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 main preliminary issue was whether the respondent, an executive agency, could be sued in its own name by the applicant who was seeking an order of temporary injunction.
Before the court could decide on the issue, however, it had to decide on whether the preliminary objection had been made prematurely. In response, it pointed out that the established position in the law is that a preliminary point ought to be raised as earliest as possible. It therefore held that the objection had been appropriate.
Returning to the main question, the court considered the Executive Agencies Act (the act), establishing that an executive agency can be sued under the act without joining the government and Attorney General only when there is a contractual dispute. Since the court could not ascertain that the application had been based on a contract, it found it improper that the applicant had filed for an order against the respondent without joining the government and Attorney General.
The court thus concluded that the application had been made in contravention of the legally required procedure and was thus not legally maintainable.
This was an application for a revision in respect of execution proceedings and a garnishee order.
The respondent raised preliminary objections: that the court lacked jurisdiction to determine the revision; that the court has not been moved and that the application was bad for not being accompanied with the order sought to be revised.
The court dismissed the final objection since there is no legal requirement for the same.
The court determined that it had jurisdiction, by applying the rule that all revisions of a civil nature in a resident magistrate court shall lie to the high court. The court interpreted this provision to include execution proceedings from resident magistrate courts.
In determining the second objection, the court observed that the applicant had cited non-existent legislation by referring to the Magistrates’ Court Act as the Resident Magistrates Court Act. It applied the rule that when an applicant cites the wrong provision the matter becomes incompetent since the court is not properly moved, to hold that it had not been moved. The court also considered that the applicant wrongly cited s 79 of the Civil Procedure Code. In doing so, it appreciated the difference on revision that may be undertaken per s 79 of the Civil Procedure Code and per ss 43 and 44 of the Magistrates Court Act: s 79 referred to finalized cases while the rest refer to any civil proceedings.
Accordingly, the application was struck out with an order as to costs in favor of the respondent.
This was a ruling based on preliminary objections against an application brought by the applicants.
The respondents submitted that the applicant’s chamber application was in contravention of Order XXIII r 3 of the Civil Procedure Code, 2002. The court observed that the respondents had cited the provisions wrongly and took reference of the right provision (Order XXIII r 1(3). The court determined the interpretation of this provision and specifically whether the prayers sought in the two applications ‘there is no valid injunction after the expiry of six months’ and ‘the order for temporary injunction granted by this court on 28th June 2012, has expired and be vacated’ were similar.
The court applied the rule that one is barred from instituting a fresh suit after withdrawing a suit without securing leave for instituting the same case. The court also observed that this rule is applicable to suits and applications. The court held that they were similar and in absence of an order to have the formally withdrawn application reinstituted, the present application could not stand.
The second respondent raised another preliminary objection based on s 5 of the Oaths and Statutory Declarations Act, 2002 as read with r 2 of the Oaths and Affirmation Rules, 2002, then withdrew it.
Accordingly, the court found merit in the preliminary objection raised by the respondents and struck out the application with and order as to costs excluding three quarter of the costs incurred by the applicant in respect of the abandoned preliminary objection.
The applicant applied to set aside an arbitration award made in 2015. It was argued that the arbitrator misconducted herself when she amended the award; when she awarded nominal charges to the second respondent; and gave no reasons for ordering costs against the applicant, who was successful at the arbitration.
An arbitration award may be set aside on the grounds of an error on the face of it when reasons given for the award are based upon a legal proposition that is erroneous. It was found that the arbitrator’s reasons for making the award were erroneous and contrary to the Civil Procedure Code when awarding costs against the winning party. No reasons were provided for apportioning the costs, and for heavily weighting the costs against the winning party.
A court may also set aside an award if it is bad on its face for involving an apparent error in fact or law, or it has not complied with the requirements of finality and certainty. The award was bad on its face as it granted costs based on an apparent error of law by apportioning greater costs to the winning party. It is trite law that the losing party should bear the costs of a matter to compensate the successful party for expenses incurred for having to vindicate their rights.
The court held that there was good cause to remit the part of the award on apportionment of costs for reconsideration by the arbitrator.
The applicant sought the intervention of the court over the attachment and proclamation of sale of a house.
