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 case considered the following issues, being (1) whether the lower court was right when it struck out the appellants notice of appeal on the ground of non-payment of filing fees; (2) whether the lower court was rights when it held that the witness statement constituted evidence sufficient to grant default judgment; (3) whether the lower court awarded a double compensation in respect of the same alleged loss; and (4) whether the lower court’s findings with respect to the award for special damages is competent.
The court held that an appeal is not filed unless the appropriate filing fees are paid. However, the fact that the registry failed to collect the filing fees should not be to the detriment of a litigant. Therefore, the lower court erred in striking out the notice of appeal on the ground of non-payment of the filing fees, as the appellant was not ordered to satisfy the filing fees. On the issue of the witness statement, the court found that the evidence to support a default judgment can be oral or documentary. Thus, judgment could be entered into in default based on the statement of claim, or a witness statement. On the issue of damages, the court held that the principle of assessment of damages is to restore the plaintiff to the position in which he would have been if the breach did not occur. The court found that a party cannot be awarded both special and general damages for the same set of fact. The court confirmed that the damages awarded amounted to a double compensation.
Appeal succeeds in part.
A preliminary objection by the respondent set out to expose the lack of due diligence on the part of the appellant. The respondent’s claim was that the appellant’s records were fundamentally defective and incompetent. This was because the records of the appellant were issued signed by "N. Nwanodi & Co," (which is not a legal practitioner recognized by law in Nigeria) instead of counsel’s actual name.
The counsel for appellant stated that the habit of legal practitioners' merely signing court processes in their firm's name without indicating their actual name has been allowed by this court in many cases. Thus, it was an over-adherence to technicality to annul the process improperly filed.
The respondent sought this court to employ purposive interpretation of sections 2(1) and 24 of the Legal Practitioners Act (the act) that would lead to the conclusion that the record filed was indeed fundamentally defective.
This court upheld the preliminary objection of the respondent. It held that the appellant's' notice of appeal was fundamentally defective. It concluded that the purpose of sections 2(1) and 24 of the act was to ensure accountability on the part of a legal practitioner who signs court processes.
In this case, the court considered whether a writ of summons issued for more than 12 months and not served within that period can be renewed.
The court held that pursuant to order 5 rule 6 a writ has a life span of 12 months. It follows that an application for renewal must be made to the court before the expiration of the 12 months on the grounds that the defendant had not been served or for another good reason.
The court held that a writ is regarded as void where the expiration of the period of 12 months prescribed. An application for renewal of a writ can be made before the expiration of the 12 month period of issuance of a writ and after. Although order 5 rule 6 is a specific provision for renewal of a writ which is still in force, order 47 rule 3 provides for cases where the period of its effectiveness had expired and the two provisions must be read together.
In this case, the court had difficulty ascertaining reasons to jusitfy the exercise of discretion to renew the writ which had remained unserved after 12 months. The application of the appellant in the court below was found to be without merit.
The court dismissed the appeal.
In this case, the appellant protested the total absence of any service of the processes and claimed ignorance of the proceedings at the lower court. This case illustrates the essentiality of service of court process.
The court considered whether the appellant had been duly served with the notice of appeal, other processes filed by the respondent at the lower court and also the hearing notices.
The court followed the principle provided in Ihedioha v Okorocha Appeal No. SC. 660/2015 (unreported, delivered on 29 October 2015) where it was held that service is an important aspect of judicial process. It was held that failure to serve a named party with court process offends section 36(1) of the Constitution.
The court also took into account the provision of order 2 rule 6 of the Court of Appeal Rules, which stipulates that it is mandatory for the service of the notice of appeal on a respondent to be personal.
The court held that the validity of the originating processes in a proceeding before a court was fundamental because the competence of the proceeding is a condition sine qua non (an essential condition) to the legitimacy of any suit. The court held that there was a lack of certainty that the appellant was served with any process in accordance with practice and procedure of the rules of court.
The court upheld the appeal with no costs.
The matter involved an application for extension of time of appeal against a lower court decision granted against the applicant.
The main issue was whether the applicant had shown cause to justify the granting of the extension. The court noted that the length of the duration of the delay in bringing an application for extension is immaterial provided there are good reasons to justify it. In its engagement with the law, the court emphasised the role of judicial discretion in assessing the efficacy of granting the extension. It stated that for this discretion to be exercised the applicant had to show good and substantial reasons for failure to initially make the appeal. These could be a rule, lack of means, mistake or accident. The other inseparable twin leg was for the applicant to show prima facie good cause why the appeal should be heard.
