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 view of Rule 10 of the Tanzania Court of Appeal Rules, the applicant had to display good cause for a two-year delay in seeking to file an application for leave to appeal. Counsel for the respondents contended that two years was an unacceptably long deferment and that the applicant ought to have applied directly to the appellate court for leave within two weeks after the High Court rejected the application for leave to appeal. It was submitted that the applicant was required to account for each day of the delay-period, which he had not done.
The court, on the other hand, found that the many applications with which the applicant had been busy during the two-year period – albeit fruitless – offered some explanation for the delay. It found that as the respondent was still in possession of the property which formed the subject-matter of the dispute, no prejudice would be caused to it by permitting an application for leave to appeal. Moreover, the grounds that the applicant intended to raise – illegality and fraud – were of such import that they ought to be given an opportunity for airing before the court.
The application was granted.
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.
The appellant sought an order of the court nullifying the nomination of the first respondent as candidate of the second Respondent in the 2015 Governorship election in Yobe State. This case considered whether the lower court was right to have held that the appellant was not an aspirant in the second respondent for the purpose of invoking the provisions of s 87(9) of the Electoral Act (the act), and whether the lower court was right that the appellant had not established an allegation of forged documents.
The court held that two conditions must be present to confer the necessary locus standi to invoke the provisions of S 87(9) of the act, (1) there must be a complaint that the party’s guidelines or the provisions of the act were not observed in the nomination process and (2) the complainant must have participated in the primary election. The court found that the appellant did not participate in the primary election and was thus unable to invoke the provisions of s 87(9) of the act.
In determining whether a document has been forged, a party must prove; (1) the existence of a document in writing; (2) the document or writing is forged; (3) that the forgery was by the person being accused; (4) that the party who made it knew that the document was false; and (5) the party alleged intended the forged document to be acted upon as genuine. The court held that the court below was correct in holding that the appellant had failed to prove beyond a reasonable doubt that the document was forged.
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.
The appellant sought to raise a fresh issue not canvassed in the court below. This case illustrates the court’s willingness to grant leave to raise and argue a fresh issue to ensure that justice prevails.
The court considered whether the applicants should be granted leave to raise and argue fresh issues on law in their appeal. In analyzing the principles for granting leave to raise fresh issues on appeal, the court held that one major consideration is if further evidence is required. The court held that it was satisfied that the fresh issue would be erected on the existing evidence in the printed record.
The court also held that the fresh issues must constitute a substantial point of law which will materially determine the fortunes of the appeal. The court found that the application for leave to raise and argue a fresh issue of law had satisfied all the established principles or templates for the grant of leave.
The court gave the appellant 30 days to file their brief of argument in this appeal. The court upheld the appeal.
In this case, the appellant appealed the decision of the lower court to strike out the appeal against the trial court’s interlocutory decision for being incompetent. This case illustrates how final and interlocutory orders are distinguished.
The court considered whether the Court of Appeal was right to hold that the appeal from the High Court on the issue of jurisdiction was interlocutory for which an appeal must be lodged within 14 days.
The court was called upon to determine whether or not a court’s decision is final in the course of determining the appeal. The court held that a final order at law was one which brings to an end the rights of the parties in the action. On the other hand, an interlocutory order was only intermediate and did not finally determine the rights of the parties in the action. The court held that this case was an interlocutory motion and the order that had been granted by the trial court was a final order. Therefore, an appeal on the order of the trial court was a right under section 220(1) of the Constitution.
The court also referred to Alor v. Ngene (2007) 17 NWLR (Pt 1062) 163 which provided that where a decision of a court finally and completely determined the rights of the parties, it was final, but if did not then it was only interlocutory. Thus, the court concluded that the trial court’s decision was interlocutory and could not be said to be perverse.
The court dismissed the application with parties bearing their own costs.