The issue was whether the applicant was the bona fide purchaser and if the protection of the court applied to him.
The court expressed that the applicant bought the disputed house which was not free from encumbrances and, worse, while there was an order of the court to the effect that it should not be estranged from the second judgment debtor.
The court held that the applicant did not acquire good title to the disputed house when he purported to buy it from the sixth respondent about 38 months after the order of the court prohibiting that course and hence could not be protected by the court or regarded as a bona fide purchaser.
In the result, the application was dismissed.
The applicant filed to the court an application for the execution of the decree by attachment and sale of the judgment debtor’s property.
The issue was whether an appeal can prevent the execution of an order.
The court noted that in any civil proceedings, where the notice of appeal has been lodged in accordance with rule 83, an appeal shall not operate as a stay of execution of the decree or order appealed from except so far as the high court or tribunal may order, nor shall execution of a decree be stayed by reason of an appeal having been preferred from the decree order but the court may upon good cause shown, order stay of execution of such decree or order. The court may, upon good cause shown order stay of execution of the decree or order. It is only where there is an order for order for stay of execution that a trial court is estopped from issuing an execution order.
The execution process has two stages. The first stage is the issuance of an executive order and the second stage is the enforcement of that order which is normally done in the registry or other designed officer in the registry.
The courts took into consideration the fact that there was no order or stay of execution and concluded that it could make an order for execution despite the pendency of an appeal suit.
Execution order was granted
This case concerned a dispute between the parties which had previously resulted in the matter being referred to arbitration and an award being handed down. The court considered an application to set aside that award. The respondents made a preliminary objection to this application on three grounds: (1) that the petition could not be heard as the filing fees had not been paid, (2) the application was time-barred, and (3) the failure of the applicant to adduce evidence of the arbitration award.
On the first issue, the respondent contended that as a non-government entity, the failure to pay filing fees renders the applicant’s petition liable to be struck out. However, the court considered the rule that a government party is exempt from making payment of filing fees. In determining who is a ‘government’ party, the court considered that this status extends to local government. Accordingly the applicant is exempt from paying filing fees.
On the issue of the application being time-barred, the court considered the argument that the time within which to institute action started running from the date of publication of the award. The court found that the time for challenging an award starts to run from the day the said award is filed in court for the purpose of registration and adoption. Furthermore, the period of limitation for filing an award without intervention is 6 months, but the time for challenging the same should be brought within 60 days from the date it is filed in court for registration and adoption.
On the third issue (the adduction of the arbitral award), the court considered that it was not properly a preliminary objection per the test articulated in Mukisa Biscuit Manufacturing Ltd v Westend Distributions  EA 696. The question of whether additional evidence ought to have been adduced is not amenable to treatment as a preliminary point of law.
Accordingly, all three preliminary objections were overruled.
The court considered an application for temporary injunction restraining the respondents from selling two seized motor vehicles. Furthermore, the court considered whether the right of seizure and sale can be exercised without the intervention of the court.
This case concerned an agreement for the sale and purchase of 10 motor vehicles. The applicant alleged that the agreement was oral, whereas the respondents alleged it was written. The applicant subsequently defaulted on the payment and the first respondent seized the vehicles and threatened to sell the vehicles on public auction.
The court found that the agreement concluded between the parties was in fact a written agreement.
The court considered the provisions of S 124 – S 128 of the Law of Contract Act. The basis of these provisions found that the pawnee may retain goods pledged for payment of any debt and may bring a suit against the pawnor upon the debt and retain the goods pledged as collateral security or he may sell the thing pledged.
The court found that the applicant (pawnor) defaulted in payment and the first respondent (pawnee) had the option of bringing a suit against the pawnor and retaining the goods as security or sell the thing pledged by giving the pawnor reasonable notice. If the proceeds are less than the amount due, the pawnor is liable to pay the balance. If the proceeds are more, the pawnee shall pay the surplus to the pawnor.
A pawnee, in possession of the title and the property pledged is entitled to sell the property without intervention of the court. However, in absence of possession, he cannot take the law into his own hands without the court’s intervention.
The court found that there was no clause in the agreement empowering the first respondent to take possession and sell the vehicles, and thus he cannot exercise his right without the court’s assistance.
