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 applicant sought orders from the court against an order made by the same court where one judge presided and the cross-examination of the applicant was ordered.
The court had to consider two issues; whether there was a violation of the applicant’s right to privacy and whether o 46 r 2 was applied appropriately.
The court held that there was no violation of the applicant’s right to privacy and that the aforementioned rule was applied appropriately.
Regarding the alleged violation of the right to privacy, the court stated that the applicant did not make reference to any legislation that prohibits the oral examination of a judgement debtor in an open court. Regarding the rules, the court drew a distinction between Order 42 r 1 and r 2; the former dealt with garnishee proceedings and the latter dealt with proceedings other than those relating to garnishee proceedings. The court went on to say that the rational for the rule was consistent with its application.
The court dismissed the application in its entirety and ordered that the oral examination of the applicant would continue.
The appeal arose from judgement on a dispute of sale and ownership of property granted in favor of the respondent. The appellant alleged that the judgement of the trial court had been fraught with errors.
The first issue was whether the evidence before the court indicated a sale or was a receipt of rent. The court weighed the evidence and reasoned that as the appellant admitted to voluntarily signing the document in issue even when she was warned by the witness of the disjuncture between the discussed agreement and the written terms, the trial court was correct in finding that the evidence was a receipt for rent paid. The trial court’s finding of facts was thus upheld.
On the appellant’s second contention that the court had committed an error of law in attesting weight to an invalid agreement, the court responded that it was important for the appellant to point out the error that led to miscarriage of law. Since this had not been done, the court concluded that there was no evidence of miscarriage of justice.
Finally, the court also had to decide whether the granted mesne profits (i.e. recoverable profits gained by tenant during the period of unlawful possession of property) were too excessive. It stated that mesne profits are usually determined on the least rent payable rate during the period of dispute. The court thus reasoned that given the case’s circumstances, the trial court had not been justified to not use the least rent payable rate in its valuation. It thus varied the mesne profits award.
The matter dealt with a special leave to appeal application against the Court of Appeal’s decision that an appeal from the General Legal Council without lodging a Notice of Appeal to the Council was invalid.
In responding to the above question, the court relied on Article 131(2) of the Constitution and the Dolphyne case (Dolphyne (No.2) V Speedline Steveddoring Co. Ltd [1996-97] SCGLR) to find that special leave applications are discretionary and are not fettered by rules of practice nor legislation. The exercise of this discretion depended on whether, given the particular case and validity of the reasons given, leave should be granted in favor of applicant to further the interests of justice and or the public good. The court, in exercising its discretion, established that the General Council was not a lower court. Thus the court concluded that the requirement for lodging a notice was not applicable. Moreover, it reasoned that it would be in the public interest if a Supreme Court was given an opportunity to pronounce on appeals from the General Council. It thus concluded that the court below had erred in its decision resulting in the overriding of the applicant’s substantive right of appeal. The court thus granted the special leave application.
This was an appeal against the decision of the Court of Appeal to vary the decision of a single justice who had granted an application for stay of execution on terms. The single justice had ordered the respondents to pay half of the total judgment debt including half of the costs to the appellant until the final determination of the appeal.
The Supreme Court considered whether the respondents proved breach of the rules of natural justice and held that the Court of Appeal erred in varying the order of the single justice, since it failed to consider the plaintiff’s affidavit that revealed the respondent’s choice to be absent for trial. The Supreme Court also considered whether the full bench of the Court of Appeal exercised their discretion judicially in ordering the defendants to pay the appellant’s medical bills (GH¢30,000.00). The court observed that the amount was not based on the record and was insignificant thus prejudicial.
Accordingly, the court set aside the decision of the Court of Appeal and restored the decision of the single judge in its entirety. The remainder of the judgment debt was stayed for three months on condition that the defendants fulfill all the conditions of appeal.
This was a matter referred to the court for the interpretation of the right of privacy as provided in the constitution in relation to the admissibility of evidence in form of a secretly recorded telephone conversation.
The court determined whether the secret recording the defendant’s right to privacy. The court held that the recording interfered with the defendant’s right beyond what he had consented. This is because defendant opted for a means of communication that did not record his speech in a permanent form. The court also determined the admissibility of the evidence since it was obtained in violation of human rights. The court noted that Ghana does not contain a provision that provides for circumstances in which a court is required to exclude such evidence. The court was in favor of the discretionary rule approach that takes into account policy considerations when enforcing human rights by excluding evidence. It was held that admission of such evidence would undermine the integrity of court proceedings and bring disrepute to the administration of justice and should be excluded. Accordingly, the court gave an order to the same effect.