In assessing whether the contemplation of an out of court settlement as reason for delay was a substantial enough reason, the court cited the Supreme Court judgment of Ikenta Best Ltd v AG Rivers State (2008) 2 SCNJ 152 to establish that the reason would not meet muster. The court thus concluded that the application did not meet the first condition for granting an extension and therefore dismissed the application for lacking merit.
The matter involves an application for an extension of the period of appeal by applicant against a lower court decision.
The main issue was whether the applicant, after consideration of the interests of justice and fair hearing, is entitled to an extension of the period of appeal. Starting from the point that the execution of a judgment does not foreclose the aggrieved party’s right of appeal, the court stated that the applicant must show good and substantial reasons for the delay in appeal, which can be rooted in a rule, lack of means, mistake or accident and, prima facie good cause why the application should be heard. Whilst the first leg requires a satisfactory justification, the second leg only requires one to show that the grounds of appeal are arguable. It is upon satisfaction of both the above that the court will use its discretion to grant the application.
As the applicant’s sole reason was that the delay stemmed from a desire to explore an out of court settlement option, the court followed the Supreme Court decision in Ikenta Best (Nig.) Ltd v AG Rivers State (2008) 2 SCNJ 152 to arrive at the position that the applicant’s reason could not be regarded as a good and substantial reason for delay in filing an appeal. The court thus held the applicant had failed to justify why the extension should be granted and therefore dismissed the application.
The case concerned an appeal of the High Court’s judgment regarding ownership of a house and the relevance of legislation relating to public officers in so far as the case was concerned.
The court considered whether the case before the High Court was a land matter and whether legislation relating to public officers was applicable to the case.
The court held that the case was indeed a land matter and that legislation relating to public officers that bars claims against public officers was not applicable to the case.
The court examined legislation and previous judgments and concluded that the legislation relating to public officers that barred claims against public officers due to prescription was not applicable to the case in the High Court because it was a land matter. The court stated that issues relating to land recovery, breach of contract and claims for work done were some of the exceptions to the application of the statute that barred claims against public officers. The court stated that since the subject matter of the case before the High Court concerned a house, it meant that the matter related to the recovery or retention of land or property.
Consequently, the appeal succeeded, the ruling of the High Court set aside, and the matter was remitted to the High Court to be heard afresh.
The appellant brought an appeal against the judgement of the High Court, where the lower court dismissed the appellant’s suit on grounds that the claim had prescribed.
The court considered whether the appellant’s right to a fair hearing could be determined despite having failed to initiate its case prior to it prescribing and whether the High Court correctly dismissed the appellant’s case due to prescription.
The court held that the appellant’s right to a fair hearing could not be determined under the circumstances. The court also held that the High Court incorrectly dismissed the appellant’s case without considering important aspects.
Regarding the right to a fair hearing; the court was of the view that since the appellant initiated their case by writ of summons for a declaration against the respondent, it was not an application for the enforcement of a fundamental right and it stood to be affected by the operation of a statute including any limitations the statute could have had. Furthermore, the court issued that the High Court ought to have made an inquiry as to the definition of a ‘public officer’ as used in the statute and if there were any exceptions to the statute that prescribes claims against public officers after three months. The omission by the High Court was held to be an error.
The appeal was successful, and the judgment of the High Court was set aside. Court ordered the case to be heardafresh by the High Court. No costs were ordered.
The appellant claimed that a letter in dispute was not a contract but a proposal which outlined the services the respondent intended to render and the billing details. The court considered whether the statement of claim by the respondent disclosed a reasonable cause of action based on a binding contract. The other issue was whether the costs granted in the lower court were justifiable.
The court held that there must be a cause of action cognizable in law. In that light, an action founded on a contract must disclose the cause of action and court must restrict itself to the averments in the statement of claim. The court also held that costs follow the events and are compensatory in the court's discretion.
The court did not determine the existence of the contract because a valid and enforceable contract is a substantive issue that should be determined at trial. The court also found that since the requisite factual elements were present in the statement of claim, a cause of action existed despite weaknesses and unlikelihood of success of the case. The court also found that the trial court awarded the costs reasonably and by the law.
