Commercial Law Index

The appellant sought a declaration against the respondent that the Constitutional Court erred in refusing to award the appellant costs as a successful party and that it also based that refusal to award costs on incorrect principles.

The reference on taxation can be made to the Supreme Court on two grounds namely; on a matter of law or principle or on the ground that the bill of costs as taxed is in all circumstances manifestly excessive or manifestly inadequate.

The court held that there was no principle of law to the effect that the decision of the taxing officer must be subjected to the application of a ‘magic formula’ which when applied would result in a precise figure being arrived at in an almost automatic manner. Every case must be decided on its own merits and its peculiar circumstances, such as prolixity of the case in its preparation and any other peculiar complications in its presentation to the court. 

The court held that, due to the difference in cases, uniformity and consistency may at times be defeated. Moreover, other factors ought to be considered by the taxing master. The fund or person bearing the costs must be considered before setting the award. A balance has to be struck between keeping the costs of litigation as reasonable as possible so as not to restrict access to court to only the wealthy, and the need to allow reasonable level of remuneration of advocates to attract worthy recruits to the profession.

In the result, the application was upheld.
 

The court considered a review application arising from an application surrounding a facilitation agreement between the parties. 

A receiver was appointed and it was alleged that there was a conflict of interest. The first respondent was appointed, but the directors refused to hand over the management of the company. An order was sought, to declare the duties and functions of the receiver. 

The court held that it was the receiver’s duty to make returns and accounts, to uphold his fiduciary duty to the company and investigate the causes of the company’s failure.  Therefore, the receiver was expected to take charge of the business. 

It was found that there was nothing prohibiting the appointment of a receiver from the same firm representing the creditor. The applicant argued that it was an error on the face of it to appoint the advocate of the second respondent as the Receiver as it was a conflict of interest.  

The court found that an error on the face of it must be an error on a substantial point of law staring one in the face, leaving one with no other options. Whereas, an error which has to be established by a process of reasoning, cannot be said to be an error on the face of the record. 

The court found that the applicant was asking the court to review something that was never an issue in the original application. 

The court held that to bring an application for review on a prayer which did not form part of the original application is improper and would cause an injustice. 

Application dismissed. 
 

This is an application to annul the consent order that was executed between the respondents and the cancellation of the third respondent’s title. The appeal was issued by the registrar against the decision of a judge who dismissed an application by the first respondent against the second and third respondents. The appeal is premised on grounds that the registrar had no jurisdiction not issue the orders and the consent is illegal.

The matter involved a claim by the applicant against the defendant’s conduct of unlawfully blocking and deducting monies from his salary account.

First, was whether the court, as a commercial division, had jurisdiction over the matter. The court reasoned that as it dealt with crediting and debiting of the applicant’s account, the matter therefore lay in the ambit of a banker customer relationship. The court was therefore had jurisdiction as it was a commercial matter. 

Next, was whether the applicant’s account had been unlawfully deducted and consequently who was liable, considering that the defendant had assumed the obligations of Crane Bank, the applicant’s original employer. The court found there was evidence that the applicant’s account had been credited with less money than he was earning for some time.

On the issue of liability, the court reasoned that despite the contractual exemption of liability upon assumption of Crane’s obligations by the defendant, the Employment Act required the employment obligations to transfer to the defendant as a matter of law. The effect was that the defendant was liable for the unlawful deductions.

Finally, the court dealt with the question of damages. The court used its discretion to put the plaintiff in the position he would have been but for the wrong, as required by law. The court, using its discretion, also awarded interest to the applicant on the basis that applicant had been deprived from own monies. It however denied the claim for exemplary damages as it could not establish malice, outrage or impunity in the conduct of the defendant.