The main case was dismissed because a party did not appear in court when it came up for hearing. The case dealt with an application to set aside the dismissal order of the court. The court held that an application to set aside a dismissal order must be based on sufficient reasons and the court has absolute discretion where sufficient cause is shown. What amounts to reasonable or sufficient cause has not been defined because the court should have the discretion to decide based on the circumstances of each case.
In this case, the applicant claimed they were not aware of the dismissal order. The court held that sufficient reasons were not shown and the court dismissed the application to set aside the dismissal notice because the lawyers were simply negligent.
This case concerned an action for breach of contract, and an objection to jurisdiction. The dispute emanated from a loan advanced to the plaintiff by the defendant. The plaintiff deposited his share certificate as security for the loan. The plaintiff contended that the loan was fully repaid and the security discharged; notwithstanding this the defendant informed the Dar es Salaam stock exchange that the share certificates has not been discharged and that the defendant still held an interest in the share certificate. The plaintiff complained to the court that the defendant’s conduct was defamatory and had affected its operation.
The defendant raised an objection to the claim arguing that the court lacked jurisdiction to hear the matter. It based its argument on the grounds that the claim was based on an amount below 100 million shillings. The plaintiff on the other hand argued that the claim was based on US $2.5 million, an mount which falls within the jurisdiction of the court if converted into shillings.
In deciding the case, the court dismissed the defendant objection and ruled that it had jurisdiction to hear the matter.
The issue was whether the defendant breached a lease agreement. The dispute emanated from a lease agreement between the plaintiff and the defendant. Under the lease, the defendant was supposed to allocate four rooms and a corridor to the plaintiff. The plaintiff alleged that he was only allocated two rooms instead of the agreed four. He claimed damages for loss of business and general damages for loss suffered as a result of using two rooms. The defendant on the other hand argued that it allocated the four rooms to the plaintiff and that the plaintiff was the one who breached the lease agreement by not paying rent. It pointed out that the two rooms are still available and are vacant.
In deciding the matter, the court held that the defendant was in breach of contract. On damages, it dismissed the claim for special damages on loss of business opportunities pointing out that there was no evidence to support the loss. It however warded general damages of one hundred million shillings and interest of ten percent per year.
The case concerned a dispute about how to commence litigation on behalf of companies. The court held that whether or not failure to seek and obtain the permission of a company to institute litigation or an application is no longer the law in Tanzania. It was held that the issue of jurisdiction will allow a court to investigate factors to determine if the company gave permission to institute court proceedings. However, the party alleging that the company did not give authority must prove their case. Only when there is sufficient evidence will the court investigate the issue of jurisdiction. In this case, the applicant failed to prove his case and the application was dismissed.
The applicants sought leave to defend a summary suit brought by the respondent for outstanding loan amounts. The applicants claimed that if granted leave to defend they would prove that the debt was satisfied in full.
The court held that it was to determine whether the applicant demonstrated a triable issue. The applicant is only required to show a fair and reasonable defense. The amendment to the Civil Procedure Code introduced by the Mortgage Financing Act was applicable in the circumstances. It provided that an applicant may be granted leave to defend a summary suit if he proved that he did not take a loan, or has paid it. The court held that the averment that the debt was paid in full raised a triable issue that can only be proved if the applicants were granted leave to defend.
When considering whether to grant leave to defend a summary suit, the court may consider the principles set out by the Indian Supreme Court in M/S Mechalec Engineers & Manufacturers v M/S Basic Equipment Corporation 1977 AIR 577, that the defendant has a good defense; if the defendant raises a triable issue that they have a fair, good faith, or reasonable defense; if the defendant discloses facts that may be deemed sufficient to entitle them to defend; and if there is no defence, or the defence raised is illusory. These principles are to be applied after the court is satisfied that the applicant has met the requirements of the Mortgage Financing Act amendment to the Civil Procedure Code.
The application was granted.
In this case, the appellant claimed that the trial magistrate erred in holding that the appellant had a contractual duty to inform the respondent of the garnishee order. This case illustrates the duty to inform with regards to garnishee orders that also applies to banks.
