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 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.
This appeal is in relation to whether an order of non-suit was the appropriate order. The appeal originated from an institution of an action against the respondents. The action was centred around an order for damages, due to an unlawful dismissal from employment. The respondent disputed these claims as they contended that the contract was lawfully terminated.
The courts below granted judgment in favour of the appellant. However, in the Court of Appeal a piece of evidence belonging to the appellant was expunged on the ground that those pleadings did not constitute evidence. An order of non-suit was made by the Court of Appeal. It is that order of non-suit that gave rise to this appeal at the Supreme Court.
The appellant submitted that there was a breach of the fundamental right to fair hearing as the non-suit was instituted before hearing. Furthermore, he claimed to have satisfactorily proved his case for damages on the now expunged evidence and that this was therefore not a case in which an order of non-suit ought to have been made.
This court resolved this issue in the appellant's favour and the judgment of the Court of Appeal was set aside. Accordingly, this appeal was remitted to the Court of Appeal to be heard by a different panel.
The respondent bought a piece of property from a third party. After the respondent had taken possession of the property, he became aware of the fact that his predecessor-in-title had mortgaged the property to the appellant. The respondent paid off the outstanding debt and thereafter demanded the release of the title deeds to him. Instead, the appellant demanded some authorisation from his predecessor-in-title before the documents could be released to him. The respondent instituted a claim on this basis. The trial court judgment was in the respondent’s favour.
After the respondent attached the property the appellant filed an application praying for an order staying execution of the judgment, particularly the sale of the property and ordered release thereof; before hearing of the application. The trial court dismissed this application.
The appellant eventually appealed to this court asking for the same. The appellant urged this court to allow the appeal, set aside the ruling of the court below and grant an order directing the High Court to retain the amount deposited as per judgment.
This court held that the order sought to be stayed was made by the trial court and there was no appeal against that order to the Court of Appeal. That being the case, it was held that it would be a wasteful academic exercise to delve into the merit of the issue. Consequently the appeal was dismissed.
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 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 appellant claimed from the respondents jointly and severally for general damages for physical injuries he sustained after being involved in the accident caused by the motor vehicle owned by the first respondent and insured by the second respondent.
The issue was whether the magistrate erred in law and fact by considering false evidence tendered by the witness of the respondents.
The court held that the appellant did not state if it was all evidence tendered in court which was false or which part of it is false and was considered by the trial court’s magistrate and used in making the decision of the trial court.
The court noted that it had the duty as an appellate court to review the record of evidence of the trial court in order to determine whether the conclusion reached upon the evidence received by the trial court should stand. Though the court was in agreement with the appellant that motor vehicle insurance companies were statutorily duty bound to pay compensation to the victims of the accident caused by the motor vehicles of their clients but the compensation to be paid must be proved to the standard required by the law.
The court found that there was also no evidence tendered to the trial court to establish the appellant sustained permanent incapacity but he sustained temporary disability as indicated in the said exhibit.
In this case, the appellant appealed the decision of the lower court to strike out the appeal against the trial court’s interlocutory decision for being incompetent. This case illustrates how final and interlocutory orders are distinguished.
The court considered whether the Court of Appeal was right to hold that the appeal from the High Court on the issue of jurisdiction was interlocutory for which an appeal must be lodged within 14 days.
The court was called upon to determine whether or not a court’s decision is final in the course of determining the appeal. The court held that a final order at law was one which brings to an end the rights of the parties in the action. On the other hand, an interlocutory order was only intermediate and did not finally determine the rights of the parties in the action. The court held that this case was an interlocutory motion and the order that had been granted by the trial court was a final order. Therefore, an appeal on the order of the trial court was a right under section 220(1) of the Constitution.
The court also referred to Alor v. Ngene (2007) 17 NWLR (Pt 1062) 163 which provided that where a decision of a court finally and completely determined the rights of the parties, it was final, but if did not then it was only interlocutory. Thus, the court concluded that the trial court’s decision was interlocutory and could not be said to be perverse.
The court dismissed the application with parties bearing their own costs.
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.