Accordingly, the court dismissed the appeal.
The court dealt with an application for an extension of time to appeal. The court reiterated the test that must be satisfied for an application for extension of time. The applicant must file an affidavit showing good and substantial reasons for the failure to appeal within time; and propose grounds of appeal that good cause why the appeal should be heard. The court held that the applicant had shown both good and substantial reasons as to why he failed to file appeal with the correct framework and proposed adequate grounds for appeal.
This case concerns liability for damage caused to a vessel.
The court considered whether the trial court had jurisdiction over the second appellant which was only served indirectly. The court held that where a party does not object to any irregularity or invalidity in the service of process on him before
The trial court, he waives his right. In this case the second appellant, then defendant, did not object. Consequently, the court found that the trial court did indeed have jurisdiction.
The second ground of appeal was declared incompetent.
The court also considered whether the trial court had taken into account all evidence. It held that where a trial court unquestionably evaluates the evidence adduced and appraises the facts, it is not the business of the appellate court to substitute it is own view. The court was satisfied that the trial court took all evidence into account, although it was not explicitly referred to in the judgement. Consequently, the court decided against the appellants.
The court finally considered whether the negligence precludes the right to limit liability. It held that the ship master is the alter ego of the vessel on behalf of the owner. Consequently, the owner, together with the other appellants, was held jointly and severally liable.
The appeal was dismissed.
The court considered whether the appellants were necessary parties in the suit, and what is the procedure to determine a reasonable cause of action.
The court held that a necessary party is one who is bound by the result of an action. Further held that cause of action is the facts which when proved entitle a plaintiff to a remedy against the defendant and the procedure thereof is showing that the statement of claim contained facts which if proved plaintiffs would succeed.
The court found that the appellants had made a premature application which supported the respondent’s contention that there is a reasonable cause of action, and that the second appellant is a necessary party to the proceedings.
The court accordingly dismissed the appeal and costs were awarded to the respondent.
The key issues in this appeal were due compliance with time set down by the rules of court, and the principle of the audi alteram partem rule (right to be heard).
The court considered whether the Court of Appeal erred in disregarding the fifth respondent’s non-compliance of time set down for filing statement of defence. The court noted that this was caused by the ambiguous order by the Court of Appeal and confusion in the registry. Therefore, this and other grounds relating to case management directions by the court of appeal were dismissed.
The court also considered whether the court of appeal’s finding that the fifth respondent’s right to be heard was breached, was erroneous. The court affirmed the decision by the court of appeal and held that it lacked jurisdiction to proceed against a party who was not served or notified of a hearing date.
Accordingly, the appeal was dismissed and the court ordered the case be remitted to the High Court to be heard on its merits.
The court was called upon to review a decision of the Court of Appeal that held that a lawyer without a valid licence to practice cannot practice law nor prepare any court process. The court below held that any process originated by a lawyer without a licence is null. The majority decision of the court held that where a lawyer endorses a writ and court process, but he did not have a licence at the time, he cannot be said to be functioning as a lawyer and not capable of endorsing the court process. A litigant who fails to verify the legal capacity of is lawyer cannot claim miscarriage of justice because the writ endorsed by an unlicensed practitioner is without legal effect.
In this case the appellant sought a reversal of an order made by the Court of Appeal overturning the lower court’s judgement. The appellant argued that the Court of Appeal had no authority to consider the appeal, because it was improperly constituted as it was filed out of time.
The Supreme Court considered whether the Court of Appeal (a) had jurisdiction over the matter despite the delayed filing of the appeal and (b) whether the appeal had merit to succeed.
The Supreme Court held that time limitations can be extended under certain circumstances and at the discretion of the court. In this case, however, the defendant (applicant before the Court of Appeal) did not provide any reasons for his delay nor a defence to the claim that the appeal was filed late. Consequently, the Court of Appeal had no jurisdiction to determine the merits of the appeal. The Supreme Court set the judgement aside and restored the High Court judgement.
The appeal turned on whether the plaintiff’s action in the trial court was statute barred. The plaintiff claimed that he owned a plot of land that he later transferred to a company, which was erroneously confiscated by the government, and occupied by the fifth defendant. It was argued, however, that the plaintiff acquiesced to the unlawful occupation of the land.
