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 was an appeal of a decision of the Court of Appeal that allowed a defective notice to commence suit for compensation against the respondent who was adversely affected by the execution of an approved development plan.
The court mainly dealt with the procedural grounds of appeal. The court determined whether the Court of Appeal erred in holding that the holding that the respondents had complied with the provisions of s 127 of the Local Government Act, 1993 in service of notice to commence suit and form of the notice on record. The court found that the notice was seriously defective and set aside the respondent’s action against the appellant. The court applied the rule that courts have no authority to grant immunity from consequences of breaching a statute unless the statute is incurably bad. The court also determined whether the Court of Appeal misdirected itself in holding that the application of provision under section 56 of the Local Government Act, 1993 is discretionary. The court interpreted the word “may” in this section to have a mandatory effect even though not stated in mandatory terms. Accordingly, the appeal succeeded and the judgment of the High Court was restored.
The key issues in this appeal were due compliance with time set down by the rules of court, and the principle of the audi alteram partem rule (right to be heard).
The court considered whether the Court of Appeal erred in disregarding the fifth respondent’s non-compliance of time set down for filing statement of defence. The court noted that this was caused by the ambiguous order by the Court of Appeal and confusion in the registry. Therefore, this and other grounds relating to case management directions by the court of appeal were dismissed.
The court also considered whether the court of appeal’s finding that the fifth respondent’s right to be heard was breached, was erroneous. The court affirmed the decision by the court of appeal and held that it lacked jurisdiction to proceed against a party who was not served or notified of a hearing date.
Accordingly, the appeal was dismissed and the court ordered the case be remitted to the High Court to be heard on its merits.
The court exercised its original jurisdiction to interpret constitutional provisions relating to the right of the General Legal Council to introduce examinations and interview as requirements for admission into the practical component of the law course.
The defendants raised a preliminary objection disputing the jurisdiction of the court claiming there was no issue of interpretation and also claimed that the plaintiff lacked locus standi (standing to bring the matter before the court). The court held that the matter was of public interest thus the plaintiff did not have to demonstrate personal interest. The court determined whether the imposition of the new admission requirements was unconstitutional. It was held that the council had the authority to do so but it was unconstitutional since the new requirements were implemented without legal backing (regulations). Secondly, the court determined whether the council’s failure to specify alternative places and modes of instruction for students who qualified to join the school of law was unconstitutional and held that the plaintiff was unable to prove the same. Accordingly, the matter succeeded in part and the court declared that the new admission requirements that led to exclusion of qualified persons were unconstitutional and that the Council’s policy on reviewing examination scripts and quota violated the constitution.
This appeal is based on a decision of the Court of Appeal that waived the respondent’s non-compliance with prerequisites to the issuance of a writ under Order 2 rule 4(2) of the High Court (Civil Procedure) Rules 2004.
The court determined whether the non-compliance was fatal to the proceedings. The court noted that the provisions of Order 2 rule 4(2) are obligatory, thus could not be waived as per Order 81 of the High Court (Civil Procedure) Rules 2004. The court held that non-compliance with the rule rendered the writ void. The court applied the mandatory rule that a plaintiff should disclose the identity and addresses of all persons on whose behalf it is suing, and when the rule is not complied with the writ cannot be amended after its issue. Accordingly, the court upheld the appeal and the writ of summons issued on 4 March 2010 were declared a nullity. Consequently, all proceedings and judgments of the High Court and the Court of Appeal were set aside.
This was an appeal based on the decision of the trial court to try the question of res judicata as preliminary point of law. Res judicata dictates that once a matter is decided by a competent court it cannot be reopened in subsequent litigation.
The court held that the trial court erred in its interpretation of order 33 rule 5 of the High Court (Civil Procedure) Rules, 2004 by purporting to put an end to the full scale trial. The court held that in such circumstances, a plea of res judicata should only be sustained if it would result in a substantial disposal of the matter or render the determination of the other issues in the matter unnecessary. The court considered the uncertainty over the subject matter and the fact that a merit consideration of the action had already begun (at the trial court).
Accordingly, the appeal was upheld and an order made for the case to be remitted to the trial court for a re-trial.
