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 respondents/plaintiffs had successfully approached a court seeking a declaration of rights asserting their bona fide title in respect of certain immoveable property. They further sought a permanent injunction against the appellant/defendant, who alleged a stronger claim to the property, barring its interference therewith.
The appellant appealed the factual findings of the trial court, which the Court of Appeal found were substantiated by the evidence on record. Absent any evidence of perversity in its factual conclusions, its findings were deemed reliable on appeal.
The respondents adduced evidence which met the criteria – from the instructive methodology of the Supreme Court – for the proof of declaration of title to land. They showed that the property had been lawfully conveyed to their grandfather and fallen unto them by succession, after which time they consistently exercised possession and ownership rights thereover. The appellant adduced insufficient evidence to establish his contestations of historical ownership to the property having accrued to his family via crown grant, as well as his own roots of title.
The appellant/defendant unsuccessfully tried to raise estoppel on the grounds of res judicata, alleging that the matter had already been heard by the Lands Registry Court. The appellate court made an adverse finding on the basis that the parties’ dispute had been incomprehensively ventilated before that authority and so res judicata could not apply.
The appeal was dismissed.
Administrative law – judicial review- determining whether and administrative body acted ultra vires
Two parties both claimed ownership to land, both believing they were first to cultivate the land. The court considered an appeal from a judgment that held neither the appellants or respondents were entitled to land in dispute. When the matter was appealed, it was remitted back to the trial court. There was a dispute over the lower court’s decision to remit the case to the trial court to consider the evidence.
The court held that the court has no power to grant a party relief that was not pleaded. However, an appellate court has the inherent power to order a retrial or remittance of a case for whatever purposes, even if this was not pleaded. In this case however, the court held that the previous appellate court was wrong to remit the case back because the trial court had already evaluated the evidence.
The court emphasised that the court must not absolve itself of its duty to carefully evaluate evidence and determine a matter on its merits. The burden of proof lies on the person who alleges, and he must lead credible and cogent evidence to support his claim.
The court held that the applicant had not proven their claim to the land and the respondent, who led credible and cogent evidence about the ownership of the land, was entitled to the property in question.
This was an appeal based on the decision of the trial court to try the question of res judicata as preliminary point of law. Res judicata dictates that once a matter is decided by a competent court it cannot be reopened in subsequent litigation.
The court held that the trial court erred in its interpretation of order 33 rule 5 of the High Court (Civil Procedure) Rules, 2004 by purporting to put an end to the full scale trial. The court held that in such circumstances, a plea of res judicata should only be sustained if it would result in a substantial disposal of the matter or render the determination of the other issues in the matter unnecessary. The court considered the uncertainty over the subject matter and the fact that a merit consideration of the action had already begun (at the trial court).
Accordingly, the appeal was upheld and an order made for the case to be remitted to the trial court for a re-trial.
This appeal considered whether the respondent was barred from re-litigating a matter concerning a dispute on the ownership of property based on the concept of res judicata. Res judicata dictates that once a matter is decided by a competent court it cannot be reopened in subsequent litigation.
The court applied the rule that an appellate court must evaluate the evidence on record as if the case is being heard afresh. The court noted that the plea of res judicata was not explicitly set out by the appellant in the High Court though it was raised as a ground of appeal to the court of appeal. The court observed that the previous courts failed to consider the plea. Base on the evidence on record, the court was satisfied that the properties described by the respondent n her writ of summons had once been litigated and held that the respondent was estopped from re-litigating the issue.
Accordingly, the court set aside the decisions of the High Court and Court of Appeal and deemed it worthy to consider the other grounds of appeal.
The case concerned the parameters for determination when faced with a second appeal, as well as the elements to establish a plea of res judicata.
It was found that there are 4 instances when concurrent findings can be interfered with namely: 1) where the findings of the trial court are unsupported by evidence on record or where reasons in support of the finding are unsatisfactory, 2) where a principle of evidence has been improperly applied, 3) where the findings are based on a wrong proposition of law, and 4) where the finding is inconsistent with crucial documentary evidence on record.
