Commercial Law Index

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 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.

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 exercised its original jurisdiction to interpret constitutional provisions relating to the right of the General Legal Council to introduce examinations and interview as requirements for admission into the practical component of the law course.

The defendants raised a preliminary objection disputing the jurisdiction of the court claiming there was no issue of interpretation and also claimed that the plaintiff lacked locus standi (standing to bring the matter before the court). The court held that the matter was of public interest thus the plaintiff did not have to demonstrate personal interest. The court determined whether the imposition of the new admission requirements was unconstitutional. It was held that the council had the authority to do so but it was unconstitutional since the new requirements were implemented without legal backing (regulations). Secondly, the court determined whether the council’s failure to specify alternative places and modes of instruction for students who qualified to join the school of law was unconstitutional and held that the plaintiff was unable to prove the same. Accordingly, the matter succeeded in part and the court declared that the new admission requirements that led to exclusion of qualified persons were unconstitutional and that the Council’s policy on reviewing examination scripts and quota violated the constitution.

The plaintiff sought a writ (being a written order of the court to abstain from acting) against the defendants. The plaintiff asked the court to find that the court below did not have jurisdiction to determine matters involving the interpretation and enforcement of the Constitution. The defendants in turn raised a preliminary objection to the plaintiff’s writ.

This case considered the preliminary objection raised in objection to the writ and whether the court had jurisdiction to entertain the plaintiffs action calling for a writ against the defendants, thus did the plaintiff properly invoke the jurisdiction of the court and whether the proper parties were before the court. 

The court found that in determining whether its jurisdiction had been properly invoked, they were obliged to look at the preliminary objection of the writ before them.

The plaintiff argued that a single judge lacked the jurisdiction to determine matters involving the interpretation and or enforcement of the Constitution.

The court found that its jurisdiction had been properly invoked. On the second issue the court found that the Plaintiff had capacity to bring the application before this court. 

The court found that the first defendant was properly cited and was a party in this application, however the second defendant was not a party to the action as the plaintiff did not show any act or omission which would justify the plaintiff citing him.

The second defendant was therefore struck out.

Preliminary objection overruled.

The case related to a petroleum agreement between the Ghanaian government and a Norwegian company. The agreement was ratified by Parliament, but the Minister of Energy thereafter refused the company’s assignment of their Petroleum Agreement to its wholly owned local subsidiary. The question was whether Parliament’s permission is required to terminate a resource exploitation transaction, as they ratify it. The rationale for ratification is for transparency, openness and participation in matters involving natural resources but the exercise of checks and balances does not extend to approving termination of agreements that the executive has jurisdiction over. The court held that whereas Parliament ratified these agreements, the act remains an act of the executive and Parliament’s approval is not needed to terminate the agreement.

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.
 

This was an application for a review of the unanimous judgment of the ordinary bench of the Supreme Court which allowed an appeal filed by the respondents, in holding that failure to name foreign beneficiaries (per order 2 r. 4(2) of the Civil Procedure Rules) rendered the application void.

The court determined whether the application had passed the threshold of a review application. They applied the rule that review jurisdiction is not meant to be resorted to as an emotional reaction to an unfavorable judgment.  In making the holding, the court considered the effect of noncompliance and held that the decision of the ordinary bench was not made through lack of care or misapplication of well-established case law. Accordingly, the court held that the circumstances of the case did not satisfy the requirements for review and dismissed the application. However, the dissent judgment faulted the decision to penalize parties on account of procedural blunders especially when the blunders can be easily cured by amendment.

The court made a ruling on a preliminary objection raised against a suit filed by the respondent to review a consent judgment executed between the applicants and the Uganda Revenue Authority. The applicants submitted that the respondent lacked locus standi to make the application according to Order 46 rule 1 of the Civil Procedure Rules.

The court went into some detail and examined who a ‘person aggrieved’ is. It was held that the expression referred to a person who suffered a legal grievance. However, the court in its interpretation followed English law and held that the expression cannot be restricted to definite categories with sharp definitive lines (restrictive interpretation). Consequently, the court held that the expression would also cover public interest litigation as embodied in the Ugandan Constitution, to include a member of the public who brings an action to ensure that the law is enforced or upheld.

The court noted that the objection was procedural and that the respondent’s application for review was procedurally incorrect since it was framed as a public interest litigation application. The court therefore determined that the main issue before it was whether a wrong procedure invalidates the proceedings. The court relied on article 126(2)(e) of the constitution in making a holding that the court had jurisdiction to determine the matter without undue regard to the technicalities.

Accordingly, the court dismissed the application with costs.

The court considered the issue of jurisdiction and whether the court had jurisdiction to hear the matter based on a contract which was concluded to be governed under Dutch law.  

The defendants breached their contract as a result of not being able to fulfil their obligations in terms of the contract, and subsequently they unilaterally terminated the contracts. 

The defendant contended that the application should be dismissed as the court does not have jurisdiction to hear the suit. 

The court found that where parties have bound themselves to an exclusive jurisdiction clause, they ought to comply with that obligation, unless the party who is suing outside the scope of the prescribed jurisdiction gives adequate justification for doing so. 

The court found that in order to dispute a jurisdiction, you have to show that the intention was to evade the operation of the provision in the relevant law, and that there was an element of fraud or duress or other evidence of mala fides (meaning an act done in bad faith). If these elements cannot be proved, then the selected forum will be upheld. 

The court held that the contract was drawn and executed in Uganda, the plaintiffs reside in Uganda and if the matter was heard in a different jurisdiction the cost of housing, transporting and feeding a number of witnesses, including cost of counsel in a different jurisdiction would be nonsensical and would deny the defendants access to court. 

The court found that the expertise of courts in Uganda are competent to deal with the matter, and as a result they had the required jurisdiction to entertain the matter. 

Application is denied.