This appeal considered whether the respondent was barred from re-litigating a matter concerning a dispute on the ownership of property based on the concept of res judicata. Res judicata dictates that once a matter is decided by a competent court it cannot be reopened in subsequent litigation.
The court applied the rule that an appellate court must evaluate the evidence on record as if the case is being heard afresh. The court noted that the plea of res judicata was not explicitly set out by the appellant in the High Court though it was raised as a ground of appeal to the court of appeal. The court observed that the previous courts failed to consider the plea. Base on the evidence on record, the court was satisfied that the properties described by the respondent n her writ of summons had once been litigated and held that the respondent was estopped from re-litigating the issue.
Accordingly, the court set aside the decisions of the High Court and Court of Appeal and deemed it worthy to consider the other grounds of appeal.
The application was lodged as a response by the applicants (General Legal Council) to a decision of the Court of Appeal setting aside orders granted to them allowing for the suspension of the respondent from legal practice. The applicants sought leave to appeal against this decision.
In response, the court began its adjudication from the position that a special leave application is not concerned with substantive issues but rather with whether it satisfies the case law principles that there must either be (a) a prima facie error on the face of the record, or (b) a general legal principle arising for the first time, and or (c) that the Supreme Court decision on the appeal would be advantageous to the public.
The court assessed the grounds propounded by the applicants which in essence included allegations of fundamental errors that go to jurisdiction and which a determination by the Supreme Court would be advantageous to the public. The court reasoned that these issues were so important that a decision on them would have a public good. It therefore decided to allow the application.
This case concerned the reversal of a judgment handed down in this court by a single judge in terms of article 134(b) of the 1992 Constitution. Furthermore, the order handed down was non-executable and that the court erred in ordering the suspension of a non-executable order. Article 134 (b) prescribes what a three-judge panel may do after hearing an application brought by a party who is aggrieved with the decision of a single judge. The court considered whether a three-judge panel should apply the conditions applicable by an appeal or a review or a combination of the two. It was found that an application of this nature couldn’t be treated as an appeal since the full record of appeal will not have been placed before the court. It was therefore found that it should be treated as a special review, considering all factors and merits of the case. Therefore, all rules on review should largely apply. The court found that where there is no executable order from the decision of the court below, this court cannot make an order to stay execution. The court found that the decision by the single judge did not disclose what factors were taken into consideration to enable him to conclude that it was fair to grant the application. Thus, the record did not disclose any special circumstances. Application granted.
The plaintiff sought a writ (being a written order of the court to abstain from acting) against the defendants. The plaintiff asked the court to find that the court below did not have jurisdiction to determine matters involving the interpretation and enforcement of the Constitution. The defendants in turn raised a preliminary objection to the plaintiff’s writ.
This case considered the preliminary objection raised in objection to the writ and whether the court had jurisdiction to entertain the plaintiffs action calling for a writ against the defendants, thus did the plaintiff properly invoke the jurisdiction of the court and whether the proper parties were before the court.
The court found that in determining whether its jurisdiction had been properly invoked, they were obliged to look at the preliminary objection of the writ before them.
The plaintiff argued that a single judge lacked the jurisdiction to determine matters involving the interpretation and or enforcement of the Constitution.
The court found that its jurisdiction had been properly invoked. On the second issue the court found that the Plaintiff had capacity to bring the application before this court.
The court found that the first defendant was properly cited and was a party in this application, however the second defendant was not a party to the action as the plaintiff did not show any act or omission which would justify the plaintiff citing him.
The second defendant was therefore struck out.
Preliminary objection overruled.
The case concerned the parameters for determination when faced with a second appeal, as well as the elements to establish a plea of res judicata.
It was found that there are 4 instances when concurrent findings can be interfered with namely: 1) where the findings of the trial court are unsupported by evidence on record or where reasons in support of the finding are unsatisfactory, 2) where a principle of evidence has been improperly applied, 3) where the findings are based on a wrong proposition of law, and 4) where the finding is inconsistent with crucial documentary evidence on record.
