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 matter involved an appeal against the decision of the High Court, a decision the appellant contends was arrived at under error of procedural law.
The main issue was whether the decision of the lower court was defective for its failure to afford the appellant her right to be heard. The court relied on case law to establish that it is necessary to afford a party a fair hearing upon making an adverse decision. It accepted the position in Scan - Tan Tours Ltd v the Registered Trustee of the Catholic Diocese of Mbulu Civil Appeal No. 78 of 2012 that when an issue that is pivotal to the whole case is introduced the parties should be given a chance to address the matter before the court. In addition, the court relied on the Rukwa Auto Parts and Transport Ltd v Jestina George Mwakyoma Civil Appeal No. 45 and Abbas Sherally and Another v Abdul Fazalboy Civil Application No. 33 of 2002 cases as authority for the proposition that failure to allow for the right to be heard constituted a breach of natural justice, a fundamental constitutional right.
The court reasoned that the trial court had failed to uphold the appellant’s right to be heard when it arrived at its decision and therefore violated a constitutional right. Hence, the court concluded that the decision could not be allowed and consequently nullified the impugned decision.
The 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.
Aggrieved by a High Court decision concerning a dispute with the respondent, the applicant sought leave to escalate the matter to the Court of Appeal. The High Court summarily rejected the application without notice to the parties and prior to the set-down date of the hearing.
The appellate court was wholly convinced by the applicant’s main contention: that the High Court judgment was impugnable because the parties had not yet been heard at the time it was given. Outlining the basic tenets of the audi alterem partem principle, the court affirmed that courts are obligated to afford the parties a full hearing before determining the disputed matter on merit.
The appellate court invoked its revisional powers under section 4(3) of the Appellate Jurisdiction Act, setting aside the High Court’s decision and directing it to rehear the application.
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.