In the second appeal it was argued that the matter was res judicata. Thus, that the matter has already been determined between the same parties before a competent court. The essential elements to establish for a plea of res judicata are: 1) there has been an earlier decision on the issue, 2) there has been a final judgment on the merits and 3) the same parties in both suits. The court found that the matter was not res judicata as although premised on similar facts with the same parties, the merits of the action differ. Furthermore, the court found that the decision of the lower court was perverse and unsupported by the evidence.
The matter involve a ruling of contempt of court against the third and fourth respondents for their conduct in attacking the Chief Justice with an accusation of bias.
The court emphasised the importance of judicial independence as enshrined in the Constitution as a necessary element in maintaining judicial dignity and effectiveness, attributes that are crucial in upholding the democratic enterprise. Any attempt to disrespect the courts therefore amounts to an attack on the role of the courts and the community at large.
The court also emphasised the right to criticise the judiciary and its circumspection in exercising its power to charge citizens with contempt. However, should the conduct be of such gross a nature as to indicate a calculated attack, as in the present matter, the court would not refrain from the charge.
The court, however, acknowledged the harsh nature of the summary powers to charge for contempt, powers it accepted required circumspection. Nevertheless, the court considered the need to send a message to remind people to refrain from crossing the line between utilizing their freedom of expression and attacking the dignity of the court. It also invoked the principles of state policy which place duties to the citizenry to ensure the exercise of their freedoms upheld fundamental democratic principles. In the view of the court, the contemnors in question had dismally failed the above and therefore they were sentenced for contempt.
The applicants sought to interdict the respondents from applying the provisions of the Medicines and Related Substances Act (Medicines Act) and prevent them from seizing and detaining Playboy e-cigarettes and hookahs pending the outcome of part B of the application. A consignment of e-cigarettes belonging to the first applicant was seized by the first respondent. Part B of the application was a review of the decision by the respondents to amend Schedules 1, 2, and 3 of the Medicines Act.
The two issues in dispute were that the Medicines Act was being selectively enforced against the applicant as there had been no measures or steps taken in the past against other importers, distributors or retailers of e-cigarettes. Secondly, that the seizure of the consignment was not in accordance with the Medicines Act.
The respondents contended that selective enforcement took place due to capacity constraints. Whether or not the selective enforcement was constitutional depended upon whether there was a rational basis therefor. The court held that the selection was irrational and targeted the applicant for no objective reason. The means by which the respondent went about enforcing the Medicines Act against the applicant and no other retailer, distributor or importer was not connected to the governmental purpose of regulating e-cigarettes containing nicotine. The seizure of the consignment was set aside in terms of the Promotion of Administrative Justice Act. The court held that there was no need to make a determination on the interpretation of the Medicines Act.
The application was granted with costs.
The applicant in this application sought for an order staying the execution of the
judgment of the court of appeal until the determination of the appeal to this court, and
that costs of the application be provided for.
The applicants sought a temporary injunction against the respondents implementing or enforcing regulations 3(1), 4(4), 20(1), and 20(2) of the National Council of Sports Regulations until the disposal of related litigation. The applicants sought to prevent the implementation of the regulations on the grounds that they were the result of illegal, irrational and unconstitutional action on the part of the Minister of Sports. Implementation of the regulations, it was contended, would irreparably affect the operations and fundamental rights of National Sports Associations.
The court set out the requirements for an injunction: unless granted, the damage occasioned would be such that an award of damages would not adequately compensate the applicant; the applicant must show that their case has a probability of success; if the court is in doubt, the application will be decided on the balance of convenience; and the applicant must prove that the aim of the injunction is to maintain the status quo until the determination of the whole dispute.
Whether there was a prima facie case with a probability of success, the court held that it must be satisfied the claim is not frivolous or vexatious, and that there is a serious question to be tried. The court found that this ground was met.
As regards the grounds of irreparable damages, the court held that the applicants succeeded on this ground. In terms of the requirement of balance of convenience, the term meant that if the risk of doing an injustice is going to cause the applicant to suffer, then the balance of convenience favours them to be granted the application. The court held that the applicant met their case and allowed the application on this ground. The applicant was granted the temporary injunction.
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.
