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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.
Nigerian Agricultural Co-operative Bank Limited v Ozoemelam (SC.75/2005 (NO.1))[2016] NGSC 72 (22 January 2016) (SC.75/2005 (NO.1)) [1960] NGSC 1 (21 January 2016); 
CL Index Sale of Property Sale of personal property Property Law Breach of Sale Agreement Breach of Contract Contract Law Stay of Execution Civil RemediesThe respondent bought a piece of property from a third party. After the respondent had taken possession of the property, he became aware of the fact that his predecessor-in-title had mortgaged the property to the appellant. The respondent paid off the outstanding debt and thereafter demanded the release of the title deeds to him. Instead, the appellant demanded some authorisation from his predecessor-in-title before the documents could be released to him. The respondent instituted a claim on this basis. The trial court judgment was in the respondent’s favour.
After the respondent attached the property the appellant filed an application praying for an order staying execution of the judgment, particularly the sale of the property and ordered release thereof; before hearing of the application. The trial court dismissed this application.
The appellant eventually appealed to this court asking for the same. The appellant urged this court to allow the appeal, set aside the ruling of the court below and grant an order directing the High Court to retain the amount deposited as per judgment.
This court held that the order sought to be stayed was made by the trial court and there was no appeal against that order to the Court of Appeal. That being the case, it was held that it would be a wasteful academic exercise to delve into the merit of the issue. Consequently the appeal was dismissed.
Niger Classic Investment Limited v UACN Property Development Company Plc and Another (CA/L/90/13)[2016] NGCA 20 (22 June 2016) (CA/L/90/13) [2016] NGCA 20 (21 June 2016); CL Index Breach of Contract Contract Law Specific Performance Performance of contract Contract Law Offer and Acceptance Formation and validity of Contract Contract LawThe claimant/appellant purported to buy a property offered to it by the defendant/first respondent and consolidate the transaction with its purchase of another of the latter’s properties. This was proposed via counter-offer. The appellant proceeded to pay a down-payment for both properties after the agreed time-period, the bulk of which was unilaterally appropriated by the respondent towards payment for only one of them in reverting to the terms of the original agreement. Aggrieved, the appellant approached the High Court seeking layered relief to uphold the consolidated sale. The trial court found that, on the facts, the consolidation agreement was valid but conditional on the specified time-frame. It was therefore aborted as time was of the essence and payment had not been made in the required period. Judgment was entered in favour of the first respondent.
Challenging the trial court’s decision, the appellant argued that a binding agreement had been created, and the respondent had waived the issue of timeous payment when it accepted the appellant’s performance beyond the stipulated time-period. The court dismissed this claim, finding in concurrence with the court below that the failure to meet the time requirement – a term that was accepted by the appellant – thwarted the consolidation. No waiver had occurred.
Specific performance was unavailable to the appellant as the respondent had not breached their existing agreement. Its claim attacking the trial court’s jurisdiction to make an order regarding the transfer and registration of the property – directed at the second respondent – also failed.
The appeal was accordingly dismissed.
Enwerem v Abubakar and Another (CA/A/351/2013)[2016] NGCA 58 (19 April 2016) (CA/A/351/2013) [2016] NGCA 58 (18 April 2016); CL Index Evaluation of Evidence Evidence Law Waiver Breach of Contract Contract Law
The court considered whether the court below properly evaluated the evidence, and were they correct in expunging the evidence. Furthermore, it looked at whether the doctrine of waiver had been correctly applied.
This case looked at whether the revocation of the property as well as the sale of the property was null and void.
The court considered s 83(1)(b), 2(a) and (5) of the Evidence Act and found that a wrongly admitted piece of evidence is not a sacrosanct, it is still subject to scrutiny by the appellate court.
The court found that inadmissible evidence ought not to be admitted, even by mistake, and if it is, the appeal court ought to consider the case on the legally admissible evidence and preclude that which is inadmissible.
It is trite that the evaluation of evidence is essentially the function of the trial judge, where the trial judge has unquestionably evaluated the evidence before him and ascribed probative value to it, it is not the business of the appeal court to disturb such findings of fact, unless the findings are perverse.
In considering the doctrine of waiver, it was found that waiver means that the person in whose favour a benefit or right exists, is aware of those rights or benefits, but chooses to freely not take advantage of those rights or benefits. Thus, the doctrine of waiver could not be applied.
Appeal dismissed
Guaranty Trust Bank PLC v Fox Glove Nigeria Limited (CA/L/620/2013)[2016] NGCA 88 (24 March 2016) (CA/L/620/2013) [2016] NGCA 88 (23 March 2016); CL Index Breach of Contract Contract Law Termination of Contract Contract Law Bank-Customer Relationship Bank Banking, Finance and Insurance Law Bank Guarantee Bank Banking, Finance and Insurance LawThe issue was whether the unilateral withdrawal of a bank guarantee by the appellant amounted to breach of contract.