The plaintiff argued that the land was never transferred to the state, and the plaintiff remained owner. This meant that the government could not transfer ownership in the land to another as it still belonged to the plaintiff, who had not acquiesced in the matter.
The court held that there was uncontroverted evidence that the plot was transferred from the company to Gold Coast Motors as early as 1991, of which the plaintiff was aware. There was nothing preventing the plaintiff challenging the presence of Gold Coast Motors or the fifth defendant. The court held that Gold Coast Motors was in adverse possession since 1991, and fifth defendants continued such when they purchased the plot. Adverse possession is open, visible and unchallenged, giving notice to an owner that someone is asserting a claim adverse to the owner’s right of ownership. Gold Coast Motors had exercised rights inconsistent with the plaintiff’s since 1991, and later sold the plot to the fifth defendant who continued the chain of adverse possession. Neither recognized the title of the plaintiff since 1991, of which the plaintiff was aware but failed to challenge.
The appeal was dismissed.
The matter involved an application to extend the time period of filing an appeal against an alleged illegal decision of the High Court.
The court began by reiterating that the decision to grant an application for extension is a discretionary power. This discretionary power, however, is judicial in nature and must be confined to the rules of reason and justice. It is also required all relevant factors are considered.
Applying the above to assess the applicant’s reason that the delay stemmed from ignorance of procedure, the court regarded the reasons as insufficient. This was predicated on the case law position that ignorance of law was not a good cause for an extension.
The court also considered the question of the legality of the impugned decision as a possible reason for an extension. It relied on the decision of Lyamuya Construction Company Ltd v Board of Registered Trustees of Young Women's Christian Association of Tanzania Civil Application No. 2 of 2010 which stated that a point of law must be of sufficient importance and apparent on the face of the record to compel the court to allow for an extension. The court thus reasoned that the alleged illegality was not apparent on the face of the decision. Hence, it concluded that since it would require a long-drawn process to decipher the illegalities, illegality was not a sufficient cause for granting an extension.
In view of Rule 10 of the Tanzania Court of Appeal Rules, the applicant had to display good cause for a two-year delay in seeking to file an application for leave to appeal. Counsel for the respondents contended that two years was an unacceptably long deferment and that the applicant ought to have applied directly to the appellate court for leave within two weeks after the High Court rejected the application for leave to appeal. It was submitted that the applicant was required to account for each day of the delay-period, which he had not done.
The court, on the other hand, found that the many applications with which the applicant had been busy during the two-year period – albeit fruitless – offered some explanation for the delay. It found that as the respondent was still in possession of the property which formed the subject-matter of the dispute, no prejudice would be caused to it by permitting an application for leave to appeal. Moreover, the grounds that the applicant intended to raise – illegality and fraud – were of such import that they ought to be given an opportunity for airing before the court.
The application was granted.
The appellant appealed the decision of the trial court to rely on an affidavit of a court process server, having held that service was properly done. The prime issue for determination was whether the appeal was meritorious.
Order V Rule 16 of the Civil Procedure Code provides that where the serving officer delivers or tenders a copy of summons to the defendant personally or to an agent or other person on his behalf he shall require that person to sign an acknowledgement of service, if refuses to sign the acknowledgement the serving officer shall leave a copy thereof with him and return the original together with an affidavit stating that the person refused to sign the acknowledgement) that he left a copy of the summons with such person and the name and address of the person (if any), by whom the person on whom the summons was served was identified.
The court held that these specifications were not indicated in the process server's affidavit and the trial court never bothered to establish and ascertain if the service was properly done to the appellant to accord her the right to be heard.
The decision of the trial court giving rise to this appeal could not be allowed to stand on account of being arrived at in violation of the constitutional right to be heard. In the result the appeal was granted.
The applicant filed an application for correction of arithmetical error from a consent settlement order. The respondent argued that a party seeking to have an arithmetical or clerical error corrected as it were in this application must do so within sixty days from the date of the decree sought to be corrected.
The question for determination by the court in this application was whether that power could be exercised at any time. To answer the question the court relied on the court of appeal judgment where it was held that "we are satisfied that the phrase 'at any time means just that at anytime' subject to the rights of the parties, there should be no point in limiting the time in which to correct such innocuous mistakes or errors which are merely clerical or arithmetical with absolutely no effect on the substance of the judgment. Hence if what was sought in Misc. Civil Application No. 57 of 1993 was merely to correct clerical or arithmetical mistakes arising from an accidental slip or omission; we agree that such correction can be made at any time subject to the rights of the parties”.
