Commercial Law Index

This appeal is based on a decision of the Court of Appeal that waived the respondent’s non-compliance with prerequisites to the issuance of a writ under Order 2 rule 4(2) of the High Court (Civil Procedure) Rules 2004.

The court determined whether the non-compliance was fatal to the proceedings. The court noted that the provisions of Order 2 rule 4(2) are obligatory, thus could not be waived as per Order 81 of the High Court (Civil Procedure) Rules 2004. The court held that non-compliance with the rule rendered the writ void. The court applied the mandatory rule that a plaintiff should disclose the identity and addresses of all persons on whose behalf it is suing, and when the rule is not complied with the writ cannot be amended after its issue. Accordingly, the court upheld the appeal and the writ of summons issued on 4 March 2010 were declared a nullity. Consequently, all proceedings and judgments of the High Court and the Court of Appeal were set aside.

The case related to a declaration of title of a piece of land that was in dispute because both parties claimed ownership.

The court highlighted an appeal seeking to overturn a lower court’s decision must show that the court’s decision was wrong in law, did not take into consideration evidence or made findings in the absence of evidence. In essence a trial court decision can be overturn if it was not based on well-founded reasoning.

Further when suing on behalf a group of people, the party must clearly indicate so and failure to do so may affect that parties’ legal right to sue. Once you have indicated in what capacity you’re instituting a claim, you cannot subsequently change this.

The court in this case upheld and allowed the appeal because the Court of Appeal permitted the appeal that was not based on evidence before it. Further it was a fatality for the defendants to endorse their counterclaim by indicting they were doing so in a representative capacity.

Litigation was commenced to recover a debt from a company incorporated in Australia that was wholly owned by a Ghanaian company. The High Court granted judgment in favour of the appellant for the amount due. The judgment was appealed because the respondent proposed a scheme of arrangement to reorganise their debts with their creditors. but the appellant subsequently the appellant filed a petition to liquidate the company as it was unable to pay off its debts. The court granted to wind up the company. However, the Court of Appeal granted a stay of execution of the winding-up before the respondent appealed the original decision of the High court to pay the amount due.

The appellant did not succeed with the appeal because they did not prove that the Court of Appeal failed to take relevant matters into consideration, considered irrelevant matters of misapplied the law.

This case considers the adducing of fresh evidence on appeal. The respondent had claimed title to a certain land. Dissatisfied by the High Court judgment; the appellants appealed to the Court of Appeal. On appeal they sought an order granting them leave to adduce new evidence. The reasons being:         
1.  that this evidence showed that the disputed land had been acquired by the government and that the respondent lacked the required locus standi to institute this case;
2.  in an action to protect acquired land, only the Attorney-General has the requisite standing to sue and the respondent can only sue if he had been granted leave to do so by the Attorney-General; and
3. that the trial court lacked jurisdiction to have heard the case.

The respondent contended that the documents now sought to be used as additional evidence are not of such a nature that would affect the jurisdiction of the court and that it was the appellants' choice then not to tender these documents.

This court agreed with the counsel for the appellants. In the judgment, the court found the documents entailing strong points which would likely affect the jurisdiction of the trial court.

Additionally, the issue of jurisdiction was found to be fundamental and could be raised at any stage of the proceedings (even for the first time in this court).

Thus, in the interest of justice. these documents could be tendered on appeal as fresh evidence.
 

The respondent/plaintiff had sued the appellant/defendant for a liquidated debt following its default in payment and successfully applied for the matter to be placed on the undefended list. There it was heard exclusively on the papers to the respondent/plaintiff’s success. Two issues emerged on appeal: whether the trial court’s judgment contradicted the evidence, and whether the appellant’s notice of intention to defend disclosed a defence on the merits of the case, thereby justifying the matter’s transfer to the general cause list.

The appellate court held in favour of the respondents on both issues, finding first that the court had been thorough in its analysis of the evidence before it, and had crafted a reasoned order reflecting this.

