Commercial Law Index

The case concerned the jurisdictional issue that was raised and whether the lower court had the jurisdiction to adjudicate upon the matter. Furthermore, the court considered whether a party was entitled to raise a new issue on appeal which hadn’t been previously canvassed. It was found that where a party seeks to raise a fresh issue on appeal, he must seek leave of the court. It was stated that it can never be too late to raise the issue of jurisdiction due to its fundamental and intrinsic nature and effect in judicial administration. The issue of jurisdiction is the court’s authority to hear the suit. If a court lacks the jurisdiction to hear the suit and proceeds to entertain it, the proceedings and judgment amount to a nullity. It was found that none of the below courts had jurisdiction to hear the suit and as a result the appeal court could not exercise its jurisdiction.  Appeal dismissed.
 

The main issue faced by the court in this matter was whether an appeal could be allowed to proceed when the notice of appeal is incompetent. 

On the assertion that the notice was defective for failure to reflect names and addresses of the parties, the court was quick to dismiss the objection as baseless as the error was a mere irregularity which could not affect the hearing of the appeal on merits. It reasoned that a liberal interpretation must be followed thus non-compliance per se could not be a ground for nullifying a proceeding unless it could amount to a denial of justice. Since the requirement of endorsement of names and addresses was a measure of convenience and not mandatory, it could not render the notice invalid. 

On the contention that the notice did not relate to any suit, the court acknowledged the presence of incongruities between record of appeal and the notice to an extent that there was no nexus between the two. Further, it observed the incompleteness of the record, defects which amounted to a failure in invoking the court’s jurisdiction. The court decried the applicant’s failure to remedy the above defects by way of motion on notice to the lower court, a defect it held to be fundamental and stems to the very root of the appeal process. The court thus held the appeal was effectively incompetent and therefore there was no jurisdiction to hear the appeal. 
 

The subject-matter of this appeal concerned the enforceability of an English court order on the parties’ dispute. The first and second respondents argued in the court below that the appellant and third respondent were in breach of the order of a lower court, and so they sought an order restraining its enforcement. The trial judge admitted a copy of the English court’s ruling but made further other orders affirming the subsistence of the lower court ruling which led the appellant to lodge an appeal on multiple grounds.

Regarding the main appeal, the court endorsed the first and second respondents’ argument that the third respondent ought to be compelled to observe the subsisting order of the lower court. It affirmed the inherent power of the court to act where an existing court judgment is flouted to uphold the integrity of the judiciary. Such an issue may be raised by either party orally, by formal application, or raised by the court itself. 

Although the appellant was not part of the suit and lacked the requisite legal standing without formal application, that it was a beneficiary of the English court’s order meant that the trial judge was justified to restrain it from enforcing the order. However, the appellant had been incorrectly found to be jointly liable with the third respondent for flouting the judgment of the court below, so it experienced some success on this count.

On the challenge of the trial court’s jurisdiction to make one of its pronouncements, the appellate court found that the judge had unlawfully addressed the substance of a forthcoming application. This violated the well-established principle that a court must make its findings and orders on the same grounds of argument it has received from the parties. This issue was therefore resolved in the appellant’s favour.

Overall, the appeal was meritorious and allowed in part.
 

The court considered whether money accruing to the state can be subject to a garnishee order and whether the trial court had jurisdiction to entertain the proceedings. 

This case concerned an appeal of a garnishee order on the basis that the court below erred in adjudicating upon the matter as a it did not have the requisite jurisdiction. 

On the first issue, the court found that money had accrued to the state and thus they were entitled to the garnishee order.

On the second issue, the court the court found that jurisdiction is not exercised at large but must be exercised within the confines of the law. In effect, a court can only be clothed with jurisdiction if and only if it was competently constituted in the proceedings before it. 

The factors which determine jurisdiction of a court are 1) the subject matter of the case is within its jurisdiction; 2) there is no feature of the case which prevents the court from exercising jurisdiction and 3) the case comes before the court initiated by due process of law. 

Therefore, the court found that the trial court had acted within the confines of their jurisdiction. 

Appeal dismissed.
 

The appellant and respondent of this case entered into an agreement of service relating to aviation. The respondent as plaintiff before the lower court alleged that the appellant has not paid the amount determined in the contract in full. The trial court ruled in favour of the respondent (as plaintiff).

The court considered whether the trial court had jurisdiction over the matter under s 251 of the Constitution. The court held that the court has jurisdiction over matters relating to aviation. Both parties were engaged in the business of aviation and their dispute arose out of this activity. Consequently, the lower court had jurisdiction.

