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.
This case considers the adducing of fresh evidence on appeal. The respondent had claimed title to a certain land. Dissatisfied by the High Court judgment; the appellants appealed to the Court of Appeal. On appeal they sought an order granting them leave to adduce new evidence. The reasons being:
1. that this evidence showed that the disputed land had been acquired by the government and that the respondent lacked the required locus standi to institute this case;
2. in an action to protect acquired land, only the Attorney-General has the requisite standing to sue and the respondent can only sue if he had been granted leave to do so by the Attorney-General; and
3. that the trial court lacked jurisdiction to have heard the case.
The respondent contended that the documents now sought to be used as additional evidence are not of such a nature that would affect the jurisdiction of the court and that it was the appellants' choice then not to tender these documents.
This court agreed with the counsel for the appellants. In the judgment, the court found the documents entailing strong points which would likely affect the jurisdiction of the trial court.
Additionally, the issue of jurisdiction was found to be fundamental and could be raised at any stage of the proceedings (even for the first time in this court).
Thus, in the interest of justice. these documents could be tendered on appeal as fresh evidence.
The main issue faced by the court in this matter was whether an appeal could be allowed to proceed when the notice of appeal is incompetent.
On the assertion that the notice was defective for failure to reflect names and addresses of the parties, the court was quick to dismiss the objection as baseless as the error was a mere irregularity which could not affect the hearing of the appeal on merits. It reasoned that a liberal interpretation must be followed thus non-compliance per se could not be a ground for nullifying a proceeding unless it could amount to a denial of justice. Since the requirement of endorsement of names and addresses was a measure of convenience and not mandatory, it could not render the notice invalid.
On the contention that the notice did not relate to any suit, the court acknowledged the presence of incongruities between record of appeal and the notice to an extent that there was no nexus between the two. Further, it observed the incompleteness of the record, defects which amounted to a failure in invoking the court’s jurisdiction. The court decried the applicant’s failure to remedy the above defects by way of motion on notice to the lower court, a defect it held to be fundamental and stems to the very root of the appeal process. The court thus held the appeal was effectively incompetent and therefore there was no jurisdiction to hear the appeal.
The respondents/plaintiffs had successfully approached a court seeking a declaration of rights asserting their bona fide title in respect of certain immoveable property. They further sought a permanent injunction against the appellant/defendant, who alleged a stronger claim to the property, barring its interference therewith.
The appellant appealed the factual findings of the trial court, which the Court of Appeal found were substantiated by the evidence on record. Absent any evidence of perversity in its factual conclusions, its findings were deemed reliable on appeal.
The respondents adduced evidence which met the criteria – from the instructive methodology of the Supreme Court – for the proof of declaration of title to land. They showed that the property had been lawfully conveyed to their grandfather and fallen unto them by succession, after which time they consistently exercised possession and ownership rights thereover. The appellant adduced insufficient evidence to establish his contestations of historical ownership to the property having accrued to his family via crown grant, as well as his own roots of title.
The appellant/defendant unsuccessfully tried to raise estoppel on the grounds of res judicata, alleging that the matter had already been heard by the Lands Registry Court. The appellate court made an adverse finding on the basis that the parties’ dispute had been incomprehensively ventilated before that authority and so res judicata could not apply.
The appeal was dismissed.
The subject-matter of this appeal concerned the enforceability of an English court order on the parties’ dispute. The first and second respondents argued in the court below that the appellant and third respondent were in breach of the order of a lower court, and so they sought an order restraining its enforcement. The trial judge admitted a copy of the English court’s ruling but made further other orders affirming the subsistence of the lower court ruling which led the appellant to lodge an appeal on multiple grounds.
Regarding the main appeal, the court endorsed the first and second respondents’ argument that the third respondent ought to be compelled to observe the subsisting order of the lower court. It affirmed the inherent power of the court to act where an existing court judgment is flouted to uphold the integrity of the judiciary. Such an issue may be raised by either party orally, by formal application, or raised by the court itself.