The court then concluded that the phrase ‘at any time’ was not be construed to extend beyond the period after a decree is fully satisfied.
The application was therefore dismissed.
The issues for determination were whether this suit was time barred and whether the suit was bad in law for being in contravention of s 6 (2) of the Government Proceedings Act [Cap.5 R.E. 2002].
Section 6(2) of the Government Proceedings Act states that ‘no suit against the government shall be instituted, and heard unless the claimant previously submits to the government minister, department or officer concerned a notice of not less than ninety days of his intention to sue the government, specifying the basis of his claim against the government, and he shall send a copy of his claim to the Attorney-General.’
The court held that in determining the question of limitation, two principles must be considered. In the first place, the court must look at the whole suit, including the reliefs sought, and see if the suit combines more than one claim based on different causes of action as one of them may be found to be time barred while the others may not. In such circumstances, it is not proper to dismiss the whole suit as time barred. Second, the court, in interpreting the provisions of a law, should read those provisions in their context as a whole. Single sections should not be read or interpreted in isolation.
The court found that the suit against the government, having been prematurely instituted before complying with the mandatory provisions of section 6 (2) of the Government Proceedings Act, was bad in law and incompetent. The suit was dismissed.
This case concerned a dispute between the parties which had previously resulted in the matter being referred to arbitration and an award being handed down. The court considered an application to set aside that award. The respondents made a preliminary objection to this application on three grounds: (1) that the petition could not be heard as the filing fees had not been paid, (2) the application was time-barred, and (3) the failure of the applicant to adduce evidence of the arbitration award.
On the first issue, the respondent contended that as a non-government entity, the failure to pay filing fees renders the applicant’s petition liable to be struck out. However, the court considered the rule that a government party is exempt from making payment of filing fees. In determining who is a ‘government’ party, the court considered that this status extends to local government. Accordingly the applicant is exempt from paying filing fees.
On the issue of the application being time-barred, the court considered the argument that the time within which to institute action started running from the date of publication of the award. The court found that the time for challenging an award starts to run from the day the said award is filed in court for the purpose of registration and adoption. Furthermore, the period of limitation for filing an award without intervention is 6 months, but the time for challenging the same should be brought within 60 days from the date it is filed in court for registration and adoption.
On the third issue (the adduction of the arbitral award), the court considered that it was not properly a preliminary objection per the test articulated in Mukisa Biscuit Manufacturing Ltd v Westend Distributions  EA 696. The question of whether additional evidence ought to have been adduced is not amenable to treatment as a preliminary point of law.
Accordingly, all three preliminary objections were overruled.
After the failure of mediation between the parties to a dispute, the matter proceeded to litigation. At a certain point, witness statements were to be filed to be filed. The applicant was meant to submit four witness statements but only filed one of them. The applicant thereafter requested an extension of time, citing difficulty obtaining the relevant name from the Ministry of Lands. The court held that the court has the discretion to grant or deny an extension of time, but that the applicant must have a sufficient reason for requesting the extension. The court granted the application because it was clear that the witness statements could not be obtained and filed with the permitted timeframe due to the delay in receiving the names.
The applicants applied for an extension of time to give a notice of intention to appeal a judgment handed down in 2012. The applicants had previously applied for an extension in 2015, but this was struck out, giving rise to the following application.
The applicants contended that the previous application was not heard on merit, and as a result the court had jurisdiction to hear the matter.
The court found that the plain language of s 11 of the Appellate Jurisdiction Act confers a discretion on the court to grant an extension of time. The discretion must be judiciously exercised after taking into account the circumstances of the case, whether the applicant acted prudently and without delay. On perusing the court record, the court found that the applicants filed a notice of appeal within 30 days of the 2012 decision, but the appeal was struck out in December 2014. The time for filing another proper notice had expired. The court found that the applicants were concerned with their appeal in 2012 until it was struck out in 2014. The fact that the requisite time within which to issue a notice of appeal had expired while they were pursuing their appeal was reasonable and sufficient cause to grant an extension of time for giving notice of an appeal.
The application for extension of time was granted, and notice was to be filed within 14 days of the date of the ruling.