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 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.
The plaintiff filed an action against the defendant for breach of contract, special damages, general damages, interest and costs of the suit. The two issues were whether there was a legally binding contract for decorating services between the plaintiff and the defendant and whether the plaintiff is entitled to the remedies claimed.
It was submitted that under s 55 of the Public Procurement and Disposal of Public Assets Act 2003 (PPDA or the act) all public procurement has to be carried out in accordance with the rules set out in the act and regulations and guidelines made under the act. The court held that there was non-compliance with the PPDA regulations on procurement of services.
The court stated that the act was established to ensure the application of fair, competitive, transparent, non-discriminatory and value for money procurement and disposal standards and practices. Although there was non-compliance with established procedures as set out above, the contracts committee subsequently agreed with the methodology chosen albeit after the event. They ratified the process.
The court went on to decide that on the first issue thereof of whether there was a legally binding contract for decorating services between the plaintiff and the defendant, that the permanent secretary upon clearance by the Contracts Committee was under obligation to retrospectively regularise the procurement of the services of the plaintiff representing a consortium of companies which carried out decorations. The failure to regularise the procurement of the services of the plaintiff worked injustice because the plaintiffs remained unpaid for services procured and which had been cleared by the Contracts Committee.
Each of the parties accused the other of breach of contract. The plaintiff alleged breach in terms of non-payment for services conducted. The defendant counter-claimed breach in terms of failure to comply with the set completion time and providing substandard quality work.
The defendant also contended that should it be found liable, it should be indemnified by a third party as it has been negligent in doing its work.This court held that the defendant is not entitled to indemnity or any contribution from the third party.
The court found that there was no breach of contract by the plaintiff in so far as completion time is concerned. The defendant waived the right to complain about completion time and was estopped from raising the issue. The defendant was found to not be entitled to monies claimed in the counterclaim, as there was no basis for it and this court had already held that the defendant waived its rights.
The plaintiff was found to be entitled to the monies reflected on two certificates. The plaintiff was not awarded the contractual interest claimed because the court held that the the defendant was justified in not paying contractual interest for an erroneously issued certificate.
Following its non-payment for construction services rendered, the plaintiff sued the defendant for breach of contract. A counter-claim was lodged alleging that the plaintiff breached the parties’ agreement through a significant delay in performance and sub-standard discharge of its obligations. Insofar as the third party had issued unqualified certificates of completion for the plaintiff’s/counter-defendant’s alleged malperformance, the defendant/counter-claimant contended that it was negligent and therefore liable for a degree of indemnification.
The defendant/counter-claimant was found to have impliedly waived its right to liquidated damages for late performance and consequently estopped from enforcing it. The court found further that the plaintiff’s/counter-defendant’s performance, while flawed in some respects, was not materially defective. The issuing of a certificate of completion marks the close of liquidated damages liability and commences the period of defects liability, where errors in performance are identified and submitted to the contract debtor for rectification. Failure to rectify does not give a right to sue for breach but rather gives the employer the right to refuse to release retention monies.
The third party was found to have conducted its work competently, barring one erroneously issued certificate, and was under no obligation to indemnify the defendant. The defendant was therefore indebted to the plaintiff for the outstanding amounts stipulated by the lawfully issued certificates. Because the defendant had accepted and made use of the plaintiff’s performance, despite the erroneously issued certificate of completion, the court found that it was liable to compensate the latter under the law of unjustified enrichment. Judgment was entered for the plaintiff with costs.
The matter dealt with an application for foreclosure and sale of mortgaged property as a result of failure to make loan repayments by defendant.
The main issue was whether the plaintiff could exercise its right to foreclose the property. The court cited s 8(1) of the Mortgage Act that allows one to redeem the property at any time of breach and or to get a court order effecting the redemption. Reference to How v Vigures was also made regarding the triggers for foreclosure proceedings as being when due payment has not been made on date for redemption (default) or when there is a breach of any terms of the mortgage.
The court established that as the defendant had not complied with the terms of the credit facility agreement by not paying the agreed monthly instalments for a period of two years despite repeated demands, the exercise of the right to foreclosure was held to be fit and proper.