This was an appeal based on an action to set aside a consent judgment obtained before a court of competent jurisdiction on grounds of fraud.
The court determined whether such a consent judgment could be set aside despite its finality. The court observed that an appeal would not ordinarily lie against a consent judgment and that bringing a fresh action to challenge the validity of a consent judgment was a standard and accepted procedure. Thus, the court held that the court of appeal erred in treating the case as res judicata. The court also determined whether the Court of Appeal erred in striking the matter summarily when fraud was in issue. It was held that Court of Appeal erroneously denied the plaintiff a hearing leading to a violation of fundamental rule of natural justice.
Accordingly, the appeal was allowed, the judgments the High Court and the Court of Appeal were set aside and the court ordered a trial on the merits based on the pleadings as they stood at the High Court.
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 case is an appeal by Media 24 Property Ltd which owns Forum and Vista community newspapers distributed in Welkom town against a decision of the Competition Commission Tribunal (the tribunal) which found that the selling of Forum newspaper in Welkom was predatory in contravention of s 8(c) of the Competition Act (the act). The tribunal ruled that the Forum newspaper was priced below the average cost to the detriment of other newspapers. In order to reach its decision, the tribunal employed the Average Total Cost concept (ATC).
On appeal, the appellant was challenging the use of the ATC concept as an appropriate benchmark for determining predatory pricing under the act. The court held that there are two tests for determining predatory pricing under s 8(d)(iv) being the benchmark of marginal cost and the Average Value Cost (AVC). It ruled that in order for the respondent (the commission) to show that the conduct of the appellant was predatory in nature, it needed to establish that the appellant is the dominant firm involved in selling goods below the marginal or (AVC). The court found that the ATC standard cannot be used to measure predatory pricing. It ruled that the Average Avoidable Cost (AAC) was the appropriate cost benchmark to determine predatory pricing. In light of evidence provided by the parties, the court found that the respondent failed to prove that Forum’s AAC exceeded its revenue hence the appeal was upheld.
Competition – Shareholders agreement – Non-compete clause – Whether a violation of horizontal restraints under the Competition Act
The applicants sought an interim interdict against the respondent bank, with which they had a bank-client relationship, to restrain it from terminating the operations of the applicants’ banking facilities.
The court considered whether courts could direct the respondent to continue its operations in the country against its will. The court held that the respondent’s decision to exit the country’s banking sector is one that the courts cannot interfere with.
The court relied on the respondent’s constitutional right to trade, which also entails the election of not utilising such right. The court remarked that the respondent’s decision to cease operations in the country rested on commercial considerations which were highlighted in para 15 of the judgement.
The respondents right to or not trade supersedes any right the applicant may have, thus the application was dismissed with costs.
The issue was whether a donation of an interest in a close corporation to the third respondent by the deceased could be declared unlawful and void for lack of consent in terms of s 15(2) and (3) of the Matrimonial Property Act (MPA). Further, if failure to set aside the donation timeously amounted to ratification in terms of s 15(4) of the MPA.
The court held in terms of s 15(4) that consent may be given by way of ratification within a reasonable time. If there was a lack of consent when entering into the transaction, the question is whether objectively, the benefiting party could have reasonably known that consent was required.
The court found that failure of the applicant to institute proceedings timeously does not support the conclusion that it was ratification in terms of s 15(4). The court also found that the conclusion of the transaction lacked the required consent. In that light, objectively, it was not incumbent for the third respondent to investigate the legal character of the deceased's first marriage before she accepted the donation. Therefore, deemed that there was consent in terms of s 15(3).
The court accordingly dismissed the application
The matter involved a dispute over the defendants’ refusal to release a certificate of title pursuant to an agreement to do so.
The first issue was whether the defendant was justified in not releasing the certificate of title belonging to the plaintiffs. The court observed that the defendant’s conduct in refusing to release the title created an impression of premeditated non-performance with the defendant only using the purported mala fides (bad faith) conduct as a farcical reason. The court thus concluded the defendants' conduct was unjustifiable.
The second issue was whether the conduct led to loss for the plaintiffs. Concerning whether there was loss of profits due to the plaintiffs being detracted from clearing their indebtedness the court found there was insufficient evidence to support it.Similarly, on the corresponding allegation that the conduct resulted in the incurring of interests due to another creditor, the court held that payment of interests had not been proved by the plaintiff. It thus denied the claim for both loss of profits and interest payments.