The plaintiffs sued the defendant for breach of contract. The first plaintiff claimed US $190,747 for services rendered to the defendant. The second plaintiff claimed US $3,085 being the outstanding balance for provision of services to the defendant before their contract was terminated. The plaintiffs each reached a settlement agreement in which the defendant was going to pay a portion of the claimed amount.
The plaintiffs later claimed they concluded the first payment under duress, and sought the full amounts originally claimed plus interest.
The defended raised a defence of res judicata on the grounds that the case was premised on a subject matter which has been previously decided. It produced letters of acknowledgment of full payment.
The court dismissed the res judicata defence on the basis that this was a different case because there were new parties and that the plaintiffs were now seeking interest. However, the court held that there was no evidence of duress and if the plaintiffs were assaulted they should have made a police report. The court ruled that it cannot ignore the letter of acknowledgement of full payment on the grounds that a contract entered by parties should be respected.
The case was dismissed with costs.
The applicants brought suits which were later consolidated against the respondents alleging that they were
acquired through fraud. The trial judge entered judgment against the applicant and declared her trespasser
without interest in the suit land. The applicant brought an application for stay of execution pending
disposal of appeal.
The court considered an application where the applicant argued that the Court of Appeal, in an earlier judgment in the same case, erroneously misconstrued s 272 of the Succession Act. The court held that an appeal could be re-heard if the matter is of great public importance. The court confirmed that great public importance and general importance depends on the facts and circumstances and may vary from case-to-case.
The guidelines for what would constitute public or general importance in certain cases are statements of law which affect
(1) a considerable number of people in their commercial practice;
(2) enjoyment of fundamental rights;
(3) the proper functioning of public institutions;
(4) the court’s scope to dispense redress; or (4) the discharge of duties of public officers.
If an appeal meets one of the criteria constituting public or general importance, the court will be permitted to re-hear an appeal on its merits. The court in this case held that this case raised a question of law of general importance and could be reheard.
The appellants – employees of NECTA, a state-affiliated corporate entity – were aggrieved after being transferred by order of the respondent, the Permanent Secretary, to various other institutions under the control of the Ministry of Education and Vocational Training. Unsuccessful in their review application at the High Court, the appellants contended on appeal that the respondent’s decision was made ultra vires. They argued further that it had violated the requirements of natural justice by failing to provide them with an opportunity to be heard prior to its making.
The appellate court found that the relevant provisions of the Public Service Act (‘the act’) empower the Chief Secretary to facilitate ‘labour mobility’ amongst certain state-affiliated employers, of which NECTA was one. The court held further that a purposive interpretation of section 8 of the act recognised the transfer of employees in the contemplated manner as an essential aspect of ‘labour mobility’. The act enlists the Permanent Secretary as the principal assistant to the Chief Secretary in relation to the administration of public service, meaning that the delegation of power unto it, and subsequent exercise thereof, was duly authorised by law.
Because the appellants’ employment benefits had not been impacted by the decision, and the proceedings had not been disciplinary in nature, the respondent was not lawfully required to give the appellants an opportunity to be heard. Therefore, no rules of natural justice had been breached.
The appeal was dismissed and the parties ordered to bear their own costs.
The court considered the proper remedy for a sub judice matter. Further, if the matter was a pending suit according to High Court Procedure rule 47 in the absence of an application made within six months of the last adjournment.
The court held that in terms of Civil Procedure Code s 8 when a matter is found to be sub judice the proper order is an order for stay of the matter. The court also defined the term ‘hearing’ in the ambit of rule 47 of the High Court Procedure Rules. The court held that the term is neither defined in the rules nor Civil Procedure Code. In that light, the court held that when a matter is called for orders, there is an issue of law or fact which is determined. Further, hearing and trial have different meanings. Therefore, the term hearing in rule 47 covers any judicial session before a judge or registrar.
The court was of the view that it would not deal with the matter because the court and same presiding officer had previously made the order. The court also found that the matter was called for hearing while it was still pending, and the court decided to adjourn the matter sine die. In that light, the court concluded that there was no application made within six months of the last adjournment as required by rule 47.
The court accordingly dismissed the application.