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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.
Banahene v Shell Ghana Limited (J4/34/2016) [2017] GHACA 36 (06 April 2017); 
CL Index Bailment Personal property Property Law Carriage of Goods Movement of property Property Law Contract Validity Formation and validity of Contract Contract Law Perfection of Contract Variation and amendment of contract Contract Law Burden of Proof Evidence LawThe court was confronted with a question of liability for undelivered goods by the driver of a haulage company contracted by the plaintiff. The meat of the enquiry focused on the issue of the effect of a failure to sign the delivery note on bailment. Having assessed the understanding and intentions of the parties the court reasoned delivery occurred at the moment of loading by the supplier, upon which liability passed to the carrier. The issue of the signing of the note or lack of by the driver thus bore no significance on the question of liability. Only sufficient reasons for failure to adduce the signature and evidence of collusive fraud by defendant would commute the carrier’s responsibility. Consequently, a claim of contributory negligence could not stand once loading had been made by the supplier as they did not have an express duty of care to ensure signing of the notes. Moreover, the mere loading was in itself delivery thus the plaintiff failed to demonstrate negligence.
Finally, the court dealt with the question of whether a contract actually existed between the parties as this had an effect on surcharges deducted by the defendant. The court found that given the nature of the contracts involved, the defendant had no contractual relationship with the plaintiff and therefore could not sue on the surcharge agreement as they were not party to the contract made for their benefit.
The court thus dismissed the appeal.
Kilimanjaro Truck Company Limited v Tata Africa Holdings Tanzania & Anor (Misc. Commercial Application No. 169 of 2015) [2016] TZHCComD 13; (29 April 2016) Collateral Security Security Banking, Finance and Insurance Law Temporary Injunction Injunctions and interdicts Civil Remedies Bailment Personal property Property Law CL IndexThe 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.
Application succeeds.