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 first appellant and the respondent are siblings whom were initially registered as tenants in common, on a land plot. In 2002, the proprietorship of this land was transferred from the names of the siblings to the 2nd to 8th appellants (who were at the time minor children of the first appellant).
The respondent was aggrieved by the transfer and registration of the appellant's descendants to the suit property. She contended that the first appellant had acted fraudulently in this transfer. She went to the High Court seeking reinstatement of her name on the suit title. The High Court granted the orders sought.
The appellants appeal the decision of the High Court. On the grounds that (1) the court erred in evaluating the evidence of the first appellant as a whole, nor recording of his evidence and (2) the respondent freely relinquished her interests in the property.
The respondent filed a cross appeal declaring that she is entitled to award of mesne profits and or general damages as well.
This court found that the transfer form did not amount to forgery or fraud. The appeal therefore succeeded in part. However, it was found that the respondent had not fulfilled the condition of transferring and subdividing part of lands into the names of the respondent - as they agreed.
The respondent was found to have carried out her part of the bargain and the first respondent must do his own as well.
The dispute centered on whether the decision by the Land Disputes Tribunal (the tribunal) was marred by irregularities due to the absence of proper assessor involvement.
The first question was whether it was necessary to record the opinion of the assessors even when they were in agreement with the chairman of the tribunal. The court asserted that the ‘unclear involvement of assessors in the trial renders such trial a nullity.’ It also stated that it was mandatory for the opinion of the assessors to be on record. It therefore reasoned that there was a serious irregularity in the trial as the assessors had not given their opinion.
Regarding the effect of the change of assessors during the trial the court averred that this was in contravention of section 23(3) of the act as the provision did not contemplate a complete change of all assessors in its latitude.
The above was tied by the fact that the assessors had not been present throughout the whole trial, conduct which resulted in the tribunal not being properly constituted as required by s 23(1) and (2) of the act.
The final question therefore was whether the above could be cured. The court reasoned that the omissions went to the root of the matter and resulted in a failure of justice. It thus concluded that the trial was vitiated by the irregularities and nullified the tribunal’s proceedings.
The matter involved a question of competency of appeal regarding a land dispute.
The court referred to section 47(1) of the Land Disputes Courts Act which allows a person, when aggrieved by the decision of the High Court, to appeal to the Court of Appeal provided they have been granted leave in accordance with the Appellant Jurisdiction Act.
The court reasoned that as there was no valid and surviving leave to appeal, the appeal was incompetent. It considered this failure to comply with a mandatory step in the appeal process as fatal to the appeal and therefore struck out the appeal fo incompetence