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 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 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.
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.
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.