A company was in an earlier judgment ordered to pay specific damages for loss of business resulting from unlawful impounding of vehicles. Adjunct to that case, this case was an application for a decree by arrest and sending to prison of the Managing Director of the company. This is permitted in law as a way of executing and enforcing a judgment debt.
The applicants contended that they had appealed that judgment and hence he could not be arrested. The High Court held that the only application before the Court of Appeal was one to extend the time to file Notice of Appeal. Further a judgment debtor needs to show good cause as to why an application to execute a judgment should not be granted. The filing of an application to extend the time within which to file a Notice of Appeal is not good cause because there is already a judgment in their favour and they should be able to execute.
The court granted the application to send the Managing Director to prison unless the company paid the damages as ordered. However, the court did hold that the carrying out of the application should await the result of the appeal as carrying out the order may prejudice the appeal.
The matter stems from an alleged breach of an agreement of refund by the respondent against the applicant. The agreement in question arose from a breach of the shipping contract by the applicant resulting in the respondent incurring a penalty from Tanzania Revenue Authority.
The main issue is whether the court could order for the joinder of the shipper and agent as defendants even when the applicant does not intend to sue them. The court began by clarifying that it has unlimited powers to join any party as a defendant if it is necessary to enable the court to effectually and completely adjudicate upon and settle all the relevant questions in suit. However, this power is exercised under the guidance of the dominus litis principle that grants the plaintiff the power to decide whom to sue.
In its reasoning, the court could not find a reason why the joinder was necessary as the dispute in question arose from a communication in which only the applicant and respondent were privy. Furthermore, the court heeded the respondent’s contention that as master of her own case she should not be compelled to sue a person she feels she has no claim. The court thus rejected the application to join the shipper and agent as co-defendant.
The applicant applied to set aside an arbitration award made in 2015. It was argued that the arbitrator misconducted herself when she amended the award; when she awarded nominal charges to the second respondent; and gave no reasons for ordering costs against the applicant, who was successful at the arbitration.
An arbitration award may be set aside on the grounds of an error on the face of it when reasons given for the award are based upon a legal proposition that is erroneous. It was found that the arbitrator’s reasons for making the award were erroneous and contrary to the Civil Procedure Code when awarding costs against the winning party. No reasons were provided for apportioning the costs, and for heavily weighting the costs against the winning party.
A court may also set aside an award if it is bad on its face for involving an apparent error in fact or law, or it has not complied with the requirements of finality and certainty. The award was bad on its face as it granted costs based on an apparent error of law by apportioning greater costs to the winning party. It is trite law that the losing party should bear the costs of a matter to compensate the successful party for expenses incurred for having to vindicate their rights.
The court held that there was good cause to remit the part of the award on apportionment of costs for reconsideration by the arbitrator.
The applicant filed to the court an application for the execution of the decree by attachment and sale of the judgment debtor’s property.
The issue was whether an appeal can prevent the execution of an order.
The court noted that in any civil proceedings, where the notice of appeal has been lodged in accordance with rule 83, an appeal shall not operate as a stay of execution of the decree or order appealed from except so far as the high court or tribunal may order, nor shall execution of a decree be stayed by reason of an appeal having been preferred from the decree order but the court may upon good cause shown, order stay of execution of such decree or order. The court may, upon good cause shown order stay of execution of the decree or order. It is only where there is an order for order for stay of execution that a trial court is estopped from issuing an execution order.
The execution process has two stages. The first stage is the issuance of an executive order and the second stage is the enforcement of that order which is normally done in the registry or other designed officer in the registry.
The courts took into consideration the fact that there was no order or stay of execution and concluded that it could make an order for execution despite the pendency of an appeal suit.
Execution order was granted
This case concerned a dispute between the parties which had previously resulted in the matter being referred to arbitration and an award being handed down. The court considered an application to set aside that award. The respondents made a preliminary objection to this application on three grounds: (1) that the petition could not be heard as the filing fees had not been paid, (2) the application was time-barred, and (3) the failure of the applicant to adduce evidence of the arbitration award.
On the first issue, the respondent contended that as a non-government entity, the failure to pay filing fees renders the applicant’s petition liable to be struck out. However, the court considered the rule that a government party is exempt from making payment of filing fees. In determining who is a ‘government’ party, the court considered that this status extends to local government. Accordingly the applicant is exempt from paying filing fees.