However, the court did accept that the actions of the defendant prevented them from discharging their indebtedness and thus resulted in the incurral of interest. It thus absolved the payment of the interests that arose within the affected period and consequently snuffed the corresponding counter-claimed interests for the period.
Regarding damages, the court reasoned that the plaintiffs had acted on the impression that the title would be released to enter into some arrangements which were frustrated by the defendants' unjustified conduct. It therefore granted general damages. Similarly, because of the defendants' oppressive and high-handed conduct, the court granted punitive damages.
In this case the appellant sought an order of Supreme Court extending the time within which to serve a notice of appeal. Counsel for the applicant lodged a notice of appeal well within the time prescribed by the law but the respondent’s counsel was served three days out of time. The applicant apportioned the blame for this delay on the staff of the Court of Appeal which, according to the applicant, failed to make available a signed notice of appeal on time.
The court considered the application for extension of the prescribed time in light of Rule 5 of the Rules of the Supreme Court. According to this rule, the court may grant such an extension if it finds sufficient reason to do so. The court found that the fact that the applicant promptly filed the notice of appeal demonstrated zeal on the applicant’s part. However, counsel for the applicant failed to demonstrate that the court staff caused the delay and did not explain why it took nearly four months to file the application for extension before the Supreme Court. Nevertheless, the court found that refusing the application would amount to denying the applicant’s right to present and prosecute his appeal and would have disproportionately negative consequences on the applicant. The court, therefore, used its discretionary powers to grant the extension sought, thereby validating the notice of appeal and the appeal itself.
In 2009, the appellants brought an action
before the High Court on behalf of former
employees of National Sugar Works Ltd,
alleging unlawful termination of their services.
The respondents raised a preliminary objection
claiming that the suit was time barred. This
claim was dismissed by the High Court but
accepted in second instance by the Court of
Appeal. Being dissatisfied with the decision of
the Court of Appeal, the appellants filed a
further appeal before the Supreme Court. The
appellants argued that their suit against the
respondents was not time barred because they
were under disability due to war and rebel
The court concerned whether the goods seized by the defendants were all released pursuant to a consent to judgment being signed, and payment being fulfilled.
The plaintiff instituted action against the defendants for a declaration that they had breach a consent order. The defendants, without the plaintiff being present, entered a warehouse and seized a substantial number of goods.
A consent to judgment was entered into, wherein it was alleged that the defendant had breached the consent by not releasing all the goods. The plaintiff sought recovery of the goods and said that the seizure was unlawful.
The court found that the test to be applied is as follows: 1) whether all goods were released? 2) If not, what is the value of the goods not released and the potential remedies available?
The court found that the burden of proof lies on the party who asserts that the truth of the issue is in dispute. When that party adduces evidence, which is sufficient to raise a presumption that what he alleges is true, the burden of proof shifts to the other party to counter allege and produce evidence to rebut the presumption.
The court found that a substantial portion of the goods were not released as a result of the defendant being overburdened in their workforce, which deprived the plaintiff from use of the proceeds of the goods. Therefore, the plaintiff should be compensated for the economic inconvenience and awarded general damages.
The plaintiff tried to claim exemplary damages for breach of consent to judgment, however this was denied as it was not proven that the conduct of the defendants amounted to oppressive, arbitrary or unconstitutional behaviour.
This case concerns the award of damages, or not, to compensate for the negative consequences of the respondent’s repudiation of a procurement contract. In the first instance, the trial court dismissed the suit with costs after finding that there was no contract between the parties. The Court of Appeal reversed the trial court decision and awarded damages. The appellant, however, was dissatisfied with the quantum of damages awarded by the Court of Appeal and filed a further appeal to the Supreme Court, seeking damages for lost profits in addition to general damages. The respondent filed a cross-appeal proposing that the appellant’s appeal be dismissed, the decision of the Court of Appeal be reversed in part and the High court judgment and orders be restored. The respondent argued that no valid contract was entered into by the parties.
The court first considered whether there was a valid contract entered into between or executed between the parties under the 2003 PPDA Act and Regulations. PPDA section 76(3) requires that formal contracts be in writing. This requirement was not fulfilled. Consequently, no binding obligation arose out of the letter of bid acceptance. The court, therefore, dismissed the appeal filed by the appellant.
In this appeal, the first respondent filed a suit in the lower court against the appellants claiming damages for trespass on his access road and a permanent injunction from blocking the access road. Court awarded him damages and in enforcing it a warrant of attachment was issued of the appellants’ property with his school properties. The same was purchased by the second respondent by auction despite the attempt to block the sale. The grounds of appeal are premised on failure to evaluate evidence and to nullify the illegal sale.
