Commercial Law Index

The appellants sought to appeal the judgement of the appellate court which held that there was a legal and valid writ of execution in respect of the immovable property offered as security for the facilities provided by the respondent.

The court had to consider whether the writ of execution was legal and valid, and whether the writ was for movable or immovable property.

The court held that the writ was legal and valid and that the writ of execution was for the immovable property offered as security to the respondent.

With reliance on the procedural rules relating to the writ of execution, the court issued that a writ is executed upon the attachment of the property and not after the sale of property. The court also pointed out that when examining the rules, the court pointed out that one should adopt a purposive interpretation as a opposed to a literal interpretation because the latter will lead to an ambiguous or unjust result. The court stated that the appellant’s second ground was based on repealed law, thus it has no foundation in law.

Accordingly, the court dismissed the appeal.

This court considered whether the court below erred in stating that the plaintiffs’ action was statute barred, that they erred in their interpretation of s 24 of the Social Security Decree 1972 and finding that the abrogation (doing away with) of the scheme was illegal, and that their order for specific performance should be upheld.    

The plaintiffs were former employees of the defendant. The defendant established a pension scheme in 1976 and abrogated it in 1990. In the premise, the plaintiffs alleged that they were entitled to the payments from the pension.

The court found that in determining the interpretation of s 24 of the Social Security Decree, the court needed to ascertain whether the defendant had abrogated the scheme lawfully. It found that the plaintiffs were adequately informed of the termination of the scheme and that the defendant had lawfully wound up the scheme.

In considering whether the action was statute barred, and if the plaintiffs were entitled to specific performance, the court found that the plaintiffs’ action was instituted 16 years after the scheme was terminated. In the premise, and owing to the fact that the scheme was lawfully terminated, the plaintiffs were not legally competent to accrue a right under the scheme, thus, they were not entitled to claim specific performance.

Therefore, the plaintiffs could neither maintain an action and attempt to enjoy the benefits of the scheme, nor could they compel the defendant to compensate them under an abrogated scheme.

Appeal Upheld.

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.

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 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.

The dispute centered on whether the decision by the Land Disputes Tribunal (the tribunal) was marred by irregularities due to the absence of proper assessor involvement.

The first question was whether it was necessary to record the opinion of the assessors even when they were in agreement with the chairman of the tribunal. The court asserted that the ‘unclear involvement of assessors in the trial renders such trial a nullity.’ It also stated that it was mandatory for the opinion of the assessors to be on record. It therefore reasoned that there was a serious irregularity in the trial as the assessors had not given their opinion.

Regarding the effect of the change of assessors during the trial the court averred that this was in contravention of section 23(3) of the act as the provision did not contemplate a complete change of all assessors in its latitude.

The above was tied by the fact that the assessors had not been present throughout the whole trial, conduct which resulted in the tribunal not being properly constituted as required by s 23(1) and (2) of the act.

The final question therefore was whether the above could be cured. The court reasoned that the omissions went to the root of the matter and resulted in a failure of justice. It thus concluded that the trial was vitiated by the irregularities and nullified the tribunal’s proceedings.

The matter involved an application to extend the time period of filing an appeal against an alleged illegal decision of the High Court.

The court began by reiterating that the decision to grant an application for extension is a discretionary power. This discretionary power, however, is judicial in nature and must be confined to the rules of reason and justice. It is also required all relevant factors are considered.

Applying the above to assess the applicant’s reason that the delay stemmed from ignorance of procedure, the court regarded the reasons as insufficient. This was predicated on the case law position that ignorance of law was not a good cause for an extension.

The court also considered the question of the legality of the impugned decision as a possible reason for an extension. It relied on the decision of Lyamuya Construction Company Ltd v Board of Registered Trustees of Young Women's Christian Association of Tanzania Civil Application No. 2 of 2010 which stated that a point of law must be of sufficient importance and apparent on the face of the record to compel the court to allow for an extension. The court thus reasoned that the alleged illegality was not apparent on the face of the decision. Hence, it concluded that since it would require a long-drawn process to decipher the illegalities, illegality was not a sufficient cause for granting an extension.

The matter involved an appeal against the decision of the High Court, a decision the appellant contends was arrived at under error of procedural law.

The main issue was whether the decision of the lower court was defective for its failure to afford the appellant her right to be heard. The court relied on case law to establish that it is necessary to afford a party a fair hearing upon making an adverse decision. It accepted the position in Scan - Tan Tours Ltd v the Registered Trustee of the Catholic Diocese of Mbulu Civil Appeal No. 78 of 2012 that when an issue that is pivotal to the whole case is introduced the parties should be given a chance to address the matter before the court. In addition, the court relied on the Rukwa Auto Parts and Transport Ltd v Jestina George Mwakyoma Civil Appeal No. 45 and Abbas Sherally and Another v Abdul Fazalboy Civil Application No. 33 of 2002 cases as authority for the proposition that failure to allow for the right to be heard constituted a breach of natural justice, a fundamental constitutional right.