In the second appeal it was argued that the matter was res judicata. Thus, that the matter has already been determined between the same parties before a competent court. The essential elements to establish for a plea of res judicata are: 1) there has been an earlier decision on the issue, 2) there has been a final judgment on the merits and 3) the same parties in both suits. The court found that the matter was not res judicata as although premised on similar facts with the same parties, the merits of the action differ. Furthermore, the court found that the decision of the lower court was perverse and unsupported by the evidence.
The case related to a declaration of title of a piece of land that was in dispute because both parties claimed ownership.
The court highlighted an appeal seeking to overturn a lower court’s decision must show that the court’s decision was wrong in law, did not take into consideration evidence or made findings in the absence of evidence. In essence a trial court decision can be overturn if it was not based on well-founded reasoning.
Further when suing on behalf a group of people, the party must clearly indicate so and failure to do so may affect that parties’ legal right to sue. Once you have indicated in what capacity you’re instituting a claim, you cannot subsequently change this.
The court in this case upheld and allowed the appeal because the Court of Appeal permitted the appeal that was not based on evidence before it. Further it was a fatality for the defendants to endorse their counterclaim by indicting they were doing so in a representative capacity.
The court was called upon to review a decision of the Court of Appeal that held that a lawyer without a valid licence to practice cannot practice law nor prepare any court process. The court below held that any process originated by a lawyer without a licence is null. The majority decision of the court held that where a lawyer endorses a writ and court process, but he did not have a licence at the time, he cannot be said to be functioning as a lawyer and not capable of endorsing the court process. A litigant who fails to verify the legal capacity of is lawyer cannot claim miscarriage of justice because the writ endorsed by an unlicensed practitioner is without legal effect.
The case related to a petroleum agreement between the Ghanaian government and a Norwegian company. The agreement was ratified by Parliament, but the Minister of Energy thereafter refused the company’s assignment of their Petroleum Agreement to its wholly owned local subsidiary. The question was whether Parliament’s permission is required to terminate a resource exploitation transaction, as they ratify it. The rationale for ratification is for transparency, openness and participation in matters involving natural resources but the exercise of checks and balances does not extend to approving termination of agreements that the executive has jurisdiction over. The court held that whereas Parliament ratified these agreements, the act remains an act of the executive and Parliament’s approval is not needed to terminate the agreement.
The dispute related to dishonored cheques that were issued for payment of supplies. After several cheques were dishonored, the respondents went to the premises of the appellant to recover the remaining products. The trial court award general, special and nominal damages. However, the Court of Appeal reduced the general damages. They also held that nominal damages should not be awarded when there was a failure to prove special damages.
The court dealt with three issues relating to a potential error of law when the Court of Appeal substituted their judgment for that of the trial High Court, failure by the Court of Appeal to exercise their discretion judicially and issuing a judgment against the weight of evidence.
The Supreme Court held that the Court of Appeal could not set aside the trial High Court decision when there was no appeal against the relief granted by the High Court or challenge against the findings made. The Court of Appeal can only set aside aspects of the judgment that have been appeal against. The Court of Appeal can only reverse a trial court if the trial court made orders that were oppressive, excessive or contrary to the law.
Litigation was commenced to recover a debt from a company incorporated in Australia that was wholly owned by a Ghanaian company. The High Court granted judgment in favour of the appellant for the amount due. The judgment was appealed because the respondent proposed a scheme of arrangement to reorganise their debts with their creditors. but the appellant subsequently the appellant filed a petition to liquidate the company as it was unable to pay off its debts. The court granted to wind up the company. However, the Court of Appeal granted a stay of execution of the winding-up before the respondent appealed the original decision of the High court to pay the amount due.
The appellant did not succeed with the appeal because they did not prove that the Court of Appeal failed to take relevant matters into consideration, considered irrelevant matters of misapplied the law.
The High Court gave a summary judgment in favour of a party relating to a declaration of title to a house, payment of accumulated rent and an order of ejection. The Court of Appeal overturned the judgment but invoked supervisory jurisdiction to make an order compelling issuing of land title to the interested party.
