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.
The dispute centered on whether the decision by the Land Disputes Tribunal (the tribunal) was marred by irregularities due to the absence of proper assessor involvement.
The first question was whether it was necessary to record the opinion of the assessors even when they were in agreement with the chairman of the tribunal. The court asserted that the ‘unclear involvement of assessors in the trial renders such trial a nullity.’ It also stated that it was mandatory for the opinion of the assessors to be on record. It therefore reasoned that there was a serious irregularity in the trial as the assessors had not given their opinion.
Regarding the effect of the change of assessors during the trial the court averred that this was in contravention of section 23(3) of the act as the provision did not contemplate a complete change of all assessors in its latitude.
The above was tied by the fact that the assessors had not been present throughout the whole trial, conduct which resulted in the tribunal not being properly constituted as required by s 23(1) and (2) of the act.
The final question therefore was whether the above could be cured. The court reasoned that the omissions went to the root of the matter and resulted in a failure of justice. It thus concluded that the trial was vitiated by the irregularities and nullified the tribunal’s proceedings.
The matter involved a question of competency of appeal regarding a land dispute.
The court referred to section 47(1) of the Land Disputes Courts Act which allows a person, when aggrieved by the decision of the High Court, to appeal to the Court of Appeal provided they have been granted leave in accordance with the Appellant Jurisdiction Act.
The court reasoned that as there was no valid and surviving leave to appeal, the appeal was incompetent. It considered this failure to comply with a mandatory step in the appeal process as fatal to the appeal and therefore struck out the appeal fo incompetence
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 a review application against an appeal court’s decision granted against the applicant.
The main question revolved around whether the grounds for a review application were satisfied. The court relied on rule 66(1) which states that a review application is entertained only if the decision under challenge ‘was based on a manifest error on the face of the record resulting in the miscarriage of justice.’ It also relied on the Charles Barnabas v Republic, Criminal Application No. 13 of 2009 and Chandrakant Joshughai Patel v Republic,  TLR 218 cases for the authority that a review does not challenge the merits of a decision but rather irregularities in the process towards the decision hence why it is not something that can be proved by a long-drawn process of learned argument. In addition, persuasive authority was drawn from the National Bank Of Kenya Limited v Ndungu Njau  eKLR case as authority for the proposition that a review cannot simply be raised on the basis that a different court would have reached a different conclusion on the same facts nor because the court misinterpreted the provisions of the law.
In application, the court reasoned that the grounds proffered by the applicant which included failure to prove lawful occupation of disputed land or the fact of that the disputed land belonged to the Village Council were in fact grounds of an appeal since they went into the merits of the decision.
The court therefore concluded that a review could not be raised on grounds of appeal and consequently struck out the application.
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.
The matter involved a dispute over an order of suit property sale as a remedy for breach of a loan agreement granted by the trial court against the appellant.
The first question was whether the responded had paid the whole stipulated loan amount to the appellant. Assessing the evidence in the record from the trial court, the court reasoned that the trial court’s assessment had failed to evaluate crucial evidence that showed doubt in the respondent’s claim that the whole stipulated amount had been paid. The court thus concluded that the evidence indicated that the responded had failed to fully honor its performance obligation. As a result, the responded could not pursue the remedy of obliging the appellant to transfer the property for failure to repay the loan.
The second issue concerned the right to mesne profits (i.e. profits received by tenant in wrongful possession and which are recoverable by the landlord) by the appellant and the amounts due. The court did not dwell much on the question of entitlement, instead accepting the trial court’s finding of indisputable occupation and rental collection by responded as a basis together with the fact that responded could not justify the occupation.
The court thus concluded that mesne profits were owed but order that they be set-off to the amount of the loan that the appellant still owed. The decision of the trial court was therefore set-aside and appeal allowed.
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.
The appellant sued the respondent for the allegedly unpaid balance of his retrenchment package. Proceedings at the High Court were adjourned several times and occurred before multiple presiding officers before a final judge made an order against him.
Noticing irregularities on the record of appeal, the appellate court focused on the competence thereof rather than the merits. The trial judge that made the order had failed to observe the relevant provisions of the Civil Procedure Code by neglecting to place on record the reasons why the matter had fallen unto his lap following several adjournments. The case law on the scope of this rule accounts for its importance in terms of judicial integrity and transparency. Moreover, the decree on record had been duly signed by neither the learned judge, nor the Deputy Registrar, as required by law.
