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 appellant sought to raise a fresh issue not canvassed in the court below. This case illustrates the court’s willingness to grant leave to raise and argue a fresh issue to ensure that justice prevails.
The court considered whether the applicants should be granted leave to raise and argue fresh issues on law in their appeal. In analyzing the principles for granting leave to raise fresh issues on appeal, the court held that one major consideration is if further evidence is required. The court held that it was satisfied that the fresh issue would be erected on the existing evidence in the printed record.
The court also held that the fresh issues must constitute a substantial point of law which will materially determine the fortunes of the appeal. The court found that the application for leave to raise and argue a fresh issue of law had satisfied all the established principles or templates for the grant of leave.
The court gave the appellant 30 days to file their brief of argument in this appeal. The court upheld the appeal.
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 applicant looked to introduce an additional appeal ground to the memorandum of appeal it had filed challenging a High Court ruling against it.
The respondents raised a preliminary objection that the applicant was time-barred from making such an application. The parties were at odds regarding the application of the ‘sixty days rule’ – a judicially-reared rule which applies to applications where the law provides no specific timescale. The procedural dispute concerned when the sixty-day period began running – the point at which the Memorandum of Appeal was filed, or when written submissions in support of the appeal were filed.
The court found, however, that like applications for extensions of time, the ‘sixty days rule’ does not apply to applications to amend memorandum of appeal, which may be done via application at any stage of the proceedings until judgment is given, pursuant to Rule 111 of the Tanzania Court of Appeal Rules. The court qualified that, although this right is available to appellants at any time, it is still subject to preliminary objections which may be raised against the shortcoming intended to be remedied by the amendment.
Having overruled the preliminary objection, the court moved to the merits of the substantive application. It noted that the parties had primarily addressed the merits and demerits of the ground to be added rather than the merits of the application itself. The court referred to authorities stating that applications of this kind ought to be freely permitted if adverse parties are not prejudiced. The court deemed the ground to be admitted one that was crucial to the determination of the appeal and one that would indeed bear no prejudice to the respondents if adduced.
The application to amend the memorandum of appeal was granted.