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.
The respondent successfully brought a suit against the appellants for
declaration that she was the rightful owner of the suit land, vacant
possession, permanent injunction and damages. The appellants were
dissatisfied with the judgment of the trial court hence this appeal.
The issue before the court was an application for extension of time to file an appeal.
The applicant was seeking condonation from the court after he failed to file an appeal within the time prescribed by court rules. He based his appeal on the grounds that he was not aware of the judgment and blamed his lawyer for not informing him of the judgment. He argued that it was just and equitable for the court to extend the time to file the appeal and that there was likelihood of success.
The respondent on the other hand opposed the application arguing that the applicant failed to produce evidence to support its application.
In deciding the case, the court held that court rules empower the court to extend time limits if there are sufficient reasons. It ruled that negligence on the part of the applicant’s counsel amounts to sufficient reason for extension of time limits. The court found that refusal to extend the time limits will cause injustice to the applicant.
The application for extension of time was granted.
The appellant sought a declaration that it was the lawful owner of a piece of land in dispute, and that the respondent has been a trespasser. The respondent filed seeking to strike out the appellant’s suit for being time-barred. The trial judge allowed the application. The appellant appealed to the Court of Appeal against the dismissal. The Court of Appeal found no merit in the appeal and dismissed the same, hence this appeal.
The issue for determination for the appeal was whether the appellant could appeal to the Court of Appeal against the order of the trial court without the leave of court.
The court applied the principle that if the decision conclusively determines the rights of the parties, then it would be a decree; otherwise it would be an order. If for instance portions of a plaint are struck out as being frivolous, or if a suit is stayed, such a decision would be an order, whereas if a suit is dismissed with costs, that would be a decree. A decree is appealable as of right, whereas under the Civil Procedure Rules most orders are only appealable with leave of the court.
In applying the principle, the court found that the High Court decision disposed of the suit conclusively and the decision was therefore a decree within the meaning of s 2(c) of the Civil Procedure Act, even though it was worded as an order. It held that the appellant therefore had a right of appeal as against the decision and did not need to apply for leave to appeal to the court of appeal.
The appeal succeeded.
The appellant sought a declaration against the respondent that the Constitutional Court erred in refusing to award the appellant costs as a successful party and that it also based that refusal to award costs on incorrect principles.
The reference on taxation can be made to the Supreme Court on two grounds namely; on a matter of law or principle or on the ground that the bill of costs as taxed is in all circumstances manifestly excessive or manifestly inadequate.
The court held that there was no principle of law to the effect that the decision of the taxing officer must be subjected to the application of a ‘magic formula’ which when applied would result in a precise figure being arrived at in an almost automatic manner. Every case must be decided on its own merits and its peculiar circumstances, such as prolixity of the case in its preparation and any other peculiar complications in its presentation to the court.
The court held that, due to the difference in cases, uniformity and consistency may at times be defeated. Moreover, other factors ought to be considered by the taxing master. The fund or person bearing the costs must be considered before setting the award. A balance has to be struck between keeping the costs of litigation as reasonable as possible so as not to restrict access to court to only the wealthy, and the need to allow reasonable level of remuneration of advocates to attract worthy recruits to the profession.
In the result, the application was upheld.
The appellant applied to the supreme court seeking an enlargement time within which he should have filed his notice of appeal against the decision of the court of appeal.
The issues were whether leave to appeal could be granted to the applicant and serve the notice of appeal out of time and whether the applicant had ‘sufficient cause’ for not having been able to bring the appeal within time.
The court noted that it had the discretion to extend and validate pleadings even where there were limits created by statute. The court held that ‘sufficient reason’ must relate to the ability or failure to take particular step in time. It observed that the rule envisaged scenarios in which extension of time for doing an act so authorised or required would be granted namely: before the expiration of a limited time, after the expiration of a limited time, before an act is done and after an act is done.
The court also noted that the appellant was not to be prejudiced since the machinery which formed the core subject of the dispute between the two parties was still in possession. In the result, the court was satisfied that the appellant had established sufficient reasons for having failed to apply on time.
The appeal succeeded.
The court considered a review application arising from an application surrounding a facilitation agreement between the parties.
A receiver was appointed and it was alleged that there was a conflict of interest. The first respondent was appointed, but the directors refused to hand over the management of the company. An order was sought, to declare the duties and functions of the receiver.
The court held that it was the receiver’s duty to make returns and accounts, to uphold his fiduciary duty to the company and investigate the causes of the company’s failure. Therefore, the receiver was expected to take charge of the business.
