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 applicants applied to the High Court to stay the proceedings in the case and to release the properties attached to them in order that they would add them to other assets of the company to be sold for all depositors of the company to be paid. The High Court however dismissed the application and applicants being aggrieved by the orders made by the court filed an application to the Supreme Court praying for an order of certiorari to quash the decision of the high court.
The main issue being the lawfulness of the grant of leave by the high court to applicants to proceed with their case after the winding up had commenced.
The court held that upon commencement of a winding up only secured creditors are allowed as of right to sue or continue with pending civil proceedings for the realization of their security. Any other person who has a cause of action against a company being wound up cannot sue as of right but may do so only with the prior leave of the high court. Similarly an unsecured creditor who has pending civil proceedings cannot continue with them without leave of the high court. So the applicants in this case who were not secured creditors were within their rights to apply for leave to continue with their case and the judge acted in accordance with law in granting same.
The court dismissed the application.
This case concerned the appellant's entitlement to notice of meeting prior to removal as company director. The appellant claimed relief for a declaration that his purported dismissal was a repudiatory breach of his contract of employment and that he was denied the right to a notice meeting pursuant to sections 236, 262 and 266 of Companies and Allied Matters Act (CAMA).
The counsel for the respondent contended that against the background of the appellant's contention the trial court had no jurisdiction to entertain the complaint. Given the above claim of the appellant, he should have approached the Federal High Court for the resolution of his complaint of the breaches and not the trial court.
This court held that the dismissal of the appellant was not lawful because of lack of due process. However, the trial court below lacked jurisdiction and since the trial court lacked the jurisdiction to enter the matter, the lower court, equally, lacked the jurisdiction to deal with the appeal before it. Thus, the appeal was found to be unmeritorious and was struck out for want of jurisdiction.
The appellant contended that the respondent, contrary to the decision of the lower court, be held responsible for the debts of a company. The appellant contended that the company was a mere façade, as the respondent was both a shareholder and subscriber of the company. The contract of service between the parties was not in writing. The court held that it is only when the claimant has proved the existence of the contract that the burden will shift to the defendant to prove his denial of its existence.
The main issue was whether the defendant was liable to pay the debts of the company.
In this case, the respondent did not go into the contract as an agent for the company. A company has no soul or body through which it can act, it can only do so through human agents; but which acts they cannot be personally held liable for. The court said that the effect of incorporation and registration of a company, firm etc is to confer on it legal entity as a person separate and distinct from its members. It is a legal person with a personality of its own.
The court went on to state that the appellant failed to show that the findings of the lower court were perverse and not based on the evidence adduced. This is why the appeal failed.
The appellant challenged the jurisdiction of the court to entertain the petition of the respondent to wind up the appellant company for being unable to pay its debts.
The court held that jurisdiction is a threshold issue and where there is a condition precedent to the exercise of jurisdiction, and then unless fulfilled, the court shall be devoid of the requisite jurisdiction to determine the matter. The dispute, if any must be within the parameters of disputing a debt; that is in good faith and on substantial grounds. The court stated that the appellant was supposed to put forward facts which would satisfy the court that there was something which was ought to have been looked into on the same matter.
Disputation of a debt can bar the court from allowing a petition for winding up a company which has failed to pay its debt. A real dispute must touch on the substance of the debt in its material particulars such as showing part of the debt had been settled. The court held that the appellant failed to make any payments to the respondent. Furthermore, the respondent satisfied the requirements of the act and the jurisdiction of the court was properly activated and the issue is resolved against the appellant.
The appeal was dismissed as it lacked substance.
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.
The issue was whether the trial court had jurisdiction to hear a petition for winding up and whether the respondent had required authorization to petition for winding up.
The appeal emanated from the dismissal of the appellant’s objection to a petition for winding up the appellant company. The appellant argued that the trial court had no jurisdiction to decide on the matter. It pointed out that only the English courts had exclusive jurisdiction to decide on any dispute between the parties. Moreover, the appellant challenged the legal personality of the respondent arguing that they did not provide original certificates of incorporation and that the respondent did not receive authority of shareholders to petition for the winding up.
The respondent opposed the appeal on the grounds that the English courts had exclusive jurisdiction only on disputes and not on a petition for winding up. It further argued that it required a trail to verify the authenticity of the certificate of incorporation. Lastly the respondent pointed out that since they were duly incorporated, they were authorized to work on behalf of the shareholders.
The court in dismissed the first two points raised by appellant. The court held that the English court’s exclusive jurisdiction did not extend to petitions and that documents attached to an affidavit in an interlocutory application should not be used as an objection to the issue of admissibility. However the court ruled that the respondent required the approval of directors and shareholders to file a petition to wind up. Thus the appeal was upheld.
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 appeal emanated from the advance of a loan by the first respondent to the appellant. The appellant deposited with appellant bank a certificate of occupation and a share certificate as security. The appellant then failed to repay the loan resulting in the sale of the appellant’s shares deposited as security. The appellant instituted legal proceedings against the respondent claiming that it was not indebted to the first respondent for any amount because the arrangement between the parties was a joint venture agreement and that the sale of the second appellants shares was done mala fide and without their consent.
The challenge was dismissed. The appellant appealed against the dismissal arguing that the trial court erred. It pointed out that the deed of mortgage was not properly executed and that the contract between the parties was invalid.
The respondent argued that the appellant was raising new issues not canvassed in the court below. It argued that there was a valid contract between the parties.
The court held that there was a loan agreement between the parties and the appellants did not complain of anomalies in the contract hence it waived any right it may have had. The court ruled that a party cannot raise new issues in an appeal and dismissed the appeal.
Trials – onus of proof in civil proceedings – plaintiff to adduce satisfactory evidence in support of their case
The appellant brought his initial suit against a decision of the main committee of the first respondent suspending him from the Lagos Polo Club. The initial suit was dismissed in its entirety.
The appeal concerned three issues. Issues one and two were decided together, and concerned whether the lower court was correct in holding that the respondents complied with the provisions of the Lagos Polo Club Constitution in suspending the appellant; and whether the main committee of the Club could delegate any part of its disciplinary functions to its Disciplinary Sub-Committee.
Generally, courts will rarely interfere with the decisions of voluntary associations except where rules of natural justice were ignored. At issue was whether the appellant was given a fair hearing, which the court held that he was. The main committee was empowered to discipline its members for misconduct. Furthermore, the main committee was empowered to co-opt other persons to act under its authority. The power to constitute a sub-committee was incidental to the power to co-opt persons. Issues one and two were resolved against the appellant.
Issue three concerned whether the lower court considered all the processes filed by the appellant when arriving at its decision. In determining issues, a court is not bound to list all the material considered. Failure to expressly mention all the different processes does not mean the trial court failed to consider them. The court found against the appellant on this issue.
The appeal was dismissed.
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.