On the issue of the application being time-barred, the court considered the argument that the time within which to institute action started running from the date of publication of the award. The court found that the time for challenging an award starts to run from the day the said award is filed in court for the purpose of registration and adoption. Furthermore, the period of limitation for filing an award without intervention is 6 months, but the time for challenging the same should be brought within 60 days from the date it is filed in court for registration and adoption.
On the third issue (the adduction of the arbitral award), the court considered that it was not properly a preliminary objection per the test articulated in Mukisa Biscuit Manufacturing Ltd v Westend Distributions  EA 696. The question of whether additional evidence ought to have been adduced is not amenable to treatment as a preliminary point of law.
Accordingly, all three preliminary objections were overruled.
The court considered an application for temporary injunction restraining the respondents from selling two seized motor vehicles. Furthermore, the court considered whether the right of seizure and sale can be exercised without the intervention of the court.
This case concerned an agreement for the sale and purchase of 10 motor vehicles. The applicant alleged that the agreement was oral, whereas the respondents alleged it was written. The applicant subsequently defaulted on the payment and the first respondent seized the vehicles and threatened to sell the vehicles on public auction.
The court found that the agreement concluded between the parties was in fact a written agreement.
The court considered the provisions of S 124 – S 128 of the Law of Contract Act. The basis of these provisions found that the pawnee may retain goods pledged for payment of any debt and may bring a suit against the pawnor upon the debt and retain the goods pledged as collateral security or he may sell the thing pledged.
The court found that the applicant (pawnor) defaulted in payment and the first respondent (pawnee) had the option of bringing a suit against the pawnor and retaining the goods as security or sell the thing pledged by giving the pawnor reasonable notice. If the proceeds are less than the amount due, the pawnor is liable to pay the balance. If the proceeds are more, the pawnee shall pay the surplus to the pawnor.
A pawnee, in possession of the title and the property pledged is entitled to sell the property without intervention of the court. However, in absence of possession, he cannot take the law into his own hands without the court’s intervention.
The court found that there was no clause in the agreement empowering the first respondent to take possession and sell the vehicles, and thus he cannot exercise his right without the court’s assistance.
The main case was dismissed because a party did not appear in court when it came up for hearing. The case dealt with an application to set aside the dismissal order of the court. The court held that an application to set aside a dismissal order must be based on sufficient reasons and the court has absolute discretion where sufficient cause is shown. What amounts to reasonable or sufficient cause has not been defined because the court should have the discretion to decide based on the circumstances of each case.
In this case, the applicant claimed they were not aware of the dismissal order. The court held that sufficient reasons were not shown and the court dismissed the application to set aside the dismissal notice because the lawyers were simply negligent.
This case concerned an action for breach of contract, and an objection to jurisdiction. The dispute emanated from a loan advanced to the plaintiff by the defendant. The plaintiff deposited his share certificate as security for the loan. The plaintiff contended that the loan was fully repaid and the security discharged; notwithstanding this the defendant informed the Dar es Salaam stock exchange that the share certificates has not been discharged and that the defendant still held an interest in the share certificate. The plaintiff complained to the court that the defendant’s conduct was defamatory and had affected its operation.
The defendant raised an objection to the claim arguing that the court lacked jurisdiction to hear the matter. It based its argument on the grounds that the claim was based on an amount below 100 million shillings. The plaintiff on the other hand argued that the claim was based on US $2.5 million, an mount which falls within the jurisdiction of the court if converted into shillings.
In deciding the case, the court dismissed the defendant objection and ruled that it had jurisdiction to hear the matter.
In this case, the appellant claimed that the trial magistrate erred in holding that the appellant had a contractual duty to inform the respondent of the garnishee order. This case illustrates the duty to inform with regards to garnishee orders that also applies to banks.
The court considered whether the trial magistrate erred in holding that the appellant was legally bound to inform the respondent on the existence of the garnishee order. The court held that a bank has the duty to inform a customer in good time of a garnishee order so that the customer may take legal steps if he so wishes. Thus, the court held that though a notice from the appellant had been made in good time the fact that it reached the respondent late amounted to a breach of the fiduciary duty between them.
