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 claimed that he was a partner in a business with the respondent. When the partnership dissolved and the proceeds were shared; the appellant was allegedly not given anything. He then sued the respondent for a declaration that he was a partner and was entitled to the proceeds. The High Court dismissed these claims.
The appellant appealed the judgment of the High Court five months after the judgment had been handed down. He further lodged an application for extension of time to file a notice of appeal. The court below dismissed this application because of inordinate delay.
The appellant appealed to this court. The appellant’s complaint was that the application was dismissed on the basis of technicalities and not substantive justice and this is in contravention of the Constitution. In response, the respondent submitted that the appeal lacks merit.
This court found that the continuation of the proceedings in question would greatly prejudice the respondent. This is because the respondent was holding a decree from the High Court since 1995 which decree the appellant has stubbornly refused to satisfy to date. Accordingly, this application was dismissed.
The appellant appealed against a taxing officer’s order awarding the second respondent costs of 1, 900, 739/= contending that the instruction fee awarded was based on an incorrect value of the suit. The respondents’ counsel raised preliminary objections inter alia that couldn’t be permitted to raise a new point of law that was not argued in the lower court.
The matter involved an application to extend the time period of filing an appeal against an alleged illegal decision of the High Court.
The court began by reiterating that the decision to grant an application for extension is a discretionary power. This discretionary power, however, is judicial in nature and must be confined to the rules of reason and justice. It is also required all relevant factors are considered.
Applying the above to assess the applicant’s reason that the delay stemmed from ignorance of procedure, the court regarded the reasons as insufficient. This was predicated on the case law position that ignorance of law was not a good cause for an extension.
The court also considered the question of the legality of the impugned decision as a possible reason for an extension. It relied on the decision of Lyamuya Construction Company Ltd v Board of Registered Trustees of Young Women's Christian Association of Tanzania Civil Application No. 2 of 2010 which stated that a point of law must be of sufficient importance and apparent on the face of the record to compel the court to allow for an extension. The court thus reasoned that the alleged illegality was not apparent on the face of the decision. Hence, it concluded that since it would require a long-drawn process to decipher the illegalities, illegality was not a sufficient cause for granting an extension.
In view of Rule 10 of the Tanzania Court of Appeal Rules, the applicant had to display good cause for a two-year delay in seeking to file an application for leave to appeal. Counsel for the respondents contended that two years was an unacceptably long deferment and that the applicant ought to have applied directly to the appellate court for leave within two weeks after the High Court rejected the application for leave to appeal. It was submitted that the applicant was required to account for each day of the delay-period, which he had not done.
The court, on the other hand, found that the many applications with which the applicant had been busy during the two-year period – albeit fruitless – offered some explanation for the delay. It found that as the respondent was still in possession of the property which formed the subject-matter of the dispute, no prejudice would be caused to it by permitting an application for leave to appeal. Moreover, the grounds that the applicant intended to raise – illegality and fraud – were of such import that they ought to be given an opportunity for airing before the court.
The application was granted.
The appellant appealed the decision of the trial court to rely on an affidavit of a court process server, having held that service was properly done. The prime issue for determination was whether the appeal was meritorious.
Order V Rule 16 of the Civil Procedure Code provides that where the serving officer delivers or tenders a copy of summons to the defendant personally or to an agent or other person on his behalf he shall require that person to sign an acknowledgement of service, if refuses to sign the acknowledgement the serving officer shall leave a copy thereof with him and return the original together with an affidavit stating that the person refused to sign the acknowledgement) that he left a copy of the summons with such person and the name and address of the person (if any), by whom the person on whom the summons was served was identified.
The court held that these specifications were not indicated in the process server's affidavit and the trial court never bothered to establish and ascertain if the service was properly done to the appellant to accord her the right to be heard.
The decision of the trial court giving rise to this appeal could not be allowed to stand on account of being arrived at in violation of the constitutional right to be heard. In the result the appeal was granted.
The applicant filed an application for correction of arithmetical error from a consent settlement order. The respondent argued that a party seeking to have an arithmetical or clerical error corrected as it were in this application must do so within sixty days from the date of the decree sought to be corrected.
The question for determination by the court in this application was whether that power could be exercised at any time. To answer the question the court relied on the court of appeal judgment where it was held that "we are satisfied that the phrase 'at any time means just that at anytime' subject to the rights of the parties, there should be no point in limiting the time in which to correct such innocuous mistakes or errors which are merely clerical or arithmetical with absolutely no effect on the substance of the judgment. Hence if what was sought in Misc. Civil Application No. 57 of 1993 was merely to correct clerical or arithmetical mistakes arising from an accidental slip or omission; we agree that such correction can be made at any time subject to the rights of the parties”.
The court then concluded that the phrase ‘at any time’ was not be construed to extend beyond the period after a decree is fully satisfied.
The application was therefore dismissed.
The issues for determination were whether this suit was time barred and whether the suit was bad in law for being in contravention of s 6 (2) of the Government Proceedings Act [Cap.5 R.E. 2002].
Section 6(2) of the Government Proceedings Act states that ‘no suit against the government shall be instituted, and heard unless the claimant previously submits to the government minister, department or officer concerned a notice of not less than ninety days of his intention to sue the government, specifying the basis of his claim against the government, and he shall send a copy of his claim to the Attorney-General.’
The court held that in determining the question of limitation, two principles must be considered. In the first place, the court must look at the whole suit, including the reliefs sought, and see if the suit combines more than one claim based on different causes of action as one of them may be found to be time barred while the others may not. In such circumstances, it is not proper to dismiss the whole suit as time barred. Second, the court, in interpreting the provisions of a law, should read those provisions in their context as a whole. Single sections should not be read or interpreted in isolation.
The court found that the suit against the government, having been prematurely instituted before complying with the mandatory provisions of section 6 (2) of the Government Proceedings Act, was bad in law and incompetent. The suit was dismissed.
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.
After the failure of mediation between the parties to a dispute, the matter proceeded to litigation. At a certain point, witness statements were to be filed to be filed. The applicant was meant to submit four witness statements but only filed one of them. The applicant thereafter requested an extension of time, citing difficulty obtaining the relevant name from the Ministry of Lands. The court held that the court has the discretion to grant or deny an extension of time, but that the applicant must have a sufficient reason for requesting the extension. The court granted the application because it was clear that the witness statements could not be obtained and filed with the permitted timeframe due to the delay in receiving the names.
The applicants applied for an extension of time to give a notice of intention to appeal a judgment handed down in 2012. The applicants had previously applied for an extension in 2015, but this was struck out, giving rise to the following application.
The applicants contended that the previous application was not heard on merit, and as a result the court had jurisdiction to hear the matter.
The court found that the plain language of s 11 of the Appellate Jurisdiction Act confers a discretion on the court to grant an extension of time. The discretion must be judiciously exercised after taking into account the circumstances of the case, whether the applicant acted prudently and without delay. On perusing the court record, the court found that the applicants filed a notice of appeal within 30 days of the 2012 decision, but the appeal was struck out in December 2014. The time for filing another proper notice had expired. The court found that the applicants were concerned with their appeal in 2012 until it was struck out in 2014. The fact that the requisite time within which to issue a notice of appeal had expired while they were pursuing their appeal was reasonable and sufficient cause to grant an extension of time for giving notice of an appeal.
The application for extension of time was granted, and notice was to be filed within 14 days of the date of the ruling.