In this case, monies held by the appellant belonging to the Nigeria Customs Service were traced. An order nisi was served on the appellant as the fifth garnishee. This case illustrates how the garnishee proceedings do not avail the garnishee to attack a judgment that the judgment creditor and debtor have accepted.
The court considered whether the appellant should be granted leave to raise fresh issues in additional grounds of appeal. The court explained that garnishee proceedings were not a process employed by the garnishee to fight a proxy war against the judgment creditor on behalf of the judgment debtor. The court held that a decision of a court of law not appealed against is to be accepted by the parties and it remains binding on them other parties, including garnishees.
The court held that the appellant had prayed for leave to raise issues that this court did not have the benefit of the views of the court below. The court considered order 2 rule 12 of the Rules of the Court which provide that the court may exercise its discretion to accept fresh evidence. The court held that there was a mischievous purpose attached to the appellant’s application and no power in law inheres in the garnishee to fight the cause of a judgment debtor.
The court concluded that the cause of action available to the garnishee was quite limited and therefore the application in this case was an abuse of the court process.
The court dismissed the application with costs.
The main preliminary issue was whether the respondent, an executive agency, could be sued in its own name by the applicant who was seeking an order of temporary injunction.
Before the court could decide on the issue, however, it had to decide on whether the preliminary objection had been made prematurely. In response, it pointed out that the established position in the law is that a preliminary point ought to be raised as earliest as possible. It therefore held that the objection had been appropriate.
Returning to the main question, the court considered the Executive Agencies Act (the act), establishing that an executive agency can be sued under the act without joining the government and Attorney General only when there is a contractual dispute. Since the court could not ascertain that the application had been based on a contract, it found it improper that the applicant had filed for an order against the respondent without joining the government and Attorney General.
The court thus concluded that the application had been made in contravention of the legally required procedure and was thus not legally maintainable.
A company was in an earlier judgment ordered to pay specific damages for loss of business resulting from unlawful impounding of vehicles. Adjunct to that case, this case was an application for a decree by arrest and sending to prison of the Managing Director of the company. This is permitted in law as a way of executing and enforcing a judgment debt.
The applicants contended that they had appealed that judgment and hence he could not be arrested. The High Court held that the only application before the Court of Appeal was one to extend the time to file Notice of Appeal. Further a judgment debtor needs to show good cause as to why an application to execute a judgment should not be granted. The filing of an application to extend the time within which to file a Notice of Appeal is not good cause because there is already a judgment in their favour and they should be able to execute.
The court granted the application to send the Managing Director to prison unless the company paid the damages as ordered. However, the court did hold that the carrying out of the application should await the result of the appeal as carrying out the order may prejudice the appeal.
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.
In this case, the respondent had filed an application for the enforcement of a judgment by means of garnishee proceedings. The court then granted an order of garnishee nisi, which the appellants then filed an affidavit to show cause. The matter was heard and the court made the garnishee order absolute. This case illustrates effect of a null judgment.
The court considered whether the High Court erred in granting the garnishee orders absolute. The court considered the direct effect of the judgment that had been made by the same court. The court had found that the judgment of the court below was incompetent and therefore a nullity.
The court held that the law was settled that, ‘out of nullity nothing worth anything or something can emerge or be predicated’. The court held that a null judgment though it existed as a fact, was devoid of any legal consequences. It was as if the judgment did not exist.
Therefore, the court concluded that the garnishee orders absolute made by the court below had automatically become nullity as well and were liable to be set aside ex debito justitiae (as of right).
The court upheld the appeal and wholly set aside the garnishee orders absolute.
The appellants are the only producers of andalusite in South Africa. The appellants notified the competition commission (the commission) of an intermediate merger in terms of s13A Competition Act 89 of 1998 (the act), which the commission prohibited. The competition tribunal (the tribunal) confirmed that prohibition. The appellants appealed to the competition appeal court (‘CAC’) contending that the merger should have been permitted subject to tendered conditions.
