Commercial Law Index

The case before the appellate court concerned an appeal against the ruling of the High Court where the appellant’s case was dismissed. In the High Court, the appellant sought to challenge the jurisdiction of the High Court to hear the matter. 

The court considered whether the non-inclusion of the word ‘council’ to the names of the respondents was a misnomer and whether the High Court was justified in dismissing the appellant’s preliminary objection.

The court held that the non-inclusion of the word ‘council’ was indeed a misnomer which stood to be amended with the court’s discretion. Once amended, it gave the High Court the right to dismiss the appellant’s preliminary objection.

The court relied on legislation establishing the respondents in order to identify their correct names and the court stated that no other names could have been intended than those put forward by the respondents. The court was of the view that the appellant was being unnecessarily technical which led to an incorrect legal view.

As a result, the appeal was dismissed, and the ruling of the High Court was affirmed. Costs were ordered in favour of the respondents.

This was an appeal of the decision of a lower court to grant the respondents leave to amend their writ of summons in terms of substituting the 1st to the 12th plaintiffs with their personal representatives and guardians. The writ was taken out in the names of the deceased victims of the fire incident occasioned by the appellant. The appellant, via a notice of preliminary objection challenged the jurisdiction of the court to hear the application having been brought by deceased persons. This preliminary objection was not dealt with by the lower court in its decision.

The court held that the lower court committed a serious error when it did not consider a preliminary objection which challenged the jurisdiction of the court. A court must always establish that it has jurisdiction before it deals with any matter such as the merits of an amendment.

The court further held that the law recognizes two categories of persons who can sue and be sued.  They are natural persons with life, mind and brain; and other bodies or institutions having juristic personality. 

Accordingly, a dead person ceases to have legal personality and can neither sue nor be sued. 

Therefore if the original writ of summons and initiating process are void, the court lacks jurisdiction to entertain or enter judgment in the matter. Based on the above principles, the court upheld the appeal and struct out the claim for want of jurisdiction.

The dispute related to dishonored cheques that were issued for payment of supplies. After several cheques were dishonored, the respondents went to the premises of the appellant to recover the remaining products. The trial court award general, special and nominal damages. However, the Court of Appeal reduced the general damages. They also held that nominal damages should not be awarded when there was a failure to prove special damages.

The court dealt with three issues relating to a potential error of law when the Court of Appeal substituted their judgment for that of the trial High Court, failure by the Court of Appeal to exercise their discretion judicially and issuing a judgment against the weight of evidence.

The Supreme Court held that the Court of Appeal could not set aside the trial High Court decision when there was no appeal against the relief granted by the High Court or challenge against the findings made. The Court of Appeal can only set aside aspects of the judgment that have been appeal against. The Court of Appeal can only reverse a trial court if the trial court made orders that were oppressive, excessive or contrary to the law.

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.