These irregularities led the appellate court to exercise its revisional purview under section 4(2) of the Appellate Jurisdiction Act to quash and set aside the High Court judgment, before remitting the matter to the same forum for a competent judge to adjudicate the matter de novo (afresh). No order was made as to costs.
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.
Aggrieved by a High Court judgment concerning its dispute with the respondent, the applicant looked to the Court of Appeal for revision thereof in terms of section 4(3) of the Appellate Jurisdiction Act.
The application neglected to include the record of proceedings from which the revision arose – a fatally defective error which rendered its case incompetent. The court therefore struck the matter out yet opted leniently to exercise its discretion on the award of costs – no award was made.
Its reasoning was twofold: the applicant had itself pointed out the defective nature of its application during proceedings; and secondly, the respondent had been caused no prejudice by the applicant’s error. It had filed no papers in opposition thereof, nor had it been required to argue the material flaws of the application before the court. The interests of justice, the court held, warranted that each party bore its own costs.
The applicant looked to introduce an additional appeal ground to the memorandum of appeal it had filed challenging a High Court ruling against it.
The respondents raised a preliminary objection that the applicant was time-barred from making such an application. The parties were at odds regarding the application of the ‘sixty days rule’ – a judicially-reared rule which applies to applications where the law provides no specific timescale. The procedural dispute concerned when the sixty-day period began running – the point at which the Memorandum of Appeal was filed, or when written submissions in support of the appeal were filed.
The court found, however, that like applications for extensions of time, the ‘sixty days rule’ does not apply to applications to amend memorandum of appeal, which may be done via application at any stage of the proceedings until judgment is given, pursuant to Rule 111 of the Tanzania Court of Appeal Rules. The court qualified that, although this right is available to appellants at any time, it is still subject to preliminary objections which may be raised against the shortcoming intended to be remedied by the amendment.
Having overruled the preliminary objection, the court moved to the merits of the substantive application. It noted that the parties had primarily addressed the merits and demerits of the ground to be added rather than the merits of the application itself. The court referred to authorities stating that applications of this kind ought to be freely permitted if adverse parties are not prejudiced. The court deemed the ground to be admitted one that was crucial to the determination of the appeal and one that would indeed bear no prejudice to the respondents if adduced.
The application to amend the memorandum of appeal was granted.
Although arising from a contractual dispute between the parties – regarding the respondent’s termination of its security services agreement with the appellant – this appeal’s focus was whether certain evidence admitted by the respondent could form part of the record. The documentary exhibits in question were not endorsed in accordance with the Civil Procedure Code.
Distinguishing this case from precedents wherein the court had permitted the inclusion of defectively endorsed documents, it was held that the purported exhibits fatally lacked essential information. This included the absence of the number and title of the suit, the name of the persons who produced them, the date on which they were produced and a statement showing they had been admitted. The court found that permitting such extensive exclusions would create too great a risk of evidentiary tampering.
The exclusion of the documents form the record of appeal rendered it incompetent under the Tanzania Court of Appeal Rules, meaning the appeal had to be struck out. No order of costs was made as the issue was raised by the court suo moto (of its own motion, without the request of the parties).
The appellants – employees of NECTA, a state-affiliated corporate entity – were aggrieved after being transferred by order of the respondent, the Permanent Secretary, to various other institutions under the control of the Ministry of Education and Vocational Training. Unsuccessful in their review application at the High Court, the appellants contended on appeal that the respondent’s decision was made ultra vires. They argued further that it had violated the requirements of natural justice by failing to provide them with an opportunity to be heard prior to its making.
The appellate court found that the relevant provisions of the Public Service Act (‘the act’) empower the Chief Secretary to facilitate ‘labour mobility’ amongst certain state-affiliated employers, of which NECTA was one. The court held further that a purposive interpretation of section 8 of the act recognised the transfer of employees in the contemplated manner as an essential aspect of ‘labour mobility’. The act enlists the Permanent Secretary as the principal assistant to the Chief Secretary in relation to the administration of public service, meaning that the delegation of power unto it, and subsequent exercise thereof, was duly authorised by law.