The judge elucidated the purpose of the undefended list as a vehicle for swift justice where a defendant has no credible case. This was one such instance; the court found that the appellant had failed to raise a triable issue warranting the matter’s transfer to the general cause list. The appellant’s allegations of fraud did not conform to the recognised rules for establishing such a claim and were found lack any substance.

The appellant unsuccessfully invoked s 36(1) of the Constitution, contending that its right to a fair hearing had been breached through its being deprived of a comprehensive trial. The court affirmed the lawful function of the undefended list, emphasising that parties are given equal opportunities to be heard via the papers. Where a defendant was unable to raise a triable issue against the plaintiff’s claim, it could not resort to arguing that audi alterem partem had been flouted.

The appeal was dismissed.
 

The court considered an application in a matter that dealt with a judgment that omitted counsel’s name. The court was asked to review and/or vary and/or annulling part of the Judgment to reflect the change. The court had the inherent power to correct a slip in its judgment. However, the slip rule can never be used by a party to seek clarity over a judgment but only correct minor errors.

Where counsel does appear and argue for the appellant, their names should not appear on the judgment. Further, only the names of counsel and not the parties are listed on the judgment. Once a court has delivered its decision on a matter, it ceases to be seized of the cases (functus officio), and it cannot re-open it for any purpose whatsoever except in appropriate and exceptional cases such as when judgment

(a) was obtained by fraud or deceit;

(b) was a nullity;

(c) was given under a mistaken belief that the parties consented to it;

(d) was given in the absence of jurisdiction;

(e) the proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication; or

(f) was rendered with fundamental irregularity.

A court can however review a judgment to give effect to its meaning, correct clerical errors or accidental slips or omissions. 
The court rejected the application to review or vary the judgment because it did not meet the criteria above but permitted the application to delete phrases that it was made in the absence of counsel and deleted reference to parties from appearances.
 

The issue determined by the courts was whether the appellant was an interested party in the suit and whether the firstand second respondent were owners of the property in dispute.

The dispute emanated from the decision of the lower court to award a certificate of occupancy to the respondents after their original certificate was revoked. When their original certificate of occupancy was revoked the land was allocated to the appellant who had built a shopping mall. The appellant challenged the decision to award the occupancy certificate to the respondents. It argued that the trial court lacked jurisdiction to hear the matter because of non-joinder of all parties whose rights were affected by the court’s decision. The appellant further claimed that their right to fair hearing was infringed.

The respondents argued that the revocation of the original occupancy certificate was null and void because it was in breach of the Land Act. They contended that they could not join the appellants because they did not know of their existence and they were original owners of the land. 

In deciding the matter, the court held that the respondents knew of the existence of the appellant and had a legal duty to join the appellant in the suit so that they can be given an opportunity to be heard. It ruled that the court had no jurisdiction to make orders that bind a party who was not given an opportunity to be heard. The appeal was thus upheld. 

The court considered three issues. Firstly, how a court should exercise its discretion in regulating a motion meant to regularise the process and the other meant to terminate the process. Secondly, whether the respondents were necessary parties to the suit. Lastly, whether the trial court was correct in awarding costs.

The court held that the practice was to give priority to hearing a motion set to regularise a process if the motion succeeds the other motions seeking to terminate the proceedings will be withdrawn. The court also held that respondents are necessary to a suit if they would be directly or financially affected by the outcome of the judgement of the case. Also, the court held that courts have absolute discretion to either award or refuse costs.

The court found that the trial judge instead of taking the motion for joinder and amendment, preliminary objections of the first and second respondent based on jurisdiction were taken which were meant to terminate the points in limine. The court also found that the respondents were necessary parties because they are not only interested in the subject matter of the proceedings, but they constitute those who in their absence the proceedings could not be fairly dealt with. The court found that the costs awarded were not exceptionally high or punitive to conclude that the court's discretion was not in the interest of justice.

The court accordingly upheld the appeal.
 

The court considered whether the appellants were necessary parties in the suit, and what is the procedure to determine a reasonable cause of action.

