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.
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 plaintiff supplier sued the defendant – its Local Technical Representative (LTR) in accordance with the National Drug Authority Act for the distribution of pharmaceutical products – for breach of contract. The defendant failed to pay the plaintiff for the assorted products it supplied. The plaintiff consequently claimed for loss of income, damages, interest and costs of suit. The defendant lodged a counter-claim alleging that the plaintiff/first counter-defendant had breached the memorandum of understanding concluded between the parties and had, through various means, attempted to cripple the defendant’s/counter-claimant’s enterprise. It alleged further, as the basis of its challenge to the legality of the arrangement between the first and second counter-defendants, that the just-mentioned parties had colluded in this endeavour so as allow the latter to become the new LTR.
The defendants/counter-claimants successfully raised the procedural bar of res judicata – which prohibits judicially-decided matters from being heard afresh a second time – concerning the plaintiff’s claim, given that the matter of their indebtedness thereto had been resolved in the settlement of antecedent winding-up proceedings. To what extent ought the defendant’s/counter-claimant’s challenge have been raised as part of the previous lawsuit? Suggesting that res judicata was applicable to both parties’ claims, the court nevertheless considered the counter-claimant’s’ case in respect of the first and second counter-defendants and found no measure of illegality or bad faith on the evidence. The counter-claimant was additionally time-barred from seeking review of the National Drug Authority’s decision over the LTR change.
The plaintiff’s suit and defendants’ counter-claims were accordingly dismissed with costs.
In 2009, the appellants brought an action
before the High Court on behalf of former
employees of National Sugar Works Ltd,
alleging unlawful termination of their services.
The respondents raised a preliminary objection
claiming that the suit was time barred. This
claim was dismissed by the High Court but
accepted in second instance by the Court of
Appeal. Being dissatisfied with the decision of
the Court of Appeal, the appellants filed a
further appeal before the Supreme Court. The
appellants argued that their suit against the
respondents was not time barred because they
were under disability due to war and rebel
The appellant sought a declaration that it was the lawful owner of a piece of land in dispute, and that the respondent has been a trespasser. The respondent filed seeking to strike out the appellant’s suit for being time-barred. The trial judge allowed the application. The appellant appealed to the Court of Appeal against the dismissal. The Court of Appeal found no merit in the appeal and dismissed the same, hence this appeal.
The issue for determination for the appeal was whether the appellant could appeal to the Court of Appeal against the order of the trial court without the leave of court.
The court applied the principle that if the decision conclusively determines the rights of the parties, then it would be a decree; otherwise it would be an order. If for instance portions of a plaint are struck out as being frivolous, or if a suit is stayed, such a decision would be an order, whereas if a suit is dismissed with costs, that would be a decree. A decree is appealable as of right, whereas under the Civil Procedure Rules most orders are only appealable with leave of the court.
In applying the principle, the court found that the High Court decision disposed of the suit conclusively and the decision was therefore a decree within the meaning of s 2(c) of the Civil Procedure Act, even though it was worded as an order. It held that the appellant therefore had a right of appeal as against the decision and did not need to apply for leave to appeal to the court of appeal.
The appeal succeeded.
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.
Aggrieved by the High Court order concerning its dispute with the respondent, the applicant sought revision thereof from the Court of Appeal. The application was made outside of the 60 day window prescribed by rule 65 the Court of Appeal Rules.
This defect was objected to by the respondent and promptly conceded by the applicant who acknowledged its fatal nature. The main question before the court was to conclude the matter by dismissal or striking out.
Surveying the authoritative case law, the court concluded that the proper position is to dismiss only competent applications; those which suffer from material defects are to be struck out. A time-bar constitutes one such flaw, and so the matter was consequently struck out.
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.