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 court considered whether the appellant has a right in law to lodge the appeal.
The court held that there is no right of appeal against a decision of a court of competent jurisdiction unless that right is expressly provided for by statute. Further, an application brought to the High Court in terms of s 16(6) of the Arbitration and Conciliation Act is final and not subject to appeal.
The court found that the facts of the subject of the preliminary objection to the arbitrator's decision, the application by the respondent to the high court and the decision thereof fall within the ambit of s 16 of the act, therefore there is no right of appeal against the decision of the high court. Further, even under s 34 of the act there is no right of appeal against the decision of the high court. Further, there was no right to appeal in the high court because respondent did not comply with time limits, thus nullifying the order.
Accordingly, the court found that the appellant had no right of appeal, parties were ordered to pay their own costs. Further, the appellant as the successful party in the arbitration entitled to costs of the high court and arbitrator.
The plaintiff registered its business name as ‘Standard Signs Uganda’, and the defendant incorporated as ‘Shandard Signs (Uganda) Limited’. The court considered whether the defendant had infringed on the plaintiff's trademark, was guilty of passing off and the applicable remedies.
The court held that s 6(1) of the Trade Mark Act grants a registered proprietor exclusive rights of use. The legal basis of passing off is that it is wrong for the defendant to represent for trading purposes that his goods are that of the plaintiff. Also, the plaintiff needs to prove that its business had acquired goodwill. If the defendant is passing off goods, the assumption is that the plaintiff is prevented from selling more goods and damages are a reasonable sum of actual loss.
The court found that the difference was only in the letters ‘t’ and ‘h’; in any event the pronunciation of ‘Standard’/’Shandard’ are similar. The other words in the business names are similar or identical, and the logos are also similar. On this basis, the court concluded that the concurrent use of the two registered trade names and logos are likely to confuse; accordingly they infringe on the plaintiff's trademark. Consequently, the defendant's registration of the name was irregular.
The court concluded that the plaintiff had shown that it had acquired goodwill, therefore, misrepresentation was made out. In that regard, had suffered damages because of erroneous belief endangered by the second defendant's misrepresentation.
The court observed that there was no case against the first defendant under the principle of corporate personality.
The court upheld the plaintiff's complaints and awarded damages, a permanent injunction and costs.
This case involved a memorandum of understanding that was departed from orally by both parties. This case illustrates how an oral variation leaves the written contract enforceable.
The court considered three issues, whether there was a valid contract, whether the counter-defendant had breached the contract, and if the counterclaimant is entitled to the remedies available.
The court held that the burden of proving misrepresentation rests on the party alleging it. Secondly, a breach of a contract arises when a party to a contract fails to meet its contractual obligation. However, where a party waives its rights, it cannot claim damages for breach on the same contract. Lastly, the court held that a party must take all reasonable steps to mitigate loss following a breach.
The court was satisfied that there was no proof of misrepresentation on the part of the counterclaimant. The court found that though there was breach of the contract by the counter-defendant, the counter-claimant had waived its rights and could not claim damages for breach on the same contract. The court was satisfied that the counter-claimant did not mitigate its loss and was therefore not entitled to any special damages.
This case looked at the whether the veil of incorporation could be lifted and the defendants held liable for the debt of the company as a result of their alleged fraudulent dealings.
The court considered that when the device of incorporation is used for some illegal or improper purpose, the court may disregard the principle that a company is an independent legal entity and lift the veil of corporate identity. A corporate personality can never be used as a cloak or a mask for fraud. The veil of incorporation will be lifted where it is proved that the company is being misused by its directors to perpetuate fraud.
The standard of proof in fraud cases requires a higher degree of probability than the proof required to demonstrate negligence.
The applicant failed to adequately plead the allegation of fraud. Accordingly, the veil of incorporation could not be lifted. The case was dismissed with costs.
The plaintiff was the registered proprietor for ‘Marie Classic Biscuits’. The defendant also sold biscuits, under the name ‘Aya Marie Biscuits’. The court considered whether the get-up of the defendant's product was similar to that of the plaintiff, whether it was likely to confuse average consumers, if there has been a passing off; and if so what remedies were applicable.
The court outlined the test for confusion about the get-up as concerning the perceptions of an average customer.
To establish ‘passing off’ the plaintiff must prove goodwill, misrepresentation and damage. Goodwill is the attractive force attached to the name, get-up or logo which brings in custom.
Misrepresentation is a false description made consciously or unconsciously by the defendant. Motive is not necessary. The onus for damages lies with the plaintiff; it must be proved that there was damage to goodwill.
The court found that the defendant’s get-up is similar to the plaintiff’s, the bulk of consumers identify the plaintiff's goods with the general impression of the red colour; in that light the plaintiff's goodwill is eroded. The court held that the red colour is not uniform for Marie biscuits around the world and therefore is not sufficient to satisfy the test of misrepresentation. The court also found that the plaintiff failed to prove actual damage to goodwill.
The court upheld the plaintiff's complaints and ordered an injunction to avoid the possibility of the defendant to reintroduce the products, and costs.