The court held that the interested party could not apply for the supervisory jurisdiction for a judgment that was overturned – and this was impermissible. A party is not permitted to undermine a decision of an appellate court overturning a decision of the trial court to apply for supervisory jurisdiction when the judgment to be supervised has been set aside. For these reasons the application to set aside the supervisory orders was set aside.
The court considered an application for a declaration on how to interpret an order made by the Supreme Court on the subject of a register of voters. The court provided that a party can apply to clarify a previous decision of the court to make it easier to understand, especially in cases where part of the judgment is ambiguous. The court has inherent jurisdiction to clarify a judgment, but such clarification cannot be used to make a substantive change to the existing decision. An application to clarify a judgment cannot be used to ask the court make the same order again as this would amount to suing a party again for the same cause.
The court in this case clarified the issue of what was meant by ‘delete’ names from the register of voters, but refused to clarify the judgment to the extent that would amount to modifying or altering the substance of the judgment.
The applicant commenced litigation but it was soon discovered that his legal representative did not have a valid solicitor’s licence. In an earlier Supreme Court decision in the same matter (Korboe v Amosa (J4/56/2014) GHASC 10 (21 April 2016) it was held that a lawyer cannot practice law for as long as they do not have a licence, and any process to commence court proceedings are null and void. The applicant prayed for review of that judgment because it caused injustice and there is no requirement that a person engaging or consulting a lawyer must be satisfied that he must have a valid licence. The court reiterated that Supreme Court decisions can only be reviewed if there are exceptional circumstances or there is critical evidence that was not available at the time of the appeal and not reasonably discovered. In other words, there should have been an error of law on the part of the court. In this case, the court held that even though the applicant was not aware of the lawyer not having a licence and the law doesn’t require him to inquire, the fact that the lawyer endorses the writ and court process renders it legally incomplete and null. It was held that the applicant failed to show an error of law or miscarriage of justice.
The matter involve a ruling of contempt of court against the third and fourth respondents for their conduct in attacking the Chief Justice with an accusation of bias.
The court emphasised the importance of judicial independence as enshrined in the Constitution as a necessary element in maintaining judicial dignity and effectiveness, attributes that are crucial in upholding the democratic enterprise. Any attempt to disrespect the courts therefore amounts to an attack on the role of the courts and the community at large.
The court also emphasised the right to criticise the judiciary and its circumspection in exercising its power to charge citizens with contempt. However, should the conduct be of such gross a nature as to indicate a calculated attack, as in the present matter, the court would not refrain from the charge.
The court, however, acknowledged the harsh nature of the summary powers to charge for contempt, powers it accepted required circumspection. Nevertheless, the court considered the need to send a message to remind people to refrain from crossing the line between utilizing their freedom of expression and attacking the dignity of the court. It also invoked the principles of state policy which place duties to the citizenry to ensure the exercise of their freedoms upheld fundamental democratic principles. In the view of the court, the contemnors in question had dismally failed the above and therefore they were sentenced for contempt.
In this case the appellant sought a reversal of an order made by the Court of Appeal overturning the lower court’s judgement. The appellant argued that the Court of Appeal had no authority to consider the appeal, because it was improperly constituted as it was filed out of time.
The Supreme Court considered whether the Court of Appeal (a) had jurisdiction over the matter despite the delayed filing of the appeal and (b) whether the appeal had merit to succeed.
The Supreme Court held that time limitations can be extended under certain circumstances and at the discretion of the court. In this case, however, the defendant (applicant before the Court of Appeal) did not provide any reasons for his delay nor a defence to the claim that the appeal was filed late. Consequently, the Court of Appeal had no jurisdiction to determine the merits of the appeal. The Supreme Court set the judgement aside and restored the High Court judgement.
This case concerns a dispute about land. The applicant sought an order of the Supreme Court to quash a mandamus order granted by the High Court. The applicant argued that the order made by the High Court breached natural justice because he was not served with the application in which the order was made. The Supreme Court held that the audi alteram patem rule, which requires a person to be heard in proceedings wherein a relief is sought that will affect him, must be followed in all circumstances. The evidence, in this case, showed that the applicant was not served, constituting a breach of the audi alteram patem rule. Given this breach of natural justice, the Supreme Court upheld the appeal and quashed the lower court’s order.
