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 appeal was against a garnishee order attaching a sum of approximately N97 million belonging to the appellant granted by the lower court. The appeal was based on the claim that the garnishee order was made without hearing the appellants’ earlier motion for a of stay execution. This, the appellants argued, was a violation of their right to a fair trial.
The respondent raised a preliminary objection that the appellant had no standing because it was judgement debtor, not the garnishee. It further argued that the appellants had not obtained leave to appeal.
The appellants responded by pointing out that they were respondents to the garnishee application, and that the funds that were to be attached belonged to them. Thus, they had locus standi (the standing and right to file this appeal).
The court held that it is only the garnishee that can appeal an order made by the court. It ruled that garnishee proceedings are strictly between the creditor and the garnishee. It found that the appellant lacked locus standi to file the appeal and the appeal was dismissed.
This was an appeal against a garnishee order granted by the court. The appellant contended that the garnishee proceedings were null and void because the first respondent did not disclose that the second respondent fell within the jurisdiction of the lower court. Further, the appellant argued that there was abuse of court process because the garnishee order was made after the appellant was granted leave to appeal.
The respondent argued that the appellant was not a party to the garnishee proceeding and cannot challenge the procedure.
In deciding the matter, the court held that the question of the judgement creditor establishing that the garnishee was within jurisdiction was not for the judgement debtor to determine but the court. It found that the appellants were not parties to the garnishee proceedings and that an appeal does not operate as a stay of execution. The appeal was thus dismissed.
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.