The appeal emanated from judgement of trial court which found that the withdrawal of a bank guarantee by the appellant
was in breach of contract. The appellant had advanced a bank guarantee to the respondent to guarantee its trading capacity with MTN, a communications company for which it was a distributor. The parties agreed that the contract can only be terminated by giving 60 days’ notice period. The appellant unilaterally terminated the contract.
The respondent successfully challenged the termination in a lower court and was awarded damages amounting to ten million Naira with pre-trial interest. The appellant appealed the decision on the basis that it withdrew the bank guarantee after the respondent breached the agreement. It argued that the respondent’s claim was premised on negligence which had not been proven.
The respondent maintained that the appellant breached the contract by withdrawing the bank guarantee resulting in MTN cancelling its distribution agreement with the respondent. It further argued the delivery of termination was never proved.
The court held there was no evidence to show that the termination notice was delivered to the respondent. It found that the withdrawal of the bank grantee amounted to a breach of contract. The court ruled that it has no power to interfere with damages awarded by the lower court unless special circumstances exist. It found that the ten million award was too excessive warranting it to intervene.
The appeal was dismissed. General damages were reduced from ten million Naira to five million Naira.
Biosola Nigeria Limited and Another v. Mainstreet Bank Limited and Others (CA/L/890/07)[2016] NGCA 99 (28 November 2016) (CA/L/890/07) [2016] NGCA 99 (27 November 2016); CL Index Transfer of Shares Shares Company Law Mortgage Mortgage, loans and bonds Property Law Default On Contract Termination of Contract Contract Law Waiver Breach of Contract Contract LawThe appeal emanated from the advance of a loan by the first respondent to the appellant. The appellant deposited with appellant bank a certificate of occupation and a share certificate as security. The appellant then failed to repay the loan resulting in the sale of the appellant’s shares deposited as security. The appellant instituted legal proceedings against the respondent claiming that it was not indebted to the first respondent for any amount because the arrangement between the parties was a joint venture agreement and that the sale of the second appellants shares was done mala fide and without their consent.
The challenge was dismissed. The appellant appealed against the dismissal arguing that the trial court erred. It pointed out that the deed of mortgage was not properly executed and that the contract between the parties was invalid.
The respondent argued that the appellant was raising new issues not canvassed in the court below. It argued that there was a valid contract between the parties.
The court held that there was a loan agreement between the parties and the appellants did not complain of anomalies in the contract hence it waived any right it may have had. The court ruled that a party cannot raise new issues in an appeal and dismissed the appeal.
Andreas Bschor Gmbh & Co. Kg. v Birim Wood Complex Ltd and Another (J4/9/2015) [2016] GHASC 68 (22 March 2016); CL Index Absence of Written Contract Formation and validity of Contract Contract Law Sale of Goods Sale of personal property Property Law Goods Fit For Purpose Condition and treatment of property Property Law Contract Warranty Contractual clauses Contract Law Breach of Contract Contract LawThe parties entered into a business transaction for the supply and installation of a saw-mill. However, the transaction was not covered by a properly drawn up contract. Furthermore, it became apparent that the plaintiff provided the defendant with a plant which was defective and not fit for the purpose it was intended.
This case considered whether the Court of Appeal had misdirected itself to the defects contained in the machinery, whether there was a breach of a fundamental obligation and whether the goods sold were fit for the purpose which they were intended to be used.
The court considered the Sale of Goods Act, 137 of 1962 (the act) and found that the breach of a promise under the act depends on the category of promise; either a fundamental obligation, condition or a warranty. Breach of a fundamental obligation or a condition entitles the party not in default to repudiate the contract of sale and if it is the seller who is in breach, the buyer can reject the goods. The breach of a warranty cannot lead to a repudiation or rejection of the goods but will entitle the party not in breach to damages. However, a party entitled to repudiation and rejection may waive their right and opt for damages.
The court considered whether the goods were fit for the purpose that they were provided for. The plaintiff sold the machinery in the course of its business on condition that it will be fit for the purpose of saw milling. A machine is fit for purpose if it is able to perform the task for which it was acquired, safely and for a reasonable period, before defects appear. The court found that a saw mill should not break down after 11 days of operation and therefore did not meet the standard of the purpose for which it was intended. The court found that as a result of the defect, the defendant was entitled to general damages as a result of the failure of the saw mill being fit for purpose.
Appeal upheld.
Tanzania Sewing Machine Co. Ltd v Njake Enterprises Ltd (Civil Appeal No. 15 of 2016) [2016] TZCA 15; (23 October 2016) Loan Agreement Loan Banking, Finance and Insurance Law Breach of Contract Contract Law Have his cause heard (fair trial) Substantive rights Human Rights Property Substantive rights Human Rights CL IndexThe 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.
Michael Ngaleku Shirma v African Banking Corporation Tanzania Limited (Commercial Case No. 54 of 2016) [2016] TZHCComD 18; (30 January 2016) Special Damages Damages Civil Remedies Breach of Contract Contract Law Lease Leases and tenants Property Law CL IndexThis 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.