Because the appellants’ employment benefits had not been impacted by the decision, and the proceedings had not been disciplinary in nature, the respondent was not lawfully required to give the appellants an opportunity to be heard. Therefore, no rules of natural justice had been breached.
The appeal was dismissed and the parties ordered to bear their own costs.
Amidst proceedings before the High Court regarding a commercial dispute between the parties, the applicant had requested that the trial judge recuse himself from handling the matter. The judge refused the request and went on to dismiss the subsequent review application lodged by the applicant for lack of merit. This caused the applicant to launch review proceedings in the Court of Appeal.
In view of its finding that the decision of the court below was appealable, the appellate court had to determine whether there was legal justification for the applicant’s seeking of a review instead of an appeal. While the Appellate Jurisdiction Act governs the respective procedures of review and appeal, the case law is instructive on when the court’s revisional powers may be invoked. The court considered the benchmarks outlined by authoritative judgments and found that the applicant’s case did not meet any of the legal pre-requisites. The applicant’s complaints with the High Court judgment ought instead to have been lodged as grounds of appeal; the application for revision was made in ignorance of procedural law
Aggrieved by the High Court order concerning its dispute with the respondent, the applicant sought revision thereof from the Court of Appeal. The application was made outside of the 60 day window prescribed by rule 65 the Court of Appeal Rules.
This defect was objected to by the respondent and promptly conceded by the applicant who acknowledged its fatal nature. The main question before the court was to conclude the matter by dismissal or striking out.
Surveying the authoritative case law, the court concluded that the proper position is to dismiss only competent applications; those which suffer from material defects are to be struck out. A time-bar constitutes one such flaw, and so the matter was consequently struck out.
The appellants had been dismissed from their employment by the respondent, the Institute of Social Work, following their alleged participation in an unprotected strike. The matter was heard by the Commission for Mediation and Arbitration (CMA), and then the High Court, to outcomes with which both parties were aggrieved. On appeal, the litigants lodged multiple grounds for consideration (the respondent cross-appealing), which the appellate court condensed into three main issues.
First, the respondents argued that the appeal by the second to twenty-first appellants was incompetent because they did not file a case before the CMA. The respondents argued that the appellants ought to have filed an application for a representative suit under order VIII rule 7 of the Civil Procedure Code. However, the court found that there are specific provisions under the labour laws which are instructive regarding labour disputes involving several employees. The court highlighted section 86(1) of the Employment and Labour Relations Act (ELR), as well as rules 5(2), 5(3) and 12(1) of the Mediation Rules and found that the appellants had acted in accordance therewith.
Secondly, that the appellants were not given clear charges for their misconduct and were denied an opportunity to be heard during the disciplinary proceedings was a clear violation of the constitutional principle of natural justice. The termination was therefore void and of no legal effect.
Lastly, because no fair or valid reason in terms of the labour law had been clearly stated to the employees for their termination, this meant that it was unfair under section 37(2) of the ELR, as well as contrary to rule 8(1)(c) and (d) of the ELR Code of Good Practice Rules.
The appeal was upheld with the court setting aside the decisions of the CMA and the High Court. The appellants were granted leave to institute proceedings against the respondent before the CMA de novo (afresh) so as to determine their rights. Each party was ordered to bear their own costs.
The respondent’s employment with the appellant was terminated following an e-mail he had sent to his immediate supervisor expressing indignation at the way the latter had reprimanded him in the workplace. A disciplinary committee found him guilty of misconduct and dishonesty which formed the basis of the dismissal.
The respondent challenged the decision at the Commission for Mediation and Arbitration (CMA) where he sought reinstatement because he alleged that he was unfairly terminated and that the disciplinary proceedings were improperly conducted. The CMA found against him on both counts.
Successfully applying for revision before the High Court, the presiding judge ordered his reinstatement after finding that, although the disciplinary proceedings had been conducted in accordance the Employment and Labour Relations Code of Good Practice, the arbitrator had erred in arriving at a finding of insubordination. This was because the words used in the e-mail, given the circumstances of the case, were justifiable and thus not offensive. Moreover, the learned judge expressed a view about the authenticity of the e-mail.