The court also held that it is a principle of law that an issue not raised at trial will not be entertained on appeal. Thus, the appellant was not allowed to raise questions as to whether the garnishee order was satisfied nor whether it was set aside.
In considering general damages, the court held that the trial court was correct in awarding general damages. The court dismissed the appeal in its entirety.
The court considered the proper remedy for a sub judice matter. Further, if the matter was a pending suit according to High Court Procedure rule 47 in the absence of an application made within six months of the last adjournment.
The court held that in terms of Civil Procedure Code s 8 when a matter is found to be sub judice the proper order is an order for stay of the matter. The court also defined the term ‘hearing’ in the ambit of rule 47 of the High Court Procedure Rules. The court held that the term is neither defined in the rules nor Civil Procedure Code. In that light, the court held that when a matter is called for orders, there is an issue of law or fact which is determined. Further, hearing and trial have different meanings. Therefore, the term hearing in rule 47 covers any judicial session before a judge or registrar.
The court was of the view that it would not deal with the matter because the court and same presiding officer had previously made the order. The court also found that the matter was called for hearing while it was still pending, and the court decided to adjourn the matter sine die. In that light, the court concluded that there was no application made within six months of the last adjournment as required by rule 47.
The court accordingly dismissed the application.
The case dealt with an application by a decree holder to appoint a receiver to execute a judgment instead of a court broker.
The court held that appointment of a receiver is neither automatic nor a matter of right but is granted where there is no other effective away of executing a debt. The court held that the applicant did not provide reasons as to why a receiver would be able to execute the judgment better than a court broker. The court held that the court broker could be an effective route and hence a receiver should not be appointed. Both a receiver and court broker are accountable to the court so the court broker will be able to execute the debt effectively. Only when the court broker cannot execute effectively, can a receiver who is a disinterested third party be appointed.
The application was rejected.
Two distinct, but related cases are of relevance in showing the genesis of this application.
The first relates to the respondent seeking to enforce a contract of works. The second relates to the applicant’s claim to enforce an agreement to arbitrate (as per the contract agreement). In this application before the High Court, the applicant sought to have the former case stayed, pending the final determination of the latter.
The applicant claimed that he sought the order to stay the suit as there was an agreement to arbitrate; proceeding with the respondent’s claim would be nugatory. The respondent resisted this application on the basis of procedural correctness.
This court determined that the issue was to verify whether this court had jurisdiction to entertain an application for stay of the respondent’s case, in view of the notice of appeal that was instituted by the applicant.
It was held that this court lacks jurisdiction over the latter case; it is the Court of Appeal which holds jurisdiction. Therefore, the matter was dismissed in its entirety.
In this case the applicant sought relief to set aside an ex parte order. The case illustrates the enquiry into determining who can rightly sue in the name of a corporation.
The court considered whether the High Court had made a consent order, or an ex parte order. The court held that though the order against the fifth respondent was a consent order, the order against the applicant was ex parte because the applicant was not present. The court held that the law gives the remedy to set aside an ex parte order and that it had the power under s 93 of the Civil Procedure Code (CPC) to enlarge the time period for an application.
The court considered the issue as to who was entitled to bring an action for and on behalf of the applicant. The court held that it was the company alone that could initiate or defend proceedings and not a shareholder of the company. The court held that it appeared that there were disputes regarding the internal management of the applicant. Thus, the shareholders or counsel who had initiated the application were not authorised persons.
The application was dismissed and the rest of the arguments regarding extension of time to file the application were set aside without determination.
The parties concluded a loan agreement to facilitate the appellant’s purchase of immoveable property. The appellant provided 30% of the fee while the rest was covered by the loan amount. Upon purchase, the property was assigned to the respondent. When the appellant defaulted on payment, the respondent purported to sell the property in execution of the debt.
The appellant contested the legality of this recourse, arguing that the relationship between the parties was such that the respondent held the property in a trust, for her benefit as part-owner, and would do so until which time she had paid back the amount owing. The appellate court concurred with the trial judge that the parties’ transaction clearly amounted to an equitable mortgage – rather than an implied trust – and that the respondent could dispose of the property in execution of the debt without the appellant’s consent.
