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 appellants, employees of the first respondent, appealed a decision against the lower court that dismissed the appellants’ suit claiming wrongful termination.
The court began its consideration of the appeal by assessing the implication of collecting entitlements by the appellants whilst their case was pending, and whether this estopped them from bringing a challenge against their termination. The Supreme Court held that collection of terminal benefits in respect of wrongfully terminated employment would not be a bar to challenging the wrongful termination. If a termination is wrongful then it cannot be remedied by the subsequent act of the injured party. The appellants were therefore held not to be estopped from challenging their termination.
The court held that the main issue for determination was whether employment of the appellants was wrongfully terminated. The sole witness for the appellants stated that there were conditions of service governing their employments, but failed to tender any documentary evidence in support thereof. The onus of proof rests on the appellants to tender the terms and conditions of service; failure to do so had dire consequences for the appellants’ case as it is a vital issue. The court held that at the trial the appellants failed to discharge the onus of proving wrongful termination and how the respondents breached the terms of employment. The appeal was dismissed for lacking merit
Freedom of association – Labour unions – Membership in labour union
Appeals – evidence before trial judge leading to draw inferences and conclusions on the facts of the case
First appellant applied for, and was allotted, a piece of state land under a temporary right of occupancy (TRO), which was non-transferable to third parties. First appellant built a restaurant on the land, which second appellant managed while first appellant lived in the USA. The second appellant was not granted any right of occupancy.
The issues for determination were: whether the trial court made a finding of fact that could only be made after leading evidence; whether the trial court was justified in discrediting or attacking evidence tendered by the appellant that was without objection by the respondent, who also led no evidence to contradict the same; and whether the trial court was justified in refusing to admit the pictures of the restaurant.
The appeal court found that the trial judge properly evaluated the documentary evidence before it and used its evaluation thereof to arrive at its decision. An appellate court may interfere where the trial court fails to evaluate the evidence properly. The court found that it was not in a position to interfere with the views of the trial court.
Issue two was resolved in favour of the respondents for the same considerations and conclusion as issue one. Issue three was decided in favour of the respondents as the evidence was held to be inadmissible because it was not in conformity with the pleadings.
The appeal was without merit and dismissed.
Second respondent was informed of a building for sale by the appellants with a 5% commission to whoever secured a buyer. Second respondent found a buyer but received no payment. He successfully claimed payment in the lower court, which the appellants appealed.
The issue was whether the second respondent was an agent of the appellants and entitled to the commission claimed.
Agency is created when the principal authorises the agent to act on their behalf, and the agent accepts to act on their authority. The appeal court agreed that the second respondent began acting as agent immediately after being given the sale price and rate of commission. The first appellant authorised several agents, including second respondent, to look for a buyer. The ultimate buyer was introduced to the first appellant by second respondent.
At issue was whether the second respondent could act as a commission agent or receive commission. He was not a qualified estate surveyor and valuer, or a member of the Nigerian Institute of Estate Surveyors, Agents and Valuers. Furthermore, a lawyer may not practice as a legal practitioner while engaging in the business of a commission agent. Though the second respondent contravened the latter rule, the court held that this contravention did not vitiate the agency agreement. A party who has benefitted from a contract cannot evade their obligations by relying on an allegation of illegality; illegality must be on the face of it. There was no illegality in the agency agreement.
The appeal was dismissed.
Appeal against the judgment in favour of the respondent for arrear rent with costs. The appeal was brought on two grounds: the lower court erred by ordering the rent payable in British Pounds (GBP); and the trial court erred in holding that the burden of proving non-payment of the rent in GBP rested on the appellant.
The first issue concerned the interpretation and applicability of the Decimal Currency Act (the act) on the mode of payment of the rent, which was fixed by the Deed of lease. Applying literal interpretation, the court concluded that section 1(2) of the Act related only to contracts entered into in Nigerian Pounds. It was not the legislature’s intention to constrict contractors from deciding the terms and manner of payment. Parties to a contract are bound by its terms and conditions, and a court will respect the contract.
Issue two as to who bore the onus of proving the currency of payment post-Decimal Currency Act, was decided in favour of the respondent. The burden of proof generally lies with the plaintiff to establish their case, however this burden is not static. The respondent adduced evidence of non-payment of rent, the burden shifted to the appellant to adduce evidence rebutting this, and in proof of the assertion that regular payments of rent were made. The appellant failed to produce evidence that payment was made, and that it was done in Naira and not GBP.
The appeal was dismissed.
The appellant brought his initial suit against a decision of the main committee of the first respondent suspending him from the Lagos Polo Club. The initial suit was dismissed in its entirety.
The appeal concerned three issues. Issues one and two were decided together, and concerned whether the lower court was correct in holding that the respondents complied with the provisions of the Lagos Polo Club Constitution in suspending the appellant; and whether the main committee of the Club could delegate any part of its disciplinary functions to its Disciplinary Sub-Committee.
