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.
This case concerned the reversal of a judgment handed down in this court by a single judge in terms of article 134(b) of the 1992 Constitution. Furthermore, the order handed down was non-executable and that the court erred in ordering the suspension of a non-executable order. Article 134 (b) prescribes what a three-judge panel may do after hearing an application brought by a party who is aggrieved with the decision of a single judge. The court considered whether a three-judge panel should apply the conditions applicable by an appeal or a review or a combination of the two. It was found that an application of this nature couldn’t be treated as an appeal since the full record of appeal will not have been placed before the court. It was therefore found that it should be treated as a special review, considering all factors and merits of the case. Therefore, all rules on review should largely apply. The court found that where there is no executable order from the decision of the court below, this court cannot make an order to stay execution. The court found that the decision by the single judge did not disclose what factors were taken into consideration to enable him to conclude that it was fair to grant the application. Thus, the record did not disclose any special circumstances. Application granted.
The applicant commenced litigation but it was soon discovered that his legal representative did not have a valid solicitor’s licence. In an earlier Supreme Court decision in the same matter (Korboe v Amosa (J4/56/2014) GHASC 10 (21 April 2016) it was held that a lawyer cannot practice law for as long as they do not have a licence, and any process to commence court proceedings are null and void. The applicant prayed for review of that judgment because it caused injustice and there is no requirement that a person engaging or consulting a lawyer must be satisfied that he must have a valid licence. The court reiterated that Supreme Court decisions can only be reviewed if there are exceptional circumstances or there is critical evidence that was not available at the time of the appeal and not reasonably discovered. In other words, there should have been an error of law on the part of the court. In this case, the court held that even though the applicant was not aware of the lawyer not having a licence and the law doesn’t require him to inquire, the fact that the lawyer endorses the writ and court process renders it legally incomplete and null. It was held that the applicant failed to show an error of law or miscarriage of justice.
The Supreme Court was approached to review a clarificatory decision previously delivered by the Supreme Court’s ordinary bench.
First the court considered whether it had jurisdiction to review its previous decision. It relied on rule 54 of Supreme Court Rules 1996 (C.I 16) which grants it the power to review decisions under certain circumstances. It rejected the argument that a clarificatory decision is not a decision under rule 54. The court therefore concluded that it had the power to review its previous decision.
The court then had to consider whether exceptional circumstances existed and have resulted in miscarriage of justice. It held that where a decision fails to consider a statute, case law, fundamental principle or procedure, exceptional circumstances which justify review of the decision exist. In this case, the clarificatory decision was based on a repealed statute and failed to consider the applicable statutory provisions. Consequently, court reviewed and rectified its previous decision to align it with the correct statutory provisions on the computation of interest on judgement debts.
This was an application for a review of the unanimous judgment of the ordinary bench of the Supreme Court which allowed an appeal filed by the respondents, in holding that failure to name foreign beneficiaries (per order 2 r. 4(2) of the Civil Procedure Rules) rendered the application void.
The court determined whether the application had passed the threshold of a review application. They applied the rule that review jurisdiction is not meant to be resorted to as an emotional reaction to an unfavorable judgment. In making the holding, the court considered the effect of noncompliance and held that the decision of the ordinary bench was not made through lack of care or misapplication of well-established case law. Accordingly, the court held that the circumstances of the case did not satisfy the requirements for review and dismissed the application. However, the dissent judgment faulted the decision to penalize parties on account of procedural blunders especially when the blunders can be easily cured by amendment.