Although the appellant was not part of the suit and lacked the requisite legal standing without formal application, that it was a beneficiary of the English court’s order meant that the trial judge was justified to restrain it from enforcing the order. However, the appellant had been incorrectly found to be jointly liable with the third respondent for flouting the judgment of the court below, so it experienced some success on this count.
On the challenge of the trial court’s jurisdiction to make one of its pronouncements, the appellate court found that the judge had unlawfully addressed the substance of a forthcoming application. This violated the well-established principle that a court must make its findings and orders on the same grounds of argument it has received from the parties. This issue was therefore resolved in the appellant’s favour.
Overall, the appeal was meritorious and allowed in part.
Administrative law – judicial review- determining whether and administrative body acted ultra vires
The court considered whether the failure to omit the court name in a notice of motion and error in arrangement of parties invalidated the application.
The court held that a notice of appeal is the foundation and any defect to it renders the whole appeal incompetent. In that regard, to validly invoke the jurisdiction of a Court of Appeal, it must be shown that the decision appealed against arose from the courts listed in s 240 of the Constitution.
The court found that the particulars of the claim did not invoke the jurisdiction of the court of appeal which is a material defect. Moreso, cannot be cured by an amendment. Therefore, the court was not able to grant the reliefs claimed.
The court accordingly dismissed the application.
The applicant commenced litigation but it was soon discovered that his legal representative did not have a valid solicitor’s licence. In an earlier Supreme Court decision in the same matter (Korboe v Amosa (J4/56/2014) GHASC 10 (21 April 2016) it was held that a lawyer cannot practice law for as long as they do not have a licence, and any process to commence court proceedings are null and void. The applicant prayed for review of that judgment because it caused injustice and there is no requirement that a person engaging or consulting a lawyer must be satisfied that he must have a valid licence. The court reiterated that Supreme Court decisions can only be reviewed if there are exceptional circumstances or there is critical evidence that was not available at the time of the appeal and not reasonably discovered. In other words, there should have been an error of law on the part of the court. In this case, the court held that even though the applicant was not aware of the lawyer not having a licence and the law doesn’t require him to inquire, the fact that the lawyer endorses the writ and court process renders it legally incomplete and null. It was held that the applicant failed to show an error of law or miscarriage of justice.
The Supreme Court was approached to review a clarificatory decision previously delivered by the Supreme Court’s ordinary bench.
First the court considered whether it had jurisdiction to review its previous decision. It relied on rule 54 of Supreme Court Rules 1996 (C.I 16) which grants it the power to review decisions under certain circumstances. It rejected the argument that a clarificatory decision is not a decision under rule 54. The court therefore concluded that it had the power to review its previous decision.
The court then had to consider whether exceptional circumstances existed and have resulted in miscarriage of justice. It held that where a decision fails to consider a statute, case law, fundamental principle or procedure, exceptional circumstances which justify review of the decision exist. In this case, the clarificatory decision was based on a repealed statute and failed to consider the applicable statutory provisions. Consequently, court reviewed and rectified its previous decision to align it with the correct statutory provisions on the computation of interest on judgement debts.
The appellant appealed to the Supreme Court because the lower court did not inquire into the scope of the arbitration agreement embodied in the main agreement executed by the parties, contrary to the provisions of section 6(2) of Act 798.The court held that the separation agreement provided categorically that any dispute that related to the validity of the agreement itself or the arbitration embodied therein had to be determined by arbitration. The decision to refer certain disputes to arbitration as indicated in the separation agreement arose from the consent of the parties the moment they appended their signatures to the agreement. Therefore, it had complied with the separation agreement.
Secondly, the applicant filed for appeal after three months instead of twenty-one days and did not advance any reason to explain why it failed to comply with the rules of the court. The court noted that it had the discretion to entertain such applications but had to question whether upon the facts, the discretion could be exercised in applicant’s favour. The court outlined the prerequisites for the grant of special leave to appeal as follows: an applicant who applies to the Supreme Court for special leave under article 131(2) must satisfy (i) why he did not avail himself/herself of the usual rights of appeal provided, and (ii) why he should be granted such special indulgence. The court concluded that the applicant did not advance any reason why it failed to resort to the normal appeal procedure and dismissed the appeal.
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 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.