The CAC held that the tribunal ought to have relied on the s12A test where:
(i) it determined at first whether merger is likely to substantially prevent or lessen competition ;
(ii) whether the merger can or cannot be justified on substantial public interest grounds by assessing the factors set out in s12A(3) of the act; and
(iii) if the determination in (i) is ‘no’, the tribunal must determine whether the merger can or cannot be justified on substantial public interest grounds.
The CAC concluded that the merger was anti-competitive as it would give rise to a monopoly market. Additionally, the merging parties failed to portray any pro-competitive gains or public interest considerations which justified the merger. The appeal was therefore dismissed.
This application was in relation to a court order that the Competition Appeal Court (the CAC) granted in June 2016. This order held that the agreement between the first and second respondents did not give rise to a merger within the meaning of s 12(1) of the Competition Act 89 of 1998 (the act).
In the current application, the core issue to be resolved was the proper interpretation of the order granted by the CAC. Furthermore, evidence was sought to be led with regards to the parliamentary hearing that was conducted on 7 December 2016.
The CAC held that this order was clear and unambiguous. Accordingly it was not open to the CAC to give it a fresh interpretation or to supplement its meaning.
With regards to the parliamentary hearing, the CAC held that an order which would empower the commission to conduct interviews with both Mr Naidoo and Ms Makhobo fell outside the scope of the order it granted in June 2016. However, since the transcript of the parliamentary hearings was a public document, it found it not to be an obstacle to have the commission examine this transcript. The CAC held that whatever information contained in this transcript may be employed by the commission in order to make a recommendation as to whether the agreement falls within the definition of merger in terms of the act.
Competition – Unlawful Competition – Collusive Tendering – appropriate penalty
This issue was whether the Minister of Finance (applicant) has powers to intervene where the respondent's (Oak Bay Investments) bank accounts were being closed. In deciding the case, the court employed the Superior Court Act 10 of 2013 (the act) which empowers the court to enquire into and determine any rights and obligation a person can claim.
The court held that the enquiry envisaged by s21(c) of the act encompasses a two-legged enquiry. The court must be satisfied that the applicant is a person interested in an existing, future or contingent right and whether the case is a proper one in which to exercise its jurisdiction.
The court ruled that there is no statute that empowers a minister to intervene in a private bank client dispute. Banks can terminate a relationship with a client at their own discretion. It observed that there was no uncertainty in regard to the relief sought by the applicant as there was a court precedent relating to relief being sought. The court held that the Minister of Finance through his counsel knew very well that he has no power to intervene. The court ruled that it is not obliged to grant the order sought by the minister because there was no uncertainty in regard to the legal question. It ruled further that to allow the relief sought would breach the principal of separation of powers as it will amount to judiciary to stray into domain of the executive.
The issue was whether it would be just and equitable to wind up the respondents in terms of s 81(1)(c)(ii) and s 81(d)(iii) read with s 157(1)(d) of the act on the grounds that executive directors of the first respondent unconsciously abused the corporate personality of the second respondent by acting unlawfully. The other issue was whether the minister had locus standi (the right or capacity to bring an action) to bring the application.
The court held that it was just and equitable to wind up a company if the company is conducting unlawful activities and where there is a deadlock between the parties. Further, that s 157 extends locus standi to a broad range of people.
The court found that there were just and equitable grounds to wind up the first respondent because there was a deadlock between the parties, unlawful misappropriation of public funds and non-disclosure. In that light, also wind up the second respondent because its existence depended on that of the first respondent. The court, also, found that the minister, as a member of the executive, had established the necessary locus standi to bring the application in the public interest in terms of s 157(1)(d).
Accordingly, the court granted the final liquidation and ordered that the costs of winding up include costs of the application.
The court considered whether a Financial Services Provider (FSP) as regulated according to the Financial Advisory and Intermediary Services Act (FAAIS) was negligent by advising the plaintiff which led to a loss of two million Rands. Further, if the second defendant was liable to indemnify the first defendant for professional negligence considering the exclusion clause in the insurance contract.