The trial court’s decision to non-suit the plaintiff/respondent was also upheld by the appellate bench, who considered the well-established criteria for such an award. As the plaintiff had not failed in toto to prove its case, the defendant was not in any event entitled to the court’s judgment and no injustice would be caused thereto by the order, the relevant factors were deemed satisfied.
The appeal was dismissed.
The case concerned an appeal against the ruling of the High Court relating to land ownership.
Based on the evidence adduced in the High Court, the court had to consider whether the appellant and the respondent proved their respective cases and whether the land in question was clearly described during the trial.
The court held that only the appellant was able to prove his case and that the land in question was clearly identified by the appellant.
The court went on to state that the appellant was able to prove title to the land in question through his grandfather and that the respondents did not dispute the claim. Furthermore, the respondents asserted in their pleadings that the land in question was acquired by the state but failed to discharge the burden that rested on them in proving so. The court ruled in favour of the appellant in so far as him being able to clearly identify and describe the land in question.
The appeal succeeded, and the judgment of the High Court was set aside. The court confirmed that the title of the land vested in the appellant and granted a perpetual injunction restraining the respondents from trespassing on the land.
The appellant challenged the decision of lower court where the respondent as judgement creditor was granted an order for revalidation of the judgement and an order for compliance judgment. On the appeal, the issue was whether the application was time-barred and grounds to grant the appeal.
The court held that money judgments automatically expire after ten years, therefore, the judgment creditor must file revalidation before the expiration of the ten years. Also held that judgements of courts remain valid until set aside by a court of competent jurisdiction.
The court found that the application is not statute barred and that the application had merit. The court ordered that the judgment on 12 March 2001 remained valid and that the respondents to comply with the orders in the judgments.
On the cross-appeal, the issue was whether the judgment of 12 March 2001 is barred by Limitation Law of Bauchi State ss 16(1) and 16(2).
The court held that a judgment of a competent court is valid from the date of delivery until set aside by the court either on the grounds of lack of jurisdiction or court of appeal. Moreso, rules of practice and procedure do not confer jurisdiction to extend the time for enforcement beyond ten years as stipulated in ss 16(1) and (2).
The court found that the lower court did not have statutory authority to extend the time for enforcement after the expiry of ten years.
The court dismissed the appeal.
The court determined the principles of granting a stay of execution and injunction pending appeal in a case that involves a state government.
The first respondent raised a preliminary objection on the jurisdiction of the court, since there was a stay of execution pending in the court below on the same issue and the first appellant had not appealed on the attachment of the appellant’s monies in banks (garnishee order). In determining its jurisdiction, the court applied Order 4 Rule 6 of the Court of Appeal Rules 2011 (Rules of the Court) and held that it had discretionary powers to make injunctions pending appeal even when no application lied in the court below depending on the facts and circumstances of the case. Additionally, the court held that there was an appeal predicated on the garnishee order thus the issues were properly before it.
The court set out the principles of granting a stay of execution and injunction pending appeal: to preserve the subject matter of the appeal from irreparable damage pending appeal. It also held that the principles are applied when a party has an arguable appeal and to enhance public interest.
The court observed that the appellant had admitted its indebtedness to part of the judgment debt and held it just and fair to refuse the application with respect to that amount. The court held that the trial court erred in granting garnishee orders on balance of the judgment debt. Accordingly, the application succeeded in part.
This is an appeal against a High Court decision granting a summary judgement. The dispute emanated from share trading facility offered to the appellant company by the respondent bank. However, the appellant failed to pay for the shares when payment fell due, prompting the respondent to approach the court where a summary judgement was awarded in favor of the respondent.
The appellant appealed the decision on the ground that it was not given a fair hearing. It pointed out that the determination through summary judgement ignored issues of merit. The appellant argued that sufficient issues had been raised to warrant a full trial of the case, and that it had a bona fide defense.
The respondent opposed the appeal on the basis that the summary judgement was employed to prevent a sham defense, and that an objection to summary judgement must address a specific claim not a general sweeping denial of the claim.