These findings of the trial judge formed the basis of this appeal, which was upheld. The appellate court noted that the court below had raised two issues of its own volition, in coming to its decision, without affording the parties an opportunity to be heard thereon. Although judges are generally compelled to decide matters based on the issues on record, questions raised suo motu are permissible where they are placed on record so as to give the parties a chance to address them. The High Court’s failure to do so resulted in a procedural irregularity which consequently vitiated its ruling.
The appellate court therefore quashed and set aside the judgment of the court a quo before remitting the record thereto for determination by another judge.
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.
The essence of the suit was an alleged unjustified refusal by the first defendant to berth resulting in alleged loss to the plaintiff and attaching demurrage charges.
The issue was whether the first defendant deliberately refused to berth a ship, and the court found in the affirmative. The court went on to look at if the refusal was justified. The court found that the master’s refusal to berth was based on unfounded grounds resulting in a two week delay. It was on that basis that the court held that the first and second defendants had not been wrongly sued.
The other issue was whether there was delay in offloading the consignment and whether the plaintiff suffered economic loss. These losses were in a form of demurrage charges, drop in sales as a result of closure of the factory, salaries to workers and bank charges. The court relied on the principle of general damages which states that damages in law presumes follow from the type of wrong complained of. General damages do not need to be specifically have been sustained.
In the result, the suit succeeded and the plaintiff was awarded damages.
The appellant contended that the respondent had wrongly rejected the deductibility of bad debts which the appellant believed warranted to be written off.
The appeal centred on the identification and interpretation of provisions governing losses arising from bad debts which are deductable for income tax purposes.
The court reiterated that it was bound to apply plain language of a statute to give effect to the intention of the legislature. It went on to state that statutes are to be read as a whole in context, and, if possible the court is to give effect to every word of the statute.
The intention of the legislature was to devote the area of the provisions of the Income Tax Act, 2004 (ITA) covering sections 20 to 26 for purpose of providing guidance to tax payers like the appellant. In other words section 25(4) and 25(5) (a) of the ITA shows one gets the impression that in the preparations of its tax accounts to be assessed by the respondent, the appellant was given the opportunity to indicate therein, what debt claim had in the appellant's accounting, become a bad debt ripe for deduction by the respondent.
The court pointed out that the appellant did not discharge its evidential burden to prove that it complied with any one of the two options the appellant claimed to have complied with under section 25 (5) (a) of the ITA.
It was for the above mentioned reasons that the appeal was dismissed.
The appellant, a limited liability company dealing with the business of production and supply of natural gas, was involved in a tax dispute with the respondent.
The main issue for determination was whether or not the tribunal erred in upholding the board’s interpretation of s17 of the Income Tax Act (ITA) thereby agreeing with the disallowance by the respondent, of depreciation allowance sought to be deducted by the appellant from the income.
The court held that a person is entitled to depreciation allowance only upon meeting the two conditions stipulated in s17 of the ITA. The depreciable assets must be owned and employed in the production of the income in question.
The court stated that although the expenditure incurred in the production of the income from the business of natural resource prospecting, exploration and development shall be treated as if it were incurred in securing the acquisition of an asset, hence entitling the person to depreciation allowance on that asset, such an asset must have been in production of the income. The deduction of depreciation is based on capped life of the asset as from the first year of the production of the income.
In the result the appeal was dismissed as it was devoid of merit.
The issue was whether the eviction of the plaintiff from her house was a result of any wrongful and/or fraudulent order by the defendant.
The plaintiff's suit was founded on the tort of misfeasance in public office. The tort of misfeasance in public office had two forms, namely (i) cases where a public power was exercised for an improper purpose with the specific intention of injuring a person or persons, and (ii) cases where a public officer acted in the knowledge that he had no power to do the act complained of and that it would probably injure the claimant
The court held that the plaintiff had to prove that the first defendant exercised his power in execution of the decree in the matter for an improper purpose with the specific intention of causing injury to the plaintiff.
The plaintiff however, as held by the court, failed to discharge her burden of proof required of her that the first defendant made any wrongful or fraudulent order resulting into evection of the plaintiff from her house in execution of a decree in case. Simply stated, the evidence led by the plaintiff was too insufficient to discharge a burden of proof on the tort of misfeasance in public office.
