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 case was an application seeking to revive a consent judgment set aside by the registrar of the court.
The dispute emanated from an application by the respondent seeking an order to nullify registration of property in the name of the defendants (who are now applicants). The order was granted under an ex parte application because the respondents failed to respond to the suit. The respondents tried without success to appeal the judgment.
The respondents then filed a notice of appeal to the Appeal Court seeking to appeal against the order of the High Court dismissing the application. They also requested an interim order for stay of execution. The applicant (who is now the respondent) objected to the appeal arguing that it was late which was confirmed by the registrar. The respondents referred the matter to a single judge and pending the determination by the judge, the parties entered into a consent judgment which was endorsed by the registrar. The registrar later set aside the consent judgment which the applicants are now seeking to revive.
In deciding the case, the court held that there was no appeal before the single judge because the applicants filed the appeal late. The court ruled that the registrar has no jurisdiction to hear and dispose an appeal. It found that the registrar erred when he entered a consent judgment on a matter which was on appeal before a court. It further ruled that the consent judgment was null and void thus it cannot be revived.
The matter involved an application for the setting aside of an order for default judgment and the order of execution of the default decree. It also involved an application for unconditional leave to defend the underlying suit that gave rise to the default judgment.
Substantively, the first issue was whether the applicant had been aware of the summons to defend the suit for the amount claimed. It was established that there was a serious flaw in the service by respondents particularly in the absence of a return of service summons. There was therefore no evidence of summons or a court order being served to the applicant on the court record and the application for leave to defend outside the stipulated timeframe could not be said to be in breach of a court order. Further, it was also held that the absence of effective summons justified the setting aside of the default decree.
Secondly, there was a question of the legality of the suit brought against the appellant for default as it was argued that the basis was an illegal instrument. As there was an argument that the cheque and acknowledgement the suit was based on were forged, the court reasoned that there was no difference between the signature on the cheque and on the acknowledgment. However, as there was no forensic evidence supporting this, the court offered the applicant conditional leave to defend the underlying suit against him. The court therefore concluded under a conditional pretext of the suit’s illegality and thus allowed the application for conditional leave to defend.
The court considered an appeal from a High Court decision that dismissed an application to set aside part of a previous judgment. The broad circumstances related to a series of judgments that related to who was entitled to vacant possession of land. However, the time within which to lodge the appeal had lapsed. The court restated the position on what the court must consider when dealing with an application for the extension of time. Such an enquiry is three-pronged involving three questions namely: (1) establishing sufficient reasons for the court to extend the time to lodge the appeal; (2) whether the applicant is guilty or not of dilatory conduct; and (3) whether any injustice will result from the application not being granted.
The court held that because the matter in this case raised serious questions of law that need to be addressed, it would be in the interests of justice to extend the time to file their appeal.
The court also dealt with affidavits as evidence and provided that just because they were not duly endorsed, does not mean the court will reject them. Further, where it is alleged that part of an affidavit is false, a court can sever that part and rely on remaining paragraphs.
The applicant and respondent contested in a parliamentary election, the
respondent was aggrieved by the outcome of the election petitioned court
which dismissed the petition hence the appeal from which the application
arises. The applicant sought the notice of appeal struck out of court for being
filed out of time without leave of court.
In this case the appellant sought an order of Supreme Court extending the time within which to serve a notice of appeal. Counsel for the applicant lodged a notice of appeal well within the time prescribed by the law but the respondent’s counsel was served three days out of time. The applicant apportioned the blame for this delay on the staff of the Court of Appeal which, according to the applicant, failed to make available a signed notice of appeal on time.
The court considered the application for extension of the prescribed time in light of Rule 5 of the Rules of the Supreme Court. According to this rule, the court may grant such an extension if it finds sufficient reason to do so. The court found that the fact that the applicant promptly filed the notice of appeal demonstrated zeal on the applicant’s part. However, counsel for the applicant failed to demonstrate that the court staff caused the delay and did not explain why it took nearly four months to file the application for extension before the Supreme Court. Nevertheless, the court found that refusing the application would amount to denying the applicant’s right to present and prosecute his appeal and would have disproportionately negative consequences on the applicant. The court, therefore, used its discretionary powers to grant the extension sought, thereby validating the notice of appeal and the appeal itself.
