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 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 The court stated that the appellant’s second ground was based on repealed law, thus it has no foundation in law.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.
The respondent sought to introduce a new ground of appeal before the Supreme Court and the appellate court without doing so before the trial court.
The court considered whether the new ground of appeal relating to the regularity of the sale of shares belonging to the respondent’s deceased father could be raised as part of the respondent’s case.
The court held that a party is not permitted to raise on appeal an issue that they failed to raise during the trial.
Upon examining the rules regulating appeals, the court stated that r 8(8) does not override r 8(7) and that the court has discretion to whether to allow the introduction of a new ground or not. The Supreme Court stated that in the interests of justice and permission from the Constitution, it would give a ruling on the new ground. The court was of the view that the trial court had already made a ruling regarding the regularity of the sale of shares and that this ruling covered the the new ground that was being introduced.
As a result, the appeal had no merit and was dismissed.
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.
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 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 a question of competency of appeal regarding a land dispute.
The court referred to section 47(1) of the Land Disputes Courts Act which allows a person, when aggrieved by the decision of the High Court, to appeal to the Court of Appeal provided they have been granted leave in accordance with the Appellant Jurisdiction Act.
The court reasoned that as there was no valid and surviving leave to appeal, the appeal was incompetent. It considered this failure to comply with a mandatory step in the appeal process as fatal to the appeal and therefore struck out the appeal fo incompetence
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 a review application against an appeal court’s decision granted against the applicant.
The main question revolved around whether the grounds for a review application were satisfied. The court relied on rule 66(1) which states that a review application is entertained only if the decision under challenge ‘was based on a manifest error on the face of the record resulting in the miscarriage of justice.’ It also relied on the Charles Barnabas v Republic, Criminal Application No. 13 of 2009 and Chandrakant Joshughai Patel v Republic,  TLR 218 cases for the authority that a review does not challenge the merits of a decision but rather irregularities in the process towards the decision hence why it is not something that can be proved by a long-drawn process of learned argument. In addition, persuasive authority was drawn from the National Bank Of Kenya Limited v Ndungu Njau  eKLR case as authority for the proposition that a review cannot simply be raised on the basis that a different court would have reached a different conclusion on the same facts nor because the court misinterpreted the provisions of the law.
In application, the court reasoned that the grounds proffered by the applicant which included failure to prove lawful occupation of disputed land or the fact of that the disputed land belonged to the Village Council were in fact grounds of an appeal since they went into the merits of the decision.
The court therefore concluded that a review could not be raised on grounds of appeal and consequently struck out the application.
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.
The matter involved a dispute over an order of suit property sale as a remedy for breach of a loan agreement granted by the trial court against the appellant.
The first question was whether the responded had paid the whole stipulated loan amount to the appellant. Assessing the evidence in the record from the trial court, the court reasoned that the trial court’s assessment had failed to evaluate crucial evidence that showed doubt in the respondent’s claim that the whole stipulated amount had been paid. The court thus concluded that the evidence indicated that the responded had failed to fully honor its performance obligation. As a result, the responded could not pursue the remedy of obliging the appellant to transfer the property for failure to repay the loan.
The second issue concerned the right to mesne profits (i.e. profits received by tenant in wrongful possession and which are recoverable by the landlord) by the appellant and the amounts due. The court did not dwell much on the question of entitlement, instead accepting the trial court’s finding of indisputable occupation and rental collection by responded as a basis together with the fact that responded could not justify the occupation.
The court thus concluded that mesne profits were owed but order that they be set-off to the amount of the loan that the appellant still owed. The decision of the trial court was therefore set-aside and appeal allowed.
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 respondent sued the appellant for general damages and restoration of the value of certain of its properties, arising from their sale at a public auction, prompted by a warrant of distress issued under the Income Tax Act. The High Court found that the respondent bore no tax liability to the appellant at the time the warrant was issued, and consequently that the vehicles were unlawfully distrained and sold, before making an award of damages, interest and costs of suit in the respondent’s favour.
On appeal, the tax authority successfully challenged the High Court decision on the grounds of jurisdiction. It contended that the relevant tax legislation (primarily the Income Tax Act, 1973) had established fora to preside over tax disputes at the first instance. As the respondent had failed to exhaust these internal statutory remedies before launching court proceedings, the High Court lacked jurisdiction to hear and determine the matter. The court had ousted the jurisdiction of the specialised fora designed for that very purpose.
Reiterating that jurisdiction may be raised by the parties or suo moto (by the court itself) at any stage of proceedings – even on appeal – the appellate court quashed and set aside the High Court’s decision and upheld the appeal.
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.
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.
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 essence of the suit was an alleged unjustified refusal by the first defendant to berth resulting in alleged loss to the plaintiff and attaching demurrage charges.
The issue was whether the first defendant deliberately refused to berth a ship, and the court found in the affirmative. The court went on to look at if the refusal was justified. The court found that the master’s refusal to berth was based on unfounded grounds resulting in a two week delay. It was on that basis that the court held that the first and second defendants had not been wrongly sued.
The other issue was whether there was delay in offloading the consignment and whether the plaintiff suffered economic loss. These losses were in a form of demurrage charges, drop in sales as a result of closure of the factory, salaries to workers and bank charges. The court relied on the principle of general damages which states that damages in law presumes follow from the type of wrong complained of. General damages do not need to be specifically have been sustained.
In the result, the suit succeeded and the plaintiff was awarded damages.
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.
The appellant, a limited liability company dealing with the business of production and supply of natural gas, was involved in a tax dispute with the respondent.
The main issue for determination was whether or not the tribunal erred in upholding the board’s interpretation of s17 of the Income Tax Act (ITA) thereby agreeing with the disallowance by the respondent, of depreciation allowance sought to be deducted by the appellant from the income.
The court held that a person is entitled to depreciation allowance only upon meeting the two conditions stipulated in s17 of the ITA. The depreciable assets must be owned and employed in the production of the income in question.
The court stated that although the expenditure incurred in the production of the income from the business of natural resource prospecting, exploration and development shall be treated as if it were incurred in securing the acquisition of an asset, hence entitling the person to depreciation allowance on that asset, such an asset must have been in production of the income. The deduction of depreciation is based on capped life of the asset as from the first year of the production of the income.
In the result the appeal was dismissed as it was devoid of merit.
The issue was whether the eviction of the plaintiff from her house was a result of any wrongful and/or fraudulent order by the defendant.
The plaintiff's suit was founded on the tort of misfeasance in public office. The tort of misfeasance in public office had two forms, namely (i) cases where a public power was exercised for an improper purpose with the specific intention of injuring a person or persons, and (ii) cases where a public officer acted in the knowledge that he had no power to do the act complained of and that it would probably injure the claimant
The court held that the plaintiff had to prove that the first defendant exercised his power in execution of the decree in the matter for an improper purpose with the specific intention of causing injury to the plaintiff.
The plaintiff however, as held by the court, failed to discharge her burden of proof required of her that the first defendant made any wrongful or fraudulent order resulting into evection of the plaintiff from her house in execution of a decree in case. Simply stated, the evidence led by the plaintiff was too insufficient to discharge a burden of proof on the tort of misfeasance in public office.
In the result, the plaintiff's evidence alleging fraudulent acts fell short of the standard required and the suit was dismissed.