It was found that there was nothing prohibiting the appointment of a receiver from the same firm representing the creditor. The applicant argued that it was an error on the face of it to appoint the advocate of the second respondent as the Receiver as it was a conflict of interest.
The court found that an error on the face of it must be an error on a substantial point of law staring one in the face, leaving one with no other options. Whereas, an error which has to be established by a process of reasoning, cannot be said to be an error on the face of the record.
The court found that the applicant was asking the court to review something that was never an issue in the original application.
The court held that to bring an application for review on a prayer which did not form part of the original application is improper and would cause an injustice.
The appellant claimed that he was a partner in a business with the respondent. When the partnership dissolved and the proceeds were shared; the appellant was allegedly not given anything. He then sued the respondent for a declaration that he was a partner and was entitled to the proceeds. The High Court dismissed these claims.
The appellant appealed the judgment of the High Court five months after the judgment had been handed down. He further lodged an application for extension of time to file a notice of appeal. The court below dismissed this application because of inordinate delay.
The appellant appealed to this court. The appellant’s complaint was that the application was dismissed on the basis of technicalities and not substantive justice and this is in contravention of the Constitution. In response, the respondent submitted that the appeal lacks merit.
This court found that the continuation of the proceedings in question would greatly prejudice the respondent. This is because the respondent was holding a decree from the High Court since 1995 which decree the appellant has stubbornly refused to satisfy to date. Accordingly, this application was dismissed.
This is an application to annul the consent order that was executed between the respondents and the cancellation of the third respondent’s title. The appeal was issued by the registrar against the decision of a judge who dismissed an application by the first respondent against the second and third respondents. The appeal is premised on grounds that the registrar had no jurisdiction not issue the orders and the consent is illegal.
Aggrieved by a High Court judgment concerning its dispute with the respondent, the applicant looked to the Court of Appeal for revision thereof in terms of section 4(3) of the Appellate Jurisdiction Act.
The application neglected to include the record of proceedings from which the revision arose – a fatally defective error which rendered its case incompetent. The court therefore struck the matter out yet opted leniently to exercise its discretion on the award of costs – no award was made.
Its reasoning was twofold: the applicant had itself pointed out the defective nature of its application during proceedings; and secondly, the respondent had been caused no prejudice by the applicant’s error. It had filed no papers in opposition thereof, nor had it been required to argue the material flaws of the application before the court. The interests of justice, the court held, warranted that each party bore its own costs.
The applicant looked to introduce an additional appeal ground to the memorandum of appeal it had filed challenging a High Court ruling against it.
The respondents raised a preliminary objection that the applicant was time-barred from making such an application. The parties were at odds regarding the application of the ‘sixty days rule’ – a judicially-reared rule which applies to applications where the law provides no specific timescale. The procedural dispute concerned when the sixty-day period began running – the point at which the Memorandum of Appeal was filed, or when written submissions in support of the appeal were filed.
The court found, however, that like applications for extensions of time, the ‘sixty days rule’ does not apply to applications to amend memorandum of appeal, which may be done via application at any stage of the proceedings until judgment is given, pursuant to Rule 111 of the Tanzania Court of Appeal Rules. The court qualified that, although this right is available to appellants at any time, it is still subject to preliminary objections which may be raised against the shortcoming intended to be remedied by the amendment.
Having overruled the preliminary objection, the court moved to the merits of the substantive application. It noted that the parties had primarily addressed the merits and demerits of the ground to be added rather than the merits of the application itself. The court referred to authorities stating that applications of this kind ought to be freely permitted if adverse parties are not prejudiced. The court deemed the ground to be admitted one that was crucial to the determination of the appeal and one that would indeed bear no prejudice to the respondents if adduced.
The application to amend the memorandum of appeal was granted.
Although arising from a contractual dispute between the parties – regarding the respondent’s termination of its security services agreement with the appellant – this appeal’s focus was whether certain evidence admitted by the respondent could form part of the record. The documentary exhibits in question were not endorsed in accordance with the Civil Procedure Code.
Distinguishing this case from precedents wherein the court had permitted the inclusion of defectively endorsed documents, it was held that the purported exhibits fatally lacked essential information. This included the absence of the number and title of the suit, the name of the persons who produced them, the date on which they were produced and a statement showing they had been admitted. The court found that permitting such extensive exclusions would create too great a risk of evidentiary tampering.
The exclusion of the documents form the record of appeal rendered it incompetent under the Tanzania Court of Appeal Rules, meaning the appeal had to be struck out. No order of costs was made as the issue was raised by the court suo moto (of its own motion, without the request of the parties).