The court further considered whether the trial court had jurisdiction although the writ of summons did not contain the respondent’s address. Further, the court considered whether the trial court had jurisdiction despite the presence of an arbitration clause in the contract. The court held that the right to complain about irregularities is waived if it is not exercised in due course. It found that the appellant failed to object before the lower court and, therefore, waived the right.

The court was also asked to determine whether the lower court adequately evaluated the evidence presented before it. The court held that the party that files a counter-claim must proof that claim. It found that the appellant in this case did not provide evidence for the claim. Consequently, the court concluded that the lower court adequately evaluated the evidence.

All grounds for appeal were dismissed.
 

The issue was whether the state high court has jurisdiction over matters that are governed by the Investment and Security Act (the act). The case emanated from a dispute where the appellant was being sued in the court aqua for defrauding the respondents of units of shares. The appellant had raised a preliminary objection that the trial court lacked jurisdiction over the matter which was dismissed. The appellant thus was challenging the dismissal of the objection.

The appellant argued that the trial judge erred in dismissing its objection on the basis that jurisdiction of the high court is limited and excludes matters that are regulated by the act. The appellant pointed out that disputes around the act should be determined by the Investment and Security Tribunal (the tribunal).

The respondent opposed the appeal on the grounds that the trial judge was correct because the jurisdiction of the high court was unlimited. They argued that the dispute emanates from torts, conspiracy and fraud which fall within jurisdiction of the high court and that the act was unconstitutional. 

The court ruled that s 270 of the act establishes the tribunal to resolve disputes that fall under the act. It observed that s 284 of the act give the tribunal exclusive jurisdiction to determine matters regarding capital markets. It held that the dispute revolved around capital market operator (appellant) and its clients (respondents) hence it falls within the exclusive jurisdiction of the tribunal. It concluded that the trial judge erred and the appeal was upheld.

This was an appeal against a garnishee order granted by the court. The appellant contended that the garnishee proceedings were null and void because the first respondent did not disclose that the second respondent fell within the jurisdiction of the lower court. Further, the appellant argued that there was abuse of court process because the garnishee order was made after the appellant was granted leave to appeal.

The respondent argued that the appellant was not a party to the garnishee proceeding and cannot challenge the procedure.

In deciding the matter, the court held that the question of the judgement creditor establishing that the garnishee was within jurisdiction was not for the judgement debtor to determine but the court. It found that the appellants were not parties to the garnishee proceedings and that an appeal does not operate as a stay of execution. The appeal was thus dismissed.
 

The court considered whether the failure to omit the court name in a notice of motion and error in arrangement of parties invalidated the application.

The court held that a notice of appeal is the foundation and any defect to it renders the whole appeal incompetent. In that regard, to validly invoke the jurisdiction of a Court of Appeal, it must be shown that the decision appealed against arose from the courts listed in s 240 of the Constitution.

The court found that the particulars of the claim did not invoke the jurisdiction of the court of appeal which is a material defect. Moreso, cannot be cured by an amendment. Therefore, the court was not able to grant the reliefs claimed.

The court accordingly dismissed the application.
 

The appellants appealed a judgment granting the respondent payment of a sum of money in terms of an indemnity agreement between the parties.

There were four issues for determination in the main appeal: whether the lower court had jurisdiction to hear the matter; whether the personal indemnity form did not constitute a contract between second appellant and first respondent to make second appellant personally liable to indemnify first respondent; whether the deposit of the second appellant’s title deeds with the first respondent was in furtherance of the personal indemnity form; and whether the judgment was against the weight of evidence.

As regards the first ground of appeal, the court found that the lower court was vested with the jurisdiction to hear the matter, as stated in the Insurance Act, 2003. The second ground was resolved in favour of the first respondent as the indemnity form was held to be a contract with the main aim of making the second appellant personally liable to indemnify the first respondent. Issue 3 was found in favour of the first respondent as the words of the document were found to have created an equitable mortgage over the second appellant’s property, using it as collateral to secure the counter indemnity granted by the first respondent on behalf of the second appellant. The fourth issue was resolved in favour of the first respondent, and the appeal was held to be lacking in substance and merit. The appeal was dismissed.

In this appeal, the court considered whether the Court of Appeal had erred in upholding the respondent’s writ as per established rules. The court observed that the validity of the writ affected the jurisdiction of the trial court. The court held that the writ was competent since the court had to decide who had a better title to the property.