The court held that a necessary party is one who is bound by the result of an action. Further held that cause of action is the facts which when proved entitle a plaintiff to a remedy against the defendant and the procedure thereof is showing that the statement of claim contained facts which if proved plaintiffs would succeed.

The court found that the appellants had made a premature application which supported the respondent’s contention that there is a reasonable cause of action, and that the second appellant is a necessary party to the proceedings. 

The court accordingly dismissed the appeal and costs were awarded to the respondent.
 

The applicant approached the court to set aside the legal opinion and report of the first and second respondents’ respectively and in turn, the respondents challenged the validity of the application before the court.  

The court considered whether the applicant was properly incorporated and whether it had locus standi to bring a petition before the court. 

It was held that the applicant indeed did not have locus standi to petition the court to challenge the findings of the respondents due to not being properly incorporated. 
The court found that the merger between the entities that formed the applicant was in contravention of both the Constitution and legislation regulating companies. The court held that the Constitution was violated on two occasions. Firstly, when an agreement was entered into with an entity controlled by the government without the approval of the Attorney-General. Secondly, when the entity controlled by the government decided to hold a minority shareholding in the company that assisted in incorporating the applicant, which had the effect of parliament not having control of the funds as required. Legislation regulating companies was not complied with since the requirement for incorporating a private company was not observed. 

As a result, the preliminary objection raised by the respondents succeeded. The applicant did not exist in law thus it could not sue or be sued. No costs ordered as the applicant does not exist. 
 

The plaintiff sought a permanent injunction against the defendant to prevent it from selling, offering for sale, or dealing in goods bearing the plaintiff’s registered trademark. 

The court considered whether the defendant infringed the plaintiff’s registered trademark and whether the defendant was a bona fide user of the trademark. The court also considered whether the defendant had locus standi (standing) to challenge the registration of the plaintiff’s trademark.

Held, the defendant did not have locus standi to challenge the plaintiff’s trademark registration. Held, although the defendant was a trader, it could not claim innocence by virtue of advertising the plaintiff’s trademarks. The court stated that points of law had to be argued and evidence adduced by the plaintiff in so far as infringement is concerned in order for final judgement to be granted. 

The court extensively examined existing trademark legislation and decided cases and concluded that the defendant did not have locus standi to challenge the plaintiff’s registration as the plaintiff enjoyed statutory protection due to registering its mark in Uganda first.    

Interim injunction granted in favour of the plaintiff until the trial. 
 

The appellant who undertook to invest and acquire shares in a telecom company brought an action
against the respondents for breach of contract, damages and interest. The appellant’s suit was dismissed
on a preliminary point of law as it disclosed no cause of action against the 2 nd and 3 rd respondents.

The matter stems from an alleged breach of an agreement of refund by the respondent against the applicant. The agreement in question arose from a breach of the shipping contract by the applicant resulting in the respondent incurring a penalty from Tanzania Revenue Authority.

The main issue is whether the court could order for the joinder of the shipper and agent as defendants even when the applicant does not intend to sue them. The court began by clarifying that it has unlimited powers to join any party as a defendant if it is necessary to enable the court to effectually and completely adjudicate upon and settle all the relevant questions in suit. However, this power is exercised under the guidance of the dominus litis principle that grants the plaintiff the power to decide whom to sue.

In its reasoning, the court could not find a reason why the joinder was necessary as the dispute in question arose from a communication in which only the applicant and respondent were privy. Furthermore, the court heeded the respondent’s contention that as master of her own case she should not be compelled to sue a person she feels she has no claim. The court thus rejected the application to join the shipper and agent as co-defendant.

The case concerned a dispute about how to commence litigation on behalf of companies. The court held that whether or not failure to seek and obtain the permission of a company to institute litigation or an application is no longer the law in Tanzania. It was held that the issue of jurisdiction will allow a court to investigate factors to determine if the company gave permission to institute court proceedings. However, the party alleging that the company did not give authority must prove their case. Only when there is sufficient evidence will the court investigate the issue of jurisdiction. In this case, the applicant failed to prove his case and the application was dismissed.