The court therefore concluded that the plaintiff could exercise the right to foreclose and accordingly allowed the application.
In this case the plaintiff had lost valuable equipment through acts of incendiarism and sought indemnity since this had happened over 100 days into the life of the insurance policy. This case illustrates how parties are bound to their own undertakings in a contract for insurance premiums.
The court considered whether the plaintiff was entitled to indemnity under the Contractor Plant and Machinery Policy. The court considered the parole evidence rule and held that the defendant had to meet its obligations under the insurance policy. The policy insurance was clear on what it covered and thus the defendant could not invoke the parole evidence to show what the insurance policy intentions were or not. The court held that it could only enforce the insurance policy as it was.
The court also considered whether the plaintiff’s claim was fraudulent. It held that the plaintiff’s claim under the insurance policy was legitimate, as it had been proven that it possessed a valid insurance policy issued by the defendant. Thus in the absence of proof of fraud by the defendant, obligations under the insurance policy had to be met.
The court concluded that there was no fraud and thus the plaintiff was to be indemnified. The court upheld the claim and awarded damages in favour of the plaintiff.
A dispute arose between the appellant and the respondent regarding the amount payable for extra costs incurred during the delivery of goods by sea. The case was first heard by the high court, then the magistrates court where it was dismissed based on jurisdiction.
The court had to consider whether Ugandan courts had jurisdiction to hear the matter and whether the magistrate erred in law and fact when he dismissed the appellant’s counterclaim before hearing it.
It was held that Ugandan courts had jurisdiction to try the matter and that the magistrate erred in law and fact when he dismissed the appellant’s counterclaim without hearing it.
With reliance on the bill of lading, legislation and past cases, the court was of the view that the parties had voluntarily submitted themselves to the jurisdiction of Ugandan courts. In addition, the court stated that the Ugandan courts were readily available to adjudicate on the matter and it was convenient to bring the matter before Ugandan courts. Furthermore, the court issued that the magistrate ought to have considered the Constitution and civil procedure rules prior to dismissing the appellant’s counterclaim without hearing the merits.
The court ordered a new trial in the magistrate’s court. The appeal was allowed, and costs were awarded in favour of the appellant.
The plaintiff sought relief from the court for alleged breach of contract said to have been committed by the defendant. The alleged breach was on the basis that the defendant had renewed a contract the parties had entered into and breached the contract by awarding a tender to another bidder.
In considering whether there was a breach of contract, the court essentially had to decide whether the contract between the parties was renewed.
The court held that the contract was not renewed, thus no breach of contract had taken place.
The court examined the clauses of the contract that was entered into along with legislation that provides guidance regarding procurement in local government in reaching its decision. From the above instruments, the court stated that for renewal to take place, it would have to be in accordance with clause 17.1.1 of the contract and through legislation.
Seeing that that was not the case, the court stated that there was only an oral understanding between the parties to continue working together even after the contract between them had expired.
The suit by the plaintiff was dismissed with costs. Since there was no breach of contract, no remedies were available to the plaintiff.
The plaintiff company brought a suit against the defendant school and its deputy headmaster for breach of contract stating that the defendants failed to pay for services rendered by the plaintiff.
There were two issues before the court: whether there was a valid contract between the parties and whether the plaintiff carried out their services in accordance with local purchase orders 1941 and 1942.
The court held that there was a valid contract between the parties. It was also held that in rendering services, the plaintiff did not supply and install certain items in accordance with local purchase orders 1941 and 1942.
Regarding the validity of the contract, the court found that the second defendant had apparent authority to sign the local purchase orders meaning the contract was valid and that there was no express provision in the legislation stating that non-compliance vitiates legality of contract. In addition, the court found that the first defendant accepted the goods when they were delivered to it and had to pay accordingly.
The court’s judgement relied on a report by the Ugandan National Bureau of Standards which found that some of the items installed by the plaintiff were substandard.
The court awarded the plaintiff Shs 216,000 for delivery of goods and Shs 84,000 for general damages. In addition, the court awarded the plaintiff interest on the above amounts until payment was made in full.