The court held that the case hinges on whether the appellant’s defense constitutes a triable issue. It found that the appellant failed to raise triable issues. It held that the trial court was correct in finding that the appellant defense was a sham. It ruled that the appellant was indebted to the respondent. The appeal was thus dismissed.
The court considered three issues. Firstly, how a court should exercise its discretion in regulating a motion meant to regularise the process and the other meant to terminate the process. Secondly, whether the respondents were necessary parties to the suit. Lastly, whether the trial court was correct in awarding costs.
The court held that the practice was to give priority to hearing a motion set to regularise a process if the motion succeeds the other motions seeking to terminate the proceedings will be withdrawn. The court also held that respondents are necessary to a suit if they would be directly or financially affected by the outcome of the judgement of the case. Also, the court held that courts have absolute discretion to either award or refuse costs.
The court found that the trial judge instead of taking the motion for joinder and amendment, preliminary objections of the first and second respondent based on jurisdiction were taken which were meant to terminate the points in limine. The court also found that the respondents were necessary parties because they are not only interested in the subject matter of the proceedings, but they constitute those who in their absence the proceedings could not be fairly dealt with. The court found that the costs awarded were not exceptionally high or punitive to conclude that the court's discretion was not in the interest of justice.
The court accordingly upheld the appeal.
The issue was whether a claimant is allowed by court rules to file witness statements and other documents in reply to a defendant’s defense to a claim.
The dispute emanated from a lower court’s decision to strike out the appellant’s reply to the respondents’ defense. The reply was struck out on the basis that it contained a written statement on oath and documents which was regarded as an amendment of the pleadings.
The appellant was challenging the decision to strike out on the grounds that the court rules impliedly provides for further documents and statements in reply to a defendants’ defense. On the other hand, the respondents opposed the appeal on the ground that the court rules do not provide for a reply to be accompanied with a witness statement and any other document.
In deciding the matter, the court held that order 18 of the High Court rules which deals with a reply to a statement of defense does not require that any document or statement shall be accompany such reply. It further ruled that where the words in a statute are clear and unambiguous, they ought to be accorded their simple grammatical interpretation. The appeal was thus dismissed.
The dispute emanated from an agreement between the appellant and the respondents to clear a debt owed to the appellant by the respondents. The agreement provided for reduction of the debt on the grounds that the respondents pay an initial payment of 500 million and the balance before the exit of Central Bank examiners who had who had come to inspect the appellant bank. After payment of all debt, the appellant required the respondents to pay R5.5 billion alleging that it did not pay the balance as agreed.
The respondents approached the court and an order that parties should maintain status quo until the matter was resolved was granted. The appellant then filed a petition to wind up the respondents which prompted the respondents to approach the court seeking a committal order arguing that the appellant was in contempt of court. This was opposed by a preliminary objection seeking to strike out the committal order. The court granted the objection while pointing out that it had no jurisdiction to decide on the matter.
The appellant appealed the decision to strike out citing lack of jurisdiction of the trial judge and that the judge did not consider all issues raised by appellants and that it should have dismissed not strike out the committal order.
The held that the trial judge correctly dealt with the issue and that since he had no jurisdiction, it was not necessary for him to consider issues regarding the merits of the case and dismissed the appeal.
This was an appeal against a decision of the court allowing an ex parte motion for the winding up of the appellant. The appeal was premised on the ground that the ex parte order was made against other parties who were not parties to the proceedings and were deprived of the right to be heard. The appellant further argued that the ex parte order was made without notice of the motion seeking the said orders being served on them which was regarded as contravening Order 4 of the Companies Winding-up Rules (the rules). The appellant also alleged abuse of court process by the respondent.
The respondent opposed the appeal by pointing out that issues raised by the appellant were substantial issues which cannot be dealt with in a preliminary objection. The respondent further disputed allegations of abuse of court process arguing that they at no point maintained two similar cases against the appellant.
The court held that where an order made by a court affects the interest of a non-party to a suit, the said party whose interest has been affected should complain. It ruled that it was out of place for the appellant to complain on behalf of the other parties. The court further pointed out that Order 4 of the rules does not allow freezing of assets and that the respondent breached Order 4 by filing an ex parte without serving a notice on the appellant. Thus the appeal was upheld.