Application No. 2 of 2010 which stated that a point of law must be of sufficient importance and apparent on the face of the record to compel the court to allow for an extension. The court thus reasoned that the alleged illegality was not apparent on the face of the decision. Hence, it concluded that since it would require a long-drawn process to decipher the illegalities, illegality was not a sufficient cause for granting an extension.

The matter involved an appeal against the decision of the High Court, a decision the appellant contends was arrived at under error of procedural law.

The main issue was whether the decision of the lower court was defective for its failure to afford the appellant her right to be heard. The court relied on case law to establish that it is necessary to afford a party a fair hearing upon making an adverse decision. It accepted the position in Scan - Tan Tours Ltd v the Registered Trustee of the Catholic Diocese of Mbulu Civil Appeal No. 78 of 2012 that when an issue that is pivotal to the whole case is introduced the parties should be given a chance to address the matter before the court. In addition, the court relied on the Rukwa Auto Parts and Transport Ltd v Jestina George Mwakyoma Civil Appeal No. 45 and Abbas Sherally and Another v Abdul Fazalboy Civil Application No. 33 of 2002 cases as authority for the proposition that failure to allow for the right to be heard constituted a breach of natural justice, a fundamental constitutional right.

The court reasoned that the trial court had failed to uphold the appellant’s right to be heard when it arrived at its decision and therefore violated a constitutional right. Hence, the court concluded that the decision could not be allowed and consequently nullified the impugned decision. 

Aggrieved by a High Court decision concerning a dispute with the respondent, the applicant sought leave to escalate the matter to the Court of Appeal. The High Court summarily rejected the application without notice to the parties and prior to the set-down date of the hearing.

The appellate court was wholly convinced by the applicant’s main contention: that the High Court judgment was impugnable because the parties had not yet been heard at the time it was given. Outlining the basic tenets of the audi alterem partem principle, the court affirmed that courts are obligated to afford the parties a full hearing before determining the disputed matter on merit.

The appellate court invoked its revisional powers under section 4(3) of the Appellate Jurisdiction Act, setting aside the High Court’s decision and directing it to rehear the application.

The respondent sued the appellant for general damages and restoration of the value of certain of its properties, arising from their sale at a public auction, prompted by a warrant of distress issued under the Income Tax Act. The High Court found that the respondent bore no tax liability to the appellant at the time the warrant was issued, and consequently that the vehicles were unlawfully distrained and sold, before making an award of damages, interest and costs of suit in the respondent’s favour.

On appeal, the tax authority successfully challenged the High Court decision on the grounds of jurisdiction. It contended that the relevant tax legislation (primarily the Income Tax Act, 1973) had established fora to preside over tax disputes at the first instance. As the respondent had failed to exhaust these internal statutory remedies before launching court proceedings, the High Court lacked jurisdiction to hear and determine the matter. The court had ousted the jurisdiction of the specialised fora designed for that very purpose.

Reiterating that jurisdiction may be raised by the parties or suo moto (by the court itself) at any stage of proceedings – even on appeal – the appellate court quashed and set aside the High Court’s decision and upheld the appeal.

In view of Rule 10 of the Tanzania Court of Appeal Rules, the applicant had to display good cause for a two-year delay in seeking to file an application for leave to appeal. Counsel for the respondents contended that two years was an unacceptably long deferment and that the applicant ought to have applied directly to the appellate court for leave within two weeks after the High Court rejected the application for leave to appeal. It was submitted that the applicant was required to account for each day of the delay-period, which he had not done.

The court, on the other hand, found that the many applications with which the applicant had been busy during the two-year period – albeit fruitless – offered some explanation for the delay. It found that as the respondent was still in possession of the property which formed the subject-matter of the dispute, no prejudice would be caused to it by permitting an application for leave to appeal. Moreover, the grounds that the applicant intended to raise – illegality and fraud – were of such import that they ought to be given an opportunity for airing before the court.

The application was granted.

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.

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. 
 

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 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. 
 

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 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.
 

The plaintiff won a tender for the supply of various medical supplies and equipment to be distributed by the first defendant. The framework agreement specified that the delivery thereof depended on ‘call off orders’, which were written instructions issued by the first defendant requiring the plaintiff to deliver stipulated numbers of medical supplies on specified dates.

When the first defendant unexpectedly deferred an order for additional supplies, the plaintiff incurred significant unforeseen costs with respect to the storage and security of the delayed goods. The plaintiff therefore instituted a claim against the first defendant for breach of contract.

The issues were common cause. First, whether the order of the goods as agreed was indeed deferred by the defendant. Secondly, whether the defendant delayed its payment for the goods delivered under the contract. These issues were simultaneously dispensed with, the court quickly finding on the evidence before it that the answer two both questions was affirmative.

The third issue, in light of this finding, was whether the defendant’s conduct amounted to a breach. This was also answered in the affirmative as the alterations made by the defendant were a departure from the specified dates and quantities required by the contract’s call off order protocol.

The establishing of loss on the part of the plaintiff to found its claim for damages emerged fourthly. That the record clearly demonstrated the costs incurred by the plaintiff – in the shape of storage and security fees, bank interests and charges from the manufacturer for delayed acceptance of goods – rendered this issue swiftly resolvable by the court.

The fifth issue concerned the determination of relief. The plaintiff was awarded a penalty for delayed payments and further general damages.

Judgment was accordingly entered for the plaintiff.