The court considered whether the trial magistrate erred in holding that the appellant was legally bound to inform the respondent on the existence of the garnishee order. The court held that a bank has the duty to inform a customer in good time of a garnishee order so that the customer may take legal steps if he so wishes. Thus, the court held that though a notice from the appellant had been made in good time the fact that it reached the respondent late amounted to a breach of the fiduciary duty between them.
The court also held that it is a principle of law that an issue not raised at trial will not be entertained on appeal. Thus, the appellant was not allowed to raise questions as to whether the garnishee order was satisfied nor whether it was set aside.
In considering general damages, the court held that the trial court was correct in awarding general damages. The court dismissed the appeal in its entirety.
The court considered the proper remedy for a sub judice matter. Further, if the matter was a pending suit according to High Court Procedure rule 47 in the absence of an application made within six months of the last adjournment.
The court held that in terms of Civil Procedure Code s 8 when a matter is found to be sub judice the proper order is an order for stay of the matter. The court also defined the term ‘hearing’ in the ambit of rule 47 of the High Court Procedure Rules. The court held that the term is neither defined in the rules nor Civil Procedure Code. In that light, the court held that when a matter is called for orders, there is an issue of law or fact which is determined. Further, hearing and trial have different meanings. Therefore, the term hearing in rule 47 covers any judicial session before a judge or registrar.
The court was of the view that it would not deal with the matter because the court and same presiding officer had previously made the order. The court also found that the matter was called for hearing while it was still pending, and the court decided to adjourn the matter sine die. In that light, the court concluded that there was no application made within six months of the last adjournment as required by rule 47.
The court accordingly dismissed the application.
The respondent raised preliminary points against the application on the grounds that a valid and appropriate affidavit did not support the application according to the Civil Procedure Code, Cap 33 of the Revised Edition 2002 order XLIII rule 1. Further, that the application was incompetent for being omnibus.
The court considered whether wrongfully mentioning a person in the chamber of summons which has been sworn by another in support of the application is a fatal ailment. Further, whether the application is omnibus because it contained two applications, namely, for extension of time, if successful a stay of execution.
The court held that wrongfully mentioning a person in the chamber of summons in support of an application is trivial to warrant striking out the whole application. Further taking the course will be conforming to the spirit of the Constitution art 107A (2) (e). The court also held that the vision of the judiciary is to administer justice effectively. Therefore, it would not be inappropriate for courts of law to encourage a multiplicity of proceedings. More so, an application comprising of two or more applications which are interrelated is allowable at law.
The court found that striking out the application will amount to wasting of resources because the applicant would possibly come back later with the replacement of names in the application.
The court accordingly allowed the applicant to substitute the names in the chamber summons, rectify the names by hand with an initial beside the handwriting alteration.
The case dealt with an application by a decree holder to appoint a receiver to execute a judgment instead of a court broker.
The court held that appointment of a receiver is neither automatic nor a matter of right but is granted where there is no other effective away of executing a debt. The court held that the applicant did not provide reasons as to why a receiver would be able to execute the judgment better than a court broker. The court held that the court broker could be an effective route and hence a receiver should not be appointed. Both a receiver and court broker are accountable to the court so the court broker will be able to execute the debt effectively. Only when the court broker cannot execute effectively, can a receiver who is a disinterested third party be appointed.
The application was rejected.
A court can dismiss a matter for want of prosecution where the person who initiated the court action does not take active steps to pursue the case in court such as not appearing in court. The court dealt with a case where the lawyer did not appear before court on the date for hearing. The case was thereafter dismissed for want of prosecution. This case was an application to set aside the order to dismiss the original court suit for want of prosecution.
To set aside an order that a court suit be set aside for want of prosecution, the applicant must give sufficient grounds that must balanced against the interests of justice. In this case, the lawyer for the applicant did not appear because he was unwell on the court hearing date. The court held that this constituted a sufficient reason to set aside the notice to dismiss the case. In the interests of justice and the compelling reasons, the application to set aside the notice to dismiss was granted.
After the failure of mediation between the parties to a dispute, the matter proceeded to litigation. At a certain point, witness statements were to be filed to be filed. The applicant was meant to submit four witness statements but only filed one of them. The applicant thereafter requested an extension of time, citing difficulty obtaining the relevant name from the Ministry of Lands. The court held that the court has the discretion to grant or deny an extension of time, but that the applicant must have a sufficient reason for requesting the extension. The court granted the application because it was clear that the witness statements could not be obtained and filed with the permitted timeframe due to the delay in receiving the names.