The plaintiff entered into a loan agreement with the respondent. The plaintiff averred that the defendant had neglected and failed to pay the stipulated monthly installments and was therefore in breach of the loan agreement. The defendant however denied the claim and averred that she has never applied for any loan from the plaintiff but contended that her former employer and its directors applied for staff loans from the plaintiff.
The agreed issues however were whether there was a valid loan agreement between the parties; whether the second to fifth counter defendants were parties to the loan agreement; whether the first to fifth counter defendants jointly and severally misrepresented the contents and effect of the loan agreement and whether there is liability to pay the debt claimed by the plaintiff and what remedies are available to the parties.
The court found that there was a debt to be paid since the plaintiff and the defendant entered into a contract which is binding on both parties; the defendant was liable to pay the debt. Since the defendant signed the loan agreement personally with the plaintiff, she was to pay the money she owed them. However, since the second, third, fourth and fifth counter defendants misrepresented to the defendant the terms and contents of the loan agreement they were found liable in this respect and ordered to pay the defendant the equivalent of the principal sum which the defendant owed to the plaintiff.
In this case the defendant raised a preliminary objection to the suit on grounds that the suit is time barred and that the High Court of Uganda has no jurisdiction to try the suit. The court stated that it could not decide on the issue of time until it makes a determination on whether it could exercise its jurisdiction in the matter. The court relied on article 139 of the Constitution and the rule that a contract cannot oust the jurisdiction of the high court and held that a clause to submit to the exclusive jurisdiction of the foreign court is enforceable by the High Court. However, the court stated that the jurisdiction of the court in such circumstances is subject to the plaintiff justifying the filing of the action in Uganda, for instance by proving that the defendant was using the exclusive jurisdiction clause to avoid liability. The court was satisfied that the plaintiff in this case had failed to do so. Accordingly, the court enforced the terms of the contract, sustained the preliminary objection and dismissed the suit with costs.
This case considered the instance when the veil of incorporation can be lifted. The mind of a company where guilty intent or responsibility is being considered cannot be separated from the minds of the directors. The corporate veil ought to be lifted where there is proof of involvement of the directors in fraud. Once there has been an allegation of fraud against the company, the directors are ay virtue alleged to be involved. Accordingly, the veil of incorporation will be lifted where it is proved that the directors, acting as the mind and body of the company were involved in an act of dishonesty.
Trademark – Fraudulent registration of foreign trademark in Uganda
Copyright – Infringement of intellectual property rights
The plaintiff sued the defendant for breach of contract following its failure to pay in full – inclusive of VAT and penalties accruing from delayed payment – for construction services rendered. Two clear issues arose: whether the plaintiff was entitled to the sum claim and what remedies were available to the litigants. The contract provided for specific procedures in the event of disputes between its signatories. The plaintiff’s grievances with the project manager’s final certificate (which confirmed the amount owing by the defendant) ought to have been aired via these channels, so the defendant could be alerted thereto.
Because timeous and effective payment was based on certificates, the court found that the defendant could not be held liable for non-payment exceeding the certified amount. The court accordingly reduced the sum claim. Because the defendant had hampered the plaintiff’s commercial endeavours through its breach, it stood liable for general damages. The plaintiff provided no elucidation on the quantum thereof, and so its determination fell to the court’s discretion.
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 sought a permanent injunction against the defendant to prevent it from selling, offering for sale, or dealing in goods bearing the plaintiff’s registered trademark.
The court considered whether the defendant infringed the plaintiff’s registered trademark and whether the defendant was a bona fide user of the trademark. The court also considered whether the defendant had locus standi (standing) to challenge the registration of the plaintiff’s trademark.
Held, the defendant did not have locus standi to challenge the plaintiff’s trademark registration. Held, although the defendant was a trader, it could not claim innocence by virtue of advertising the plaintiff’s trademarks. The court stated that points of law had to be argued and evidence adduced by the plaintiff in so far as infringement is concerned in order for final judgement to be granted.