The court reasoned that the trial court had failed to uphold the appellant’s right to be heard when it arrived at its decision and therefore violated a constitutional right. Hence, the court concluded that the decision could not be allowed and consequently nullified the impugned decision. 

Aggrieved by a High Court decision concerning a dispute with the respondent, the applicant sought leave to escalate the matter to the Court of Appeal. The High Court summarily rejected the application without notice to the parties and prior to the set-down date of the hearing.

The appellate court was wholly convinced by the applicant’s main contention: that the High Court judgment was impugnable because the parties had not yet been heard at the time it was given. Outlining the basic tenets of the audi alterem partem principle, the court affirmed that courts are obligated to afford the parties a full hearing before determining the disputed matter on merit.

The appellate court invoked its revisional powers under section 4(3) of the Appellate Jurisdiction Act, setting aside the High Court’s decision and directing it to rehear the application.

The appellant sued the respondent for the allegedly unpaid balance of his retrenchment package. Proceedings at the High Court were adjourned several times and occurred before multiple presiding officers before a final judge made an order against him.

Noticing irregularities on the record of appeal, the appellate court focused on the competence thereof rather than the merits. The trial judge that made the order had failed to observe the relevant provisions of the Civil Procedure Code by neglecting to place on record the reasons why the matter had fallen unto his lap following several adjournments. The case law on the scope of this rule accounts for its importance in terms of judicial integrity and transparency. Moreover, the decree on record had been duly signed by neither the learned judge, nor the Deputy Registrar, as required by law.

These irregularities led the appellate court to exercise its revisional purview under section 4(2) of the Appellate Jurisdiction Act to quash and set aside the High Court judgment, before remitting the matter to the same forum for a competent judge to adjudicate the matter de novo (afresh). No order was made as to costs.

The plaintiff won a tender for the supply of various medical supplies and equipment to be distributed by the first defendant. The framework agreement specified that the delivery thereof depended on ‘call off orders’, which were written instructions issued by the first defendant requiring the plaintiff to deliver stipulated numbers of medical supplies on specified dates.

When the first defendant unexpectedly deferred an order for additional supplies, the plaintiff incurred significant unforeseen costs with respect to the storage and security of the delayed goods. The plaintiff therefore instituted a claim against the first defendant for breach of contract.

The issues were common cause. First, whether the order of the goods as agreed was indeed deferred by the defendant. Secondly, whether the defendant delayed its payment for the goods delivered under the contract. These issues were simultaneously dispensed with, the court quickly finding on the evidence before it that the answer two both questions was affirmative.

The third issue, in light of this finding, was whether the defendant’s conduct amounted to a breach. This was also answered in the affirmative as the alterations made by the defendant were a departure from the specified dates and quantities required by the contract’s call off order protocol.

The establishing of loss on the part of the plaintiff to found its claim for damages emerged fourthly. That the record clearly demonstrated the costs incurred by the plaintiff – in the shape of storage and security fees, bank interests and charges from the manufacturer for delayed acceptance of goods – rendered this issue swiftly resolvable by the court.

The fifth issue concerned the determination of relief. The plaintiff was awarded a penalty for delayed payments and further general damages.

Judgment was accordingly entered for the plaintiff.

The appellant contended that the respondent had wrongly rejected the deductibility of bad debts which the appellant believed warranted to be written off.

The appeal centred on the identification and interpretation of provisions governing losses arising from bad debts which are deductable for income tax purposes.

The court reiterated that it was bound to apply plain language of a statute to give effect to the intention of the legislature. It went on to state that statutes are to be read as a whole in context, and, if possible the court is to give effect to every word of the statute.

The intention of the legislature was to devote the area of the provisions of the Income Tax Act, 2004 (ITA) covering sections 20 to 26 for purpose of providing guidance to tax payers like the appellant. In other words section 25(4) and 25(5) (a) of the ITA shows one gets the impression that in the preparations of its tax accounts to be assessed by the respondent, the appellant was given the opportunity to indicate therein, what debt claim had in the appellant's accounting, become a bad debt ripe for deduction by the respondent.

The court pointed out that the appellant did not discharge its evidential burden to prove that it complied with any one of the two options the appellant claimed to have complied with under section 25 (5) (a) of the ITA.

It was for the above mentioned reasons that the appeal was dismissed.