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 court considered whether a writ of summons issued for more than 12 months and not served within that period can be renewed.
The court held that pursuant to order 5 rule 6 a writ has a life span of 12 months. It follows that an application for renewal must be made to the court before the expiration of the 12 months on the grounds that the defendant had not been served or for another good reason.
The court held that a writ is regarded as void where the expiration of the period of 12 months prescribed. An application for renewal of a writ can be made before the expiration of the 12 month period of issuance of a writ and after. Although order 5 rule 6 is a specific provision for renewal of a writ which is still in force, order 47 rule 3 provides for cases where the period of its effectiveness had expired and the two provisions must be read together.
In this case, the court had difficulty ascertaining reasons to jusitfy the exercise of discretion to renew the writ which had remained unserved after 12 months. The application of the appellant in the court below was found to be without merit.
The court dismissed the appeal.
In this case, the appellant protested the total absence of any service of the processes and claimed ignorance of the proceedings at the lower court. This case illustrates the essentiality of service of court process.
The court considered whether the appellant had been duly served with the notice of appeal, other processes filed by the respondent at the lower court and also the hearing notices.
The court followed the principle provided in Ihedioha v Okorocha Appeal No. SC. 660/2015 (unreported, delivered on 29 October 2015) where it was held that service is an important aspect of judicial process. It was held that failure to serve a named party with court process offends section 36(1) of the Constitution.
The court also took into account the provision of order 2 rule 6 of the Court of Appeal Rules, which stipulates that it is mandatory for the service of the notice of appeal on a respondent to be personal.
The court held that the validity of the originating processes in a proceeding before a court was fundamental because the competence of the proceeding is a condition sine qua non (an essential condition) to the legitimacy of any suit. The court held that there was a lack of certainty that the appellant was served with any process in accordance with practice and procedure of the rules of court.
The court upheld the appeal with no costs.
This case concerns liability for damage caused to a vessel.
The court considered whether the trial court had jurisdiction over the second appellant which was only served indirectly. The court held that where a party does not object to any irregularity or invalidity in the service of process on him before
The trial court, he waives his right. In this case the second appellant, then defendant, did not object. Consequently, the court found that the trial court did indeed have jurisdiction.
The second ground of appeal was declared incompetent.
The court also considered whether the trial court had taken into account all evidence. It held that where a trial court unquestionably evaluates the evidence adduced and appraises the facts, it is not the business of the appellate court to substitute it is own view. The court was satisfied that the trial court took all evidence into account, although it was not explicitly referred to in the judgement. Consequently, the court decided against the appellants.
The court finally considered whether the negligence precludes the right to limit liability. It held that the ship master is the alter ego of the vessel on behalf of the owner. Consequently, the owner, together with the other appellants, was held jointly and severally liable.
The appeal was dismissed.
The key issues in this appeal were due compliance with time set down by the rules of court, and the principle of the audi alteram partem rule (right to be heard).
The court considered whether the Court of Appeal erred in disregarding the fifth respondent’s non-compliance of time set down for filing statement of defence. The court noted that this was caused by the ambiguous order by the Court of Appeal and confusion in the registry. Therefore, this and other grounds relating to case management directions by the court of appeal were dismissed.
The court also considered whether the court of appeal’s finding that the fifth respondent’s right to be heard was breached, was erroneous. The court affirmed the decision by the court of appeal and held that it lacked jurisdiction to proceed against a party who was not served or notified of a hearing date.
Accordingly, the appeal was dismissed and the court ordered the case be remitted to the High Court to be heard on its merits.
The application was based on the fact that the applicant had been prevented by sufficient cause from filing a defence in a civil suit which according to the court had a meritorious defence that had a high chance of success.
The main issue was whether the default judgment issued by the lower court pursuant to failure to file a written statement of defence should be set aside.
The court reiterated that the burden is on the process server to indicate whether a principal officer or director or secretary of the corporation has been served or to indicate whether he or she was unable to establish who was being served. The serving officer, in this case, was simply quiet about who was served notwithstanding that there is a stamp of the applicant on the signature of the person served. Moreover, the provisions as to service support are a fundamental rule of justice which is that of fair trial. Fair trial includes due notice of the summons on the defendant or persons sought to be summoned to appear in court.
The court held that due to the fundamental requirements of service of process on the secretary, director or other principal officer of the company, the default decree and judgment was set aside. The court held that civil procedure rules makes it necessary to identify the person served in the corporation sufficiently to fulfill the requirements for service on a corporation.
The appellant appealed the decision of the trial court to rely on an affidavit of a court process server, having held that service was properly done. The prime issue for determination was whether the appeal was meritorious.
Order V Rule 16 of the Civil Procedure Code provides that where the serving officer delivers or tenders a copy of summons to the defendant personally or to an agent or other person on his behalf he shall require that person to sign an acknowledgement of service, if refuses to sign the acknowledgement the serving officer shall leave a copy thereof with him and return the original together with an affidavit stating that the person refused to sign the acknowledgement) that he left a copy of the summons with such person and the name and address of the person (if any), by whom the person on whom the summons was served was identified.
The court held that these specifications were not indicated in the process server's affidavit and the trial court never bothered to establish and ascertain if the service was properly done to the appellant to accord her the right to be heard.
The decision of the trial court giving rise to this appeal could not be allowed to stand on account of being arrived at in violation of the constitutional right to be heard. In the result the appeal was granted.