Commercial Law Index

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, [2004] 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 [1997] 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.   

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.
 

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 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. 
 

Administrative law – judicial review- determining whether and administrative body acted ultra vires

The underlying dispute between the parties related to an entitlement of the appellants to a proper statement of account by the respondents. The question at issue was whether the order of the high court was appealable and if so, whether the appellants had made out a case for a two-state judicially controlled procedure, dealing first with the adequacy and second with the accuracy of the accounts.

In making a decision the court was guided by the principle that a judgment or order has three attributes, first, the decision made must be final in effect and not susceptible of alteration by the court of first instance; second, it must be definite of the rights of the parties; and third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings. The principles however are neither exhaustive nor cast in stone. An order may not possess all three attributes, but will nonetheless be appealable if it has final jurisdictional effect.

The court held that the order of the court a quo had effectively precluded the appellants from contesting the adequacy of the accounts, an issue that had been a bone of contention between the parties thus making the decision of the court a quo appealable. In the result, the appeal succeeded. 

South African Airways (SAA) received government funding on four occasions (since 2007). The applicant contended that SAA’s operation was non-commercial, anti-competitive and prejudicial to other air transport services. The decisions to issue a R5.6 billion guarantee to SAA on 26 September 2012, and to extend the guarantee’s period, were the subject of the review. Applicant argued that the decision was unlawful and ultra vires of the Public Finance Management Act; violated the separation of powers; violated sections 7(2), 9, and 22 of the Constitution; irrational; procedurally unfair; and in violation of Comair’s legitimate expectations.

The court held that pronouncing on the legality of the first decision was moot as there would be no utility in the order or in pronouncing on the issues related to it. It was separate from the extended guarantee. Furthermore, the court found that it did not have jurisdiction to decide issues based on Competition Law. The court also held that it was not in its jurisdiction to decide on matters of policy, to which the decision to issue the guarantee amounted.

Due to the dynamic nature of the market, need for flexibility, and to intervene in the dire circumstances of SAA as a strategic asset, the court held that there was no basis for forming a legitimate expectation by the applicant. The court also held that the decision was rational as it considered all relevant factors and involved multi-level input from different governmental departments.

The application was dismissed with no order as to costs.

This was an application for an order that a writ of
mandamus doth issue ordering the Treasury
Officer of Accounts to pay the applicants.
When the application came up for hearing, learned
counsel for the respondent, raised an objection.
She argued that under rule 5 (1) of S. I. 11/2007,
an application for judicial review should be made in
a period of three months from the time when the
decision was made. According to her, the
impugned decision was made many years ago, so
the application is out of time.

The matter dealt with an application for foreclosure and sale of mortgaged property as a result of failure to make loan repayments by defendant.

The main issue was whether the plaintiff could exercise its right to foreclose the property. The court cited s 8(1) of the Mortgage Act that allows one to redeem the property at any time of breach and or to get a court order effecting the redemption. Reference to How v Vigures was also made regarding the triggers for foreclosure proceedings as being when due payment has not been made on date for redemption (default) or when there is a breach of any terms of the mortgage.

The court established that as the defendant had not complied with the terms of the credit facility agreement by not paying the agreed monthly instalments for a period of two years despite repeated demands, the exercise of the right to foreclosure was held to be fit and proper.

The court therefore concluded that the plaintiff could exercise the right to foreclose and accordingly allowed the application.

This was an appeal from decision of the Court of Appeal on grounds that;

The Justices of Appeal erred in law and fact when they granted orders for
cancellation of the fifth appellant’s title to the suit property which was neither
sought nor pleaded by the respondents, thereby occasioning miscarriage of
justice.

The plaintiff supplier sued the defendant – its Local Technical Representative (LTR) in accordance with the National Drug Authority Act for the distribution of pharmaceutical products – for breach of contract. The defendant failed to pay the plaintiff for the assorted products it supplied. The plaintiff consequently claimed for loss of income, damages, interest and costs of suit. The defendant lodged a counter-claim alleging that the plaintiff/first counter-defendant had breached the memorandum of understanding concluded between the parties and had, through various means, attempted to cripple the defendant’s/counter-claimant’s enterprise. It alleged further, as the basis of its challenge to the legality of the arrangement between the first and second counter-defendants, that the just-mentioned parties had colluded in this endeavour so as allow the latter to become the new LTR. 