In this appeal the applicant contested a decision made by the Court of Appeal not to dismiss an appeal despite the fact that written submissions were submitted after expiry of the 21 day period provided by the Court of Appeal Rules (C.I.19). The applicant argued that the Court of Appeal failed to take into consideration rule 20 (1) and (2) of C.I.19. The Supreme Court held that it can only interfere with the decision if it has been shown that the lower court did not exercise its discretion judicially. The Court of Appeal must have taken rule 20(1) into consideration because it waived the non-compliance with that very rule. Rule 20(2) had already been repealed and was, therefore, no longer applicable. The Supreme Court, therefore, had no reason to doubt that the Court of Appeal exercised its discretion judicially and, consequently, dismissed the appeal.
The Fees and Charges Act (the act) calculated the plaintiff’s rent for five mining leases. The plaintiff challenged the Minister of Finance’s authority to amend the legislation.
Issue one: whether the Administrator of Stool Lands had any role to play in fixing annual ground rents. The court held that the Administrator did not fix the rates, but wrote to demand payment.
Issue two: whether the administrator was part of a review team that recommended the adjustments, amounting to prescribing annual ground rent. The administrator provided an advisory opinion with no legal force.
Issue three: whether the grant of power to the Minister of Finance was unconstitutional. A schedule forms part of an act. Subordinate legislation cannot amend an act; however, this rule is not invariable regarding schedules. Acts may empower another to revise the contents of a schedule, and this power must be expressly conferred by Parliament. It was found that it was.
Issue four: whether or not the Fees and Charges Instruments contravened the act and the Constitution. The Minister of Finance was empowered to amend the schedule in fixing fees and charges; however the inclusion of the administrator in the amended list was inconsistent with the Constitution, and void to the extent of this inclusion
Issue five: whether the power conferred on the Minister of Lands and Natural Resources was transferred to the Minister of Finance. The court held that no such transfer of power occurred.
Issue six: whether the failure by the Minister of Lands and Natural Resources to exercise the power conferred on him in the act violated the Constitution. The Minister of Mines was empowered in terms of the act; however the parties incorrectly cited the Minister of Lands.
The Minister of Mines was ordered to fix the fees and charges under the act.
The Supreme Court was approached to review a clarificatory decision previously delivered by the Supreme Court’s ordinary bench.
First the court considered whether it had jurisdiction to review its previous decision. It relied on rule 54 of Supreme Court Rules 1996 (C.I 16) which grants it the power to review decisions under certain circumstances. It rejected the argument that a clarificatory decision is not a decision under rule 54. The court therefore concluded that it had the power to review its previous decision.
The court then had to consider whether exceptional circumstances existed and have resulted in miscarriage of justice. It held that where a decision fails to consider a statute, case law, fundamental principle or procedure, exceptional circumstances which justify review of the decision exist. In this case, the clarificatory decision was based on a repealed statute and failed to consider the applicable statutory provisions. Consequently, court reviewed and rectified its previous decision to align it with the correct statutory provisions on the computation of interest on judgement debts.
The appellant in this case approached the Supreme Court, asking it to set aside its own previous judgement. The respondents filed a preliminary legal objection to the jurisdiction of the court that had to be considered first. The court held that there is no provision in either the Constitution, the Supreme Court Rules or an enactment giving this court the jurisdiction to review or to set aside a judgment by the review bench of the court. The court, therefore, upheld the legal objection and dismissed the appeal.
In order to deter similar frivolous and vexatious actions in the future, the court also exceptionally awarded costs against the appellant.
The applicant was seeking a clarification of a court judgement.
The case emanated from a dismissal of an appeal by the first respondent to challenge a decision of the High Court in favour of Fidelity Bank. The plaintiff sought clarification of the judgement. It sought clarification on the nature of interest to paid and why the applicant and the respondent were jointly liable for payment of outstanding loan.