Two distinct, but related cases are of relevance in showing the genesis of this application.
The first relates to the respondent seeking to enforce a contract of works. The second relates to the applicant’s claim to enforce an agreement to arbitrate (as per the contract agreement). In this application before the High Court, the applicant sought to have the former case stayed, pending the final determination of the latter.
The applicant claimed that he sought the order to stay the suit as there was an agreement to arbitrate; proceeding with the respondent’s claim would be nugatory. The respondent resisted this application on the basis of procedural correctness.
This court determined that the issue was to verify whether this court had jurisdiction to entertain an application for stay of the respondent’s case, in view of the notice of appeal that was instituted by the applicant.
It was held that this court lacks jurisdiction over the latter case; it is the Court of Appeal which holds jurisdiction. Therefore, the matter was dismissed in its entirety.
In this case the applicant sought relief to set aside an ex parte order. The case illustrates the enquiry into determining who can rightly sue in the name of a corporation.
The court considered whether the High Court had made a consent order, or an ex parte order. The court held that though the order against the fifth respondent was a consent order, the order against the applicant was ex parte because the applicant was not present. The court held that the law gives the remedy to set aside an ex parte order and that it had the power under s 93 of the Civil Procedure Code (CPC) to enlarge the time period for an application.
The court considered the issue as to who was entitled to bring an action for and on behalf of the applicant. The court held that it was the company alone that could initiate or defend proceedings and not a shareholder of the company. The court held that it appeared that there were disputes regarding the internal management of the applicant. Thus, the shareholders or counsel who had initiated the application were not authorised persons.
The application was dismissed and the rest of the arguments regarding extension of time to file the application were set aside without determination.
The main case was whether the issue before this court was directly and substantially in issue with a matter pending in the court below.
The respondent threatened the applicant to cease any operations and vacate a Lake Natron game controlled area it currently occupies (‘the hunting block’). The applicant filed this application, seeking this court to issue an interim order restraining the respondents from evicting them at the hunting block.
The respondent claimed that this court does not have the jurisdiction to entertain this matter as it was res sub judice, and thus should be dismissed. The reason lodged was that the issue in this matter was directly and substantially related to the pending appeal. The applicant argued against these claims and contended that in the pending appeal, he was challenging different issues in relation to this application.
This court applied s 8 of the Civil Procedure Code in determining that the facts and circumstances of this application where identical with the pending matter below, and as such res sub judice.
This application was stayed pending the outcome of the appeal in the court below.
The applicants applied for an extension of time to give a notice of intention to appeal a judgment handed down in 2012. The applicants had previously applied for an extension in 2015, but this was struck out, giving rise to the following application.
The applicants contended that the previous application was not heard on merit, and as a result the court had jurisdiction to hear the matter.
The court found that the plain language of s 11 of the Appellate Jurisdiction Act confers a discretion on the court to grant an extension of time. The discretion must be judiciously exercised after taking into account the circumstances of the case, whether the applicant acted prudently and without delay. On perusing the court record, the court found that the applicants filed a notice of appeal within 30 days of the 2012 decision, but the appeal was struck out in December 2014. The time for filing another proper notice had expired. The court found that the applicants were concerned with their appeal in 2012 until it was struck out in 2014. The fact that the requisite time within which to issue a notice of appeal had expired while they were pursuing their appeal was reasonable and sufficient cause to grant an extension of time for giving notice of an appeal.
The application for extension of time was granted, and notice was to be filed within 14 days of the date of the ruling.
The case dealt with an opposition to the filing of an arbitration award on the grounds that it was not filed in the form of a petition; additionally the necessary documents and exhibits were not filed.
The court held that the appropriate provision of the the Arbitration Act, Cap 15 of 2002 does not prescribe the form or manner in which an arbitration award should be filed, but merely provides that it should be filed. Further it does not matter if the arbitration award is submitted to the court by post or any other means, as long as the award reaches the court for filing. The court emphasised that an award must be filed in a manner that is convenient to the parties.
The court thereby refused to grant the application opposing the filing of the arbitration award because the manner chosen was in line with the law.