The court held that s 16 of FAAIS requires that an FSP act honestly, fairly with due skill, care and diligence. Further that the FAAIS Code of Conduct requires professionalism, in the interest of the public. In the case of an insurance contract, the court held that an exclusion clause might make proper commercial sense, be consistent with and not repugnant to the purpose of the contract.
The court concluded that the defendant did not act in accordance with expectations of an FSP, the defendant was negligent and dishonest. Further, the purpose of the insurance contract was to indemnify the insured for professional negligence; the exclusion interpreted restrictively cannot be applicable in the case.
The defendant was ordered to pay damages of two million Rands plus interest and second defendant to indemnify the first defendant.
The matter involves a merger approval application for an already implemented merger between Media24 and Novus following concerns raised by Caxton and a consequent divestiture.
The Competition Tribunal first considered whether the merger had raised any competition concerns. It dealt with two concerns; information exchange and input foreclosure. In assessing the information exchange concern, the tribunal accepted the parties’ assertion that appointing non-operational persons to the Novus board would minimise the risk of information sharing.
Concerning the possibility of competitor foreclosure, the tribunal accepted that the lack of Novus’ competitors to absorb the foreclosed capacity gives more incentive for foreclosure. However, it reasoned that this incentive is countered by the divestiture which reduces media24’s control, both de jure and de facto, over Novus. Further, it noted that the other publications handled by Novus are not in competition with Media24 thus it would not need to foreclose.
The tribunal also considered if the merger raised public interest concerns, mainly whether the merger would negatively affect smaller businesses. It was stated that noting that there is reduced possibility of market foreclosure - conduct which would negatively impact these businesses, these concerns fell away. Moreover, it was noted that the merger would in fact positively impact B-BBEE shareholders of Media24 hence it positively served public interests.
The Tribunal therefore concluded that considering the divestiture and the absence of negative competition and public interests impacts, the merger transaction has to be approved.
Application focused on the poor conditions and lack of maintenance and repair of the roads network of the farming communities of the Eastern Cape and the socio-economic effects that follow. The applicants sought a structural interdict against the respondents which would have the effect of declaring them legally obliged to repair roads in the province, along with an order that the obligations be complied with and the submission of reports illustrating the steps to be taken to fulfil the obligations.
Upon objection by the respondents, the court considered whether a structural interdict was appropriate in such circumstances and whether a constitutional or statutory basis for seeking such an interdict existed. The court held that there was a constitutional and statutory basis for a structural interdict.
According to s 125(2)(a) of the Constitution the premier, along with the executive council, exercise executive authority through the implementation of provincial legislation, thus failure to repair roads meant that the rights to education and access to health care were indirectly affected. In addition, s 3 of the act encompasses an obligation to use power which rests only on the MEC or persons delegated thereby.
Accordingly, the application and draft order of the applicants were both substantially successful as time frames were included by the court. A comprehensive order is set out in para 48 of the judgement. The first and second respondents were ordered to pay costs of application, including all reserved costs.
This was an application to compel the Competition Commission of South Africa to produce a record of investigation.
The issue emanated from an investigation by the respondent on banks on allegation of collusive conduct in regard to trade in foreign currency. The applicant was one of the banks investigated. The applicant requested without success on several times for the record of investigation from the respondent. It then made an application to compel the respondent to provide the record.
The respondent opposed the application arguing that the applicant should have proceeded by way of review under Promotion of Administrative Justice Act (PAJA) because its action amounted to an administrative act. The applicant on the other hand argued that the commission’s conduct did not constitute administrative action and the tribunal should consider the application.
In deciding the matter, the Competition Tribunal held that the respondent action did not qualify as administrative action because it does not meet the requirement of finality. However, it found that the Competition Commission cannot be compelled to provide the requested record because of the complex nature of the process. It ruled that the respondent should provide the requested record during discovery.