In the result, the plaintiff's evidence alleging fraudulent acts fell short of the standard required and the suit was dismissed.
The appellant appealed the decision of the trial court to rely on an affidavit of a court process server, having held that service was properly done. The prime issue for determination was whether the appeal was meritorious.
Order V Rule 16 of the Civil Procedure Code provides that where the serving officer delivers or tenders a copy of summons to the defendant personally or to an agent or other person on his behalf he shall require that person to sign an acknowledgement of service, if refuses to sign the acknowledgement the serving officer shall leave a copy thereof with him and return the original together with an affidavit stating that the person refused to sign the acknowledgement) that he left a copy of the summons with such person and the name and address of the person (if any), by whom the person on whom the summons was served was identified.
The court held that these specifications were not indicated in the process server's affidavit and the trial court never bothered to establish and ascertain if the service was properly done to the appellant to accord her the right to be heard.
The decision of the trial court giving rise to this appeal could not be allowed to stand on account of being arrived at in violation of the constitutional right to be heard. In the result the appeal was granted.
The plaintiffs instituted a land suit against the defendant praying the court declare that the defendant wrongly demolished the Madrassa building without any authority or order from the authorities. On the other side the defendant filed a written statement of defence stating that the suit was bad in law and ought to be dismissed, for lack of a paragraph invoking the court’s original jurisdiction, contrary to a requirement in law. Additionally, the defendant stated that the monetary claim pleaded was based on general damages and the court had no jurisdiction to entertain the suit.
The main issue determined by the court was whether the court had pecuniary jurisdiction to entertain the suit.
The court held that it was a mandatory requirement under Order VII Rule 1 (j) of the Civil Procedure Code that a plaint should contain a statement on the monetary value of the subject matter. This was not only for the purposes of determining courts' pecuniary jurisdiction, but also for assessing the court fees. Therefore, the failure by the plaintiffs to indicate in the plaint a statement of the value of the subject matter of the suit had an effect on both the jurisdiction and the court fees.
To conclude the court held that it had no jurisdiction and thus had no need to proceed on and to deliberate on other points of the preliminary objection as its hands were tied.
The applicant sought an order for a temporary injunction against the intended sale of a mortgaged property pending final disposal of a suit pending. The applicant's complaint was that his inability to service the loan was a result of the respondent's freezing of his account which made it impossible for him to perform his obligations under the credit facilities agreement.
The main issue was whether the applicant had established sufficient grounds to have the temporary injunction granted.
The court held that there were certain preconditions which a litigant had to meet before the court exercised its discretion to grant an application; for example demonstration that the applicant stood to suffer irreparable loss requiring the court’s intervention before the applicant’s legal right was established and proof of greater hardship and mischief suffered by the applicant if the injunction was not granted than the respondent will suffer if the order is granted.
The court also held that the conditions set out must all be met. Meeting one or two of the conditions will not be sufficient for the purpose of the court exercising its discretion to grant an injunction.
It is settled law that courts will only grant injunctions if there is evidence that there will be irreparable loss which cannot be adequately compensated by award of general damages. The court concluded that particulars of irreparable loss had not been given for the court's exercise of its discretion in the applicant's favour and so the application was dismissed.
The applicant filed an application for correction of arithmetical error from a consent settlement order. The respondent argued that a party seeking to have an arithmetical or clerical error corrected as it were in this application must do so within sixty days from the date of the decree sought to be corrected.
The question for determination by the court in this application was whether that power could be exercised at any time. To answer the question the court relied on the court of appeal judgment where it was held that "we are satisfied that the phrase 'at any time means just that at anytime' subject to the rights of the parties, there should be no point in limiting the time in which to correct such innocuous mistakes or errors which are merely clerical or arithmetical with absolutely no effect on the substance of the judgment. Hence if what was sought in Misc. Civil Application No. 57 of 1993 was merely to correct clerical or arithmetical mistakes arising from an accidental slip or omission; we agree that such correction can be made at any time subject to the rights of the parties”.
The court then concluded that the phrase ‘at any time’ was not be construed to extend beyond the period after a decree is fully satisfied.
The application was therefore dismissed.