The court held that there was a contract between the applicant and the respondent and it provided that the applicant should obtain a loan from Fidelity Bank (the bank). The bank required an undertaking from both the applicant and the respondent that they are going to be jointly responsible for the repayment of the loan. The court found that the respondent reneged on all payments under the contract in the joint names and thus contributed to the non-payment of the loan, hence its liability.
On interest, the court ruled that the undertaking between the parties bears three different interest rates. It pointed out that the parties in this transaction are governed by their undertakings hence interest is calculable on the terms agreed.
The applicant filed a motion before the Supreme Court in order to stay proceedings under the judgement of the appellate court pending final judgement by the Supreme Court.
With its limited jurisdiction, the court had to consider whether there were any proceedings that necessitated the staying of proceedings.
The court held that there were no such proceedings impending under the appellate court’s judgement that would warrant the staying of proceedings.
The court stated that ‘proceedings’ referred to lawful proceedings within the ambit of the rules and that such ‘proceedings’ were not evident in the application before the court.
The application was dismissed.
The appeal turned on whether the plaintiff’s action in the trial court was statute barred. The plaintiff claimed that he owned a plot of land that he later transferred to a company, which was erroneously confiscated by the government, and occupied by the fifth defendant. It was argued, however, that the plaintiff acquiesced to the unlawful occupation of the land.
The plaintiff argued that the land was never transferred to the state, and the plaintiff remained owner. This meant that the government could not transfer ownership in the land to another as it still belonged to the plaintiff, who had not acquiesced in the matter.
The court held that there was uncontroverted evidence that the plot was transferred from the company to Gold Coast Motors as early as 1991, of which the plaintiff was aware. There was nothing preventing the plaintiff challenging the presence of Gold Coast Motors or the fifth defendant. The court held that Gold Coast Motors was in adverse possession since 1991, and fifth defendants continued such when they purchased the plot. Adverse possession is open, visible and unchallenged, giving notice to an owner that someone is asserting a claim adverse to the owner’s right of ownership. Gold Coast Motors had exercised rights inconsistent with the plaintiff’s since 1991, and later sold the plot to the fifth defendant who continued the chain of adverse possession. Neither recognized the title of the plaintiff since 1991, of which the plaintiff was aware but failed to challenge.
The appeal was dismissed.
The appellant appealed to the Supreme Court because the lower court did not inquire into the scope of the arbitration agreement embodied in the main agreement executed by the parties, contrary to the provisions of section 6(2) of Act 798.The court held that the separation agreement provided categorically that any dispute that related to the validity of the agreement itself or the arbitration embodied therein had to be determined by arbitration. The decision to refer certain disputes to arbitration as indicated in the separation agreement arose from the consent of the parties the moment they appended their signatures to the agreement. Therefore, it had complied with the separation agreement.
Secondly, the applicant filed for appeal after three months instead of twenty-one days and did not advance any reason to explain why it failed to comply with the rules of the court. The court noted that it had the discretion to entertain such applications but had to question whether upon the facts, the discretion could be exercised in applicant’s favour. The court outlined the prerequisites for the grant of special leave to appeal as follows: an applicant who applies to the Supreme Court for special leave under article 131(2) must satisfy (i) why he did not avail himself/herself of the usual rights of appeal provided, and (ii) why he should be granted such special indulgence. The court concluded that the applicant did not advance any reason why it failed to resort to the normal appeal procedure and dismissed the appeal.
The application before the court concerns a multilayered application for summary judgement, an application for a writ to set aside consent judgement, an application to dismiss the writ and an application to the High Court to stay execution among others.
The court had to consider whether the High Court exceeded its jurisdiction (i) when it varied the ruling dismissing the 4th interested party’s application for the stay in execution pending the appeal, (ii) when it substituted the order to stay execution pending the appeal that had already been decided upon. Lastly, (iii) whether the High Court exceeded its jurisdiction regarding the 4th interested party for the suspension of the enforcement of consent judgement.
The court held that the application on the grounds (i) and (ii) be granted but dismissed the (iii) ground. The court went on to order a stay in execution pending determination before the appellate court. The court was of the view that the judges in the lower courts fell into an error of law and committed procedural irregularities.
The application was granted except on the 3rd ground, which was dismissed.