The court extensively examined existing trademark legislation and decided cases and concluded that the defendant did not have locus standi to challenge the plaintiff’s registration as the plaintiff enjoyed statutory protection due to registering its mark in Uganda first.
Interim injunction granted in favour of the plaintiff until the trial.
The appellant sought to overturn a taxation ruling of the Deputy Registrar, contending that the latter had erred in fact and law in coming to its decision. The order prohibited the appellant from charging its client certain fees for services rendered over and above the initial instruction costs.
The Registrar had found that the appellant was estopped from claiming the fees due to the allegedly misleading way it had conducted itself in respect of the client regarding the anticipated bill of costs. The appellate court upheld the challenge, finding that the provisions of the Advocates Act expressly regulated the exclusion of bills of costs, thereby limiting – in terms of s 14 of the Judicature Act – the High Court’s discretion to apply principles of equitability when adjudicating disputes of this nature.
Both legislation and case law affirmed the appellant’s right to taxation of its bill of costs against the respondent, as it had met the relevant statutory requirements.
This was an appeal from decision of the Court of Appeal on grounds that;
The Justices of Appeal erred in law and fact when they granted orders for
cancellation of the fifth appellant’s title to the suit property which was neither
sought nor pleaded by the respondents, thereby occasioning miscarriage of
The court considered an application under 0.37 rr.1 and 9 of the Civil Procedure rules (S.1,65-3) for a temporary injunction restraining the defendant from carrying out any work on the suit premises.
The applicant was the registered proprietor of the premises, although the leases had expired on the land, the title had not been cancelled.
The court found that granting a temporary injunction is an exercise of judicial discretion and the purpose of the granting is preserving matters in status quo until the question to be investigated can be finally disposed of.
The conditions for a grant of injunction are that there must be a prima facie (meaning on the face of it) case with a probability of success, if irreparable harm will be suffered which cannot be compensated adequately by an award for damages and if in doubt, it will be declined on a balance of convenience.
Irreparable injury does not mean there must not be physical possibility of repairing the injury, but that the injury is substantial or material.
The court found that if a prima facie case with a probability of success was proved, the plaintiff would be likely to suffer irreparable damages and the balance of convenience was in favour of the plaintiff as he was likely to suffer more damages than that of the defendant.
The matter involved an application for the setting aside of an order for default judgment and the order of execution of the default decree. It also involved an application for unconditional leave to defend the underlying suit that gave rise to the default judgment.
Substantively, the first issue was whether the applicant had been aware of the summons to defend the suit for the amount claimed. It was established that there was a serious flaw in the service by respondents particularly in the absence of a return of service summons. There was therefore no evidence of summons or a court order being served to the applicant on the court record and the application for leave to defend outside the stipulated timeframe could not be said to be in breach of a court order. Further, it was also held that the absence of effective summons justified the setting aside of the default decree.
Secondly, there was a question of the legality of the suit brought against the appellant for default as it was argued that the basis was an illegal instrument. As there was an argument that the cheque and acknowledgement the suit was based on were forged, the court reasoned that there was no difference between the signature on the cheque and on the acknowledgment. However, as there was no forensic evidence supporting this, the court offered the applicant conditional leave to defend the underlying suit against him. The court therefore concluded under a conditional pretext of the suit’s illegality and thus allowed the application for conditional leave to defend.
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.
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.
In this case the applicant wanted a writ of mandamus to compel the first respondent to pay the outstanding amounts with interest as ordered from the High Court. This case emphasizes that there must be a clear right in order to use a mandamus.
The court held that in order to obtain a writ of mandamus the following must be established: (1) a clear legal right and a corresponding duty in the respondent; (2) that some specific act or thing which the law requires that particular officer to do has been omitted to be done by him; (3) lack of any alternative, and (4) whether the alternative remedy exists but is inconvenient, less beneficial or less effective or totally ineffective.
The rights of the party seeking the writ of mandamus must not be doubtable. The court was not satisfied that the issues regarding the interest to be awarded and the amount due where properly determined. The court found that the applicant’s rights were doubtable. The court dismissed the application and advised the parties to seek an appropriate intervention to give proper interpretation of the trial judge’s judgment.