The issue before the court was an application for extension of time to file an appeal.
The applicant was seeking condonation from the court after he failed to file an appeal within the time prescribed by court rules. He based his appeal on the grounds that he was not aware of the judgment and blamed his lawyer for not informing him of the judgment. He argued that it was just and equitable for the court to extend the time to file the appeal and that there was likelihood of success.
The respondent on the other hand opposed the application arguing that the applicant failed to produce evidence to support its application.
In deciding the case, the court held that court rules empower the court to extend time limits if there are sufficient reasons. It ruled that negligence on the part of the applicant’s counsel amounts to sufficient reason for extension of time limits. The court found that refusal to extend the time limits will cause injustice to the applicant.
The application for extension of time was granted.
The appellant applied to the supreme court seeking an enlargement time within which he should have filed his notice of appeal against the decision of the court of appeal.
The issues were whether leave to appeal could be granted to the applicant and serve the notice of appeal out of time and whether the applicant had ‘sufficient cause’ for not having been able to bring the appeal within time.
The court noted that it had the discretion to extend and validate pleadings even where there were limits created by statute. The court held that ‘sufficient reason’ must relate to the ability or failure to take particular step in time. It observed that the rule envisaged scenarios in which extension of time for doing an act so authorised or required would be granted namely: before the expiration of a limited time, after the expiration of a limited time, before an act is done and after an act is done.
The court also noted that the appellant was not to be prejudiced since the machinery which formed the core subject of the dispute between the two parties was still in possession. In the result, the court was satisfied that the appellant had established sufficient reasons for having failed to apply on time.
The appeal succeeded.
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 for extension of time of appeal against a lower court decision granted against the applicant.
The main issue was whether the applicant had shown cause to justify the granting of the extension. The court noted that the length of the duration of the delay in bringing an application for extension is immaterial provided there are good reasons to justify it. In its engagement with the law, the court emphasised the role of judicial discretion in assessing the efficacy of granting the extension. It stated that for this discretion to be exercised the applicant had to show good and substantial reasons for failure to initially make the appeal. These could be a rule, lack of means, mistake or accident. The other inseparable twin leg was for the applicant to show prima facie good cause why the appeal should be heard.
In assessing whether the contemplation of an out of court settlement as reason for delay was a substantial enough reason, the court cited the Supreme Court judgment of Ikenta Best Ltd v AG Rivers State (2008) 2 SCNJ 152 to establish that the reason would not meet muster. The court thus concluded that the application did not meet the first condition for granting an extension and therefore dismissed the application for lacking merit.
The matter involves an application for an extension of the period of appeal by applicant against a lower court decision.
The main issue was whether the applicant, after consideration of the interests of justice and fair hearing, is entitled to an extension of the period of appeal. Starting from the point that the execution of a judgment does not foreclose the aggrieved party’s right of appeal, the court stated that the applicant must show good and substantial reasons for the delay in appeal, which can be rooted in a rule, lack of means, mistake or accident and, prima facie good cause why the application should be heard. Whilst the first leg requires a satisfactory justification, the second leg only requires one to show that the grounds of appeal are arguable. It is upon satisfaction of both the above that the court will use its discretion to grant the application.
As the applicant’s sole reason was that the delay stemmed from a desire to explore an out of court settlement option, the court followed the Supreme Court decision in Ikenta Best (Nig.) Ltd v AG Rivers State (2008) 2 SCNJ 152 to arrive at the position that the applicant’s reason could not be regarded as a good and substantial reason for delay in filing an appeal. The court thus held the applicant had failed to justify why the extension should be granted and therefore dismissed the application.
The court dealt with an application for an extension of time to appeal. The court reiterated the test that must be satisfied for an application for extension of time. The applicant must file an affidavit showing good and substantial reasons for the failure to appeal within time; and propose grounds of appeal that good cause why the appeal should be heard. The court held that the applicant had shown both good and substantial reasons as to why he failed to file appeal with the correct framework and proposed adequate grounds for appeal.
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 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.