The defendants/counter-claimants successfully raised the procedural bar of res judicata – which prohibits judicially-decided matters from being heard afresh a second time – concerning the plaintiff’s claim, given that the matter of their indebtedness thereto had been resolved in the settlement of antecedent winding-up proceedings. To what extent ought the defendant’s/counter-claimant’s challenge have been raised as part of the previous lawsuit? Suggesting that res judicata was applicable to both parties’ claims, the court nevertheless considered the counter-claimant’s’ case in respect of the first and second counter-defendants and found no measure of illegality or bad faith on the evidence. The counter-claimant was additionally time-barred from seeking review of the National Drug Authority’s decision over the LTR change. 

The plaintiff’s suit and defendants’ counter-claims were accordingly dismissed with costs.
 

The court made a ruling on a preliminary objection raised against a suit filed by the respondent to review a consent judgment executed between the applicants and the Uganda Revenue Authority. The applicants submitted that the respondent lacked locus standi to make the application according to Order 46 rule 1 of the Civil Procedure Rules.

The court went into some detail and examined who a ‘person aggrieved’ is. It was held that the expression referred to a person who suffered a legal grievance. However, the court in its interpretation followed English law and held that the expression cannot be restricted to definite categories with sharp definitive lines (restrictive interpretation). Consequently, the court held that the expression would also cover public interest litigation as embodied in the Ugandan Constitution, to include a member of the public who brings an action to ensure that the law is enforced or upheld.

The court noted that the objection was procedural and that the respondent’s application for review was procedurally incorrect since it was framed as a public interest litigation application. The court therefore determined that the main issue before it was whether a wrong procedure invalidates the proceedings. The court relied on article 126(2)(e) of the constitution in making a holding that the court had jurisdiction to determine the matter without undue regard to the technicalities.

Accordingly, the court dismissed the application with costs.

The court considered an application where the applicant argued that the Court of Appeal, in an earlier judgment in the same case, erroneously misconstrued s 272 of the Succession Act. The court held that an appeal could be re-heard if the matter is of great public importance. The court confirmed that great public importance and general importance depends on the facts and circumstances and may vary from case-to-case. 

The guidelines for what would constitute public or general importance in certain cases are statements of law which affect 

(1) a considerable number of people in their commercial practice; 
(2) enjoyment of fundamental rights; 
(3) the proper functioning of public institutions; 
(4) the court’s scope to dispense redress; or (4) the discharge of duties of public officers. 

If an appeal meets one of the criteria constituting public or general importance, the court will be permitted to re-hear an appeal on its merits. The court in this case held that this case raised a question of law of general importance and could be reheard.
 

The appellant sought a declaration that it was the lawful owner of a piece of land in dispute, and that the respondent has been a trespasser. The respondent filed seeking to strike out the appellant’s suit for being time-barred. The trial judge allowed the application. The appellant appealed to the Court of Appeal against the dismissal. The Court of Appeal found no merit in the appeal and dismissed the same, hence this appeal.

The issue for determination for the appeal was whether the appellant could appeal to the Court of Appeal against the order of the trial court without the leave of court.

The court applied the principle that if the decision conclusively determines the rights of the parties, then it would be a decree; otherwise it would be an order. If for instance portions of a plaint are struck out as being frivolous, or if a suit is stayed, such a decision would be an order, whereas if a suit is dismissed with costs, that would be a decree. A decree is appealable as of right, whereas under the Civil Procedure Rules most orders are only appealable with leave of the court.

In applying the principle, the court found that the High Court decision disposed of the suit conclusively and the decision was therefore a decree within the meaning of s 2(c) of the Civil Procedure Act, even though it was worded as an order. It held that the appellant therefore had a right of appeal as against the decision and did not need to apply for leave to appeal to the court of appeal.

The appeal succeeded.