The court considered the conditions to grant a temporary injunction.
The application was brought by the applicants as a means to prevent the respondent from alienating and disposing of the land mortgaged by the applicants.
The court found that the conditions for the grant of a temporary injunction are: 1) show a prima facie (meaning on the face of it) case with a probability of success, 2) irreparable harm will be suffered without the possibility of adequate compensation for damages, and 3) a balance of convenience.
The court held that the grant of a temporary injunction is an exercise of the courts discretion as a means to maintaining the status quo until the question to be investigated is tried on the merits, and disposed of in finality.
The court found that the applicants hadn’t set out a prima facie case and the application lacked merits. However, as a result of procedural errors, the court found that a conditional injunction could be granted.
The applicant instituted a civil suit against the respondent in 2013 in a lower court. This suit was in relation to a consulting and ICT support services fees provided by the applicant for the respondent. With the applicant having not taken any step to prosecute the matter since 2013, the respondent applied to have the suit dismissed for want of prosecution. The court accordingly dismissed the suit.
In this court, the applicant sought an order to reinstate this civil suit and set aside the dismissal. The respondent contended that the applicant’s failure to take steps to prosecute the suit against the respondent for over three years, was justification for dismissal of want of prosecution. Furthermore, the applicant had not shown any justification for failure to take these requisite steps.
The respondent thus claimed that this application would prejudice him as he had been burdened by the suit since 2013.
This court held that the reinstatement of this civil suit would indeed prejudice the respondent. The application was dismissed on the grounds that it defeats the defence of limitation (as the claim or suit proceeded out of time) available to the respondent.
Trademark – Infringing mark resembles with the plaintiff’s mark – Infringement proved
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 plaintiff contested the validity of the sale and transfer of its property by the first defendant, alleging the transaction was tainted by illegality and fraud. The mortgaged property was auctioned in a public sale pursuant to the terms of the credit facility agreement concluded between the parties.
The contract permitted that the first defendant could execute the property without application to a court if the plaintiff defaulted on payment. In accordance with this provision, the first defendant advertised and sold the plot in a public auction to the second defendant who made the purchase in good faith.
The plaintiffs challenged the first defendant’s actions on several grounds with no success before the High Court. It was argued that, because the sum advanced by the first defendant fell marginally short of the anticipated amount, it did not have to perform its obligation under the contract to pay the stipulated installments, despite having received and utilised the sum advanced by the first respondent.
The court dismissed this argument along with further technical attacks to the alleged unlawfulness of the advertisement of the auction, the sale agreement’s adherence to statutory formalities, and the first defendant’s failure to ‘release’ the plaintiff from the mortgage following the sale of the property to the second defendant.
The judge found in favour of the defendants, ruling that the advertisement, sale and transfer of the property had occurred lawfully and did not offend any aspects of the parties’ agreement.
The issues before the court were whether the registrar erred in law when he did not exercise his jurisdiction to refer the matter to a judge for a final disposal of issues he had found as contentious in his ruling; whether the learned registrar erred in law when he unilaterally dismissed the matter without determining the contentious issues raised therein and whether it is in the interest of justice that the appellant is granted leave to tax its Advocate-Client Bill of Costs.
The court stated that the claims did not arise out of a single transaction and the best way forward for the applicant was to file an action (civil suit) to recover these various claims.
The court came to the conclusion that the application was for recovery of costs and the registrar had no jurisdiction to entertain a dispute between advocate and client as to whether costs or fees were due. Secondly it is alleged that the bill is illegal or arises from an illegal contract. The court upheld the registrar’s decision not to entertain the bill and refer the parties to a suit with the only question remaining of whether he ought to have referred the parties to the judge for trial of the suit. The court reiterated that the registrar reached the right conclusion.
The matter of recovery of costs was contentious and the registrar had no jurisdiction to entertain it.
The court dismissed the appeal.