The court also considered whether there were legitimate grounds for the Court of Appeal to reverse the decision of the trial court on the disputed questions of fact. The court held that the Court of Appeal was right to intervene in order to make a judicial correction, based on the record of appeal, since the conduct of the 1st appellant was fraudulent. Accordingly, the appeal was dismissed, the decision of the Court of Appeal affirmed and the respondent’s right to injunctive reliefs succeeded.

One of the judges expounded on the whether the Court of Appeal exceeded its jurisdiction by questioning an order of a public tribunal. The judge noted that the writ was made by appointees of the tribunal not the tribunal and could be questioned by the court.

This case concerned whether the Supreme Court had the authority to quash a judgment handed down by the court below. The applicant contended that the court below lacked jurisdiction to interpret articles 127 (3) and 161 of the 1992 Constitution. The court considered the difference between interpreting a constitutional provision and applying a constitutional provision. It was found that all courts and adjudicating authorities are obliged to apply the provisions of the Constitution. Therefore, it would be a denial of justice to parties if constitutional provisions are not considered by a court of law or any adjudicating authority. Furthermore, it is only when the issue of interpretation arises that a court must stay its proceedings and refer the matter to the Supreme Court. In this matter, the court below was not called upon to interpret any provisions of the Constitution but merely to ascertain where the Registrar was a holder of a judicial office and whether the holder of a judicial officer had judicial power. The court found that Article 161 of the Constitution did not define judicial power. Therefore, not all judicial officers exercise judicial power. The court found that the court below had not committed and error that destroyed its jurisdiction, thus there was nothing warranting the Supreme Court to be called upon to quash the judgment handed down by the court below. Application dismissed.

The Financial Intelligence Centre applied to the High Court to freeze the assets of the applicants who were being investigated for trafficking narcotic drugs. The applicant contended that the High Court exceeded its jurisdiction when it dismissed an application to dismiss the freezing of assets, because the law provided that this must be done for one year only; however in this case a year had since lapsed. It was also contended that the High Court had exceeded its jurisdiction to impose directions on how the case should be tried, and more broadly that the freezing of the account was in breach of the rules of natural justice.

The court held that the High Court acted contrary to the law when it did not exercise its jurisdiction to defreeze the assets, as the courts have supervisory jurisdiction. A year had lapsed and hence it was an error of law to not grant the order to defreeze the assets. The court which has supervisory jurisdiction has the power to defreeze assets if the one-year period has lapsed.

The matter involved a dispute concerning the nature and validity of the transaction between the defendant, a government-owned limited liability company, and Karpower. The matter revolved around the interpretation given to the phrase ‘international transaction’ in article 181 of the Constitution, a phrase whose effect is that the transaction required parliamentary approval.   

The first question that faced the court concerned jurisdiction. The court relied on ample case law to arrive at the position that the Supreme Court is not a clearing house to assume jurisdiction which otherwise belongs to other lower courts. It noted that jurisdiction would only be exercised where it is manifestly clear and obvious that the cases are deserving.

Substantively, the court then had to consider the legal nature of the defendants in order to ascertain whether they were the alter ego of the government. After scrutinising the relevant transactions, the court reasoned that it was clear that the defendants, as juristic persons, had the capacity to enter into the transactions they entered into with the relevant institutions without seeking parliamentary approval as stipulated in article 181 (5) of the Constitution.

The court concluded that given the established interpretation of ‘international transaction’ and the legal nature of the defendants, the nature of transaction between the first defendants and Karpowership does not constitute an international business transaction with a government. It therefore did not require compliance with article 181 (5) of the Constitution.

The court dismissed the application.

In this appeal, the court determined the principles applicable to appeals against concurrent findings.  The court noted that the second appellate court ought to be slow in reversing such findings but may do so if they are not supported by evidence, based on a wrong proposition of law, inconsistent with undisputed evidence and unjustified.

Firstly, the court determined whether the appellant had proved the amount of rent on a balance of probabilities. They applied the rule that for a statement to be admitted as an admission by the opponent, it has to leave no doubt as to such admission and held that the standard was not met by the appellant. Thus, the court conceded with the decision in the prior court that the appellant did not lead evidence in support of his claim of outstanding rent. However, the court found that the appellant proved that he was entitled to an amount that was not pleaded. The court applied rule 7(1) of the Civil Procedure Rules and amended the pleadings to include the amount. Therefore, the court entered judgment for appellant against the second defendant in this respect plus interest.

Secondly, the court distinguished between the application of estoppel as a rule of evidence (to bar a party from denying an intentional representation) and as a rule of substantive law (to rectify an unwritten contract with valuable consideration from promise). Drawing from the above definitions, the court conceded with the court of appeal decision on estoppel.

Accordingly, the appeal was dismissed partly.