Generally, courts will rarely interfere with the decisions of voluntary associations except where rules of natural justice were ignored. At issue was whether the appellant was given a fair hearing, which the court held that he was. The main committee was empowered to discipline its members for misconduct. Furthermore, the main committee was empowered to co-opt other persons to act under its authority. The power to constitute a sub-committee was incidental to the power to co-opt persons. Issues one and two were resolved against the appellant.
Issue three concerned whether the lower court considered all the processes filed by the appellant when arriving at its decision. In determining issues, a court is not bound to list all the material considered. Failure to expressly mention all the different processes does not mean the trial court failed to consider them. The court found against the appellant on this issue.
The appeal was dismissed.
The case related to a declaration of title of a piece of land that was in dispute because both parties claimed ownership.
The court highlighted an appeal seeking to overturn a lower court’s decision must show that the court’s decision was wrong in law, did not take into consideration evidence or made findings in the absence of evidence. In essence a trial court decision can be overturn if it was not based on well-founded reasoning.
Further when suing on behalf a group of people, the party must clearly indicate so and failure to do so may affect that parties’ legal right to sue. Once you have indicated in what capacity you’re instituting a claim, you cannot subsequently change this.
The court in this case upheld and allowed the appeal because the Court of Appeal permitted the appeal that was not based on evidence before it. Further it was a fatality for the defendants to endorse their counterclaim by indicting they were doing so in a representative capacity.
The court considered an application by way of notice on motion for an interlocutory injunction restraining the respondents from enforcing the National Media Regulations pending the court’s determination of the substantive suit. The substantive suit related to declarations that the requirement for prior authorization of consent as well as the criminal sanctions were contrary to the Constitution.
The court confirmed that whereas in public law, a court ought to be slow in granting interlocutory injunction, it still has the power to grant one. This is especially so in exceptional cases where there is a need to restrain enforcement of legislation that is being challenged on substantial grounds. The courts will grant an injunction to avoid irreparable injury being caused by the enforcement of a potentially unconstitutional piece of legislation that is being challenged. On this basis, the application was granted.
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.
The case related to a petroleum agreement between the Ghanaian government and a Norwegian company. The agreement was ratified by Parliament, but the Minister of Energy thereafter refused the company’s assignment of their Petroleum Agreement to its wholly owned local subsidiary. The question was whether Parliament’s permission is required to terminate a resource exploitation transaction, as they ratify it. The rationale for ratification is for transparency, openness and participation in matters involving natural resources but the exercise of checks and balances does not extend to approving termination of agreements that the executive has jurisdiction over. The court held that whereas Parliament ratified these agreements, the act remains an act of the executive and Parliament’s approval is not needed to terminate the agreement.
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 court was called upon to determine who was entitled to ownership and possession of property in dispute between two purchasers. One purchaser claimed the property because they executed a writ of fieri facias (writ of fifa) attaching the property to recover a debt but this was not executed. A writ of fifa is a document issued by the court for the purpose of enforcing a judgment debt by permitting a judgment debtor to have a legal right to seize the losing party’s property to recover the amount due to them
Sometime later another party attended an auction, another purchaser purchased the same piece of property.
The court held that the sale at the auction was illegal because of the principle of nemo dat which provides that the first person to get title is entitled to that property notwithstanding any subsequent sale. Therefore even though the writ of fifa has expired, the party who got judgment get title to the property as judgment debtor.
Litigation was commenced to recover a debt from a company incorporated in Australia that was wholly owned by a Ghanaian company. The High Court granted judgment in favour of the appellant for the amount due. The judgment was appealed because the respondent proposed a scheme of arrangement to reorganise their debts with their creditors. but the appellant subsequently the appellant filed a petition to liquidate the company as it was unable to pay off its debts. The court granted to wind up the company. However, the Court of Appeal granted a stay of execution of the winding-up before the respondent appealed the original decision of the High court to pay the amount due.
The appellant did not succeed with the appeal because they did not prove that the Court of Appeal failed to take relevant matters into consideration, considered irrelevant matters of misapplied the law.
The Supreme Court was called upon to interpret the Constitution to deduce if the Attorney General can represent the Registrar of the High Court in litigation. The court held that because the Attorney General acts on behalf of the state, the Attorney General has the power to represent public officers who are appointed by the President and approved by Parliament. Whereas public officials can choose to be represented by counsel of their own choice, they may refer their cases to the Attorney-General.
However, where representation by the Attorney General compromises the independence of the judiciary or there is a conflict of interest situation, the Attorney-General cannot represent a judicial officer.
In this case there was no evidence the independence of the judiciary was not at risk and the Attorney General could represent him.
The court was called upon to answer whether or not a breach of the constitutional provision on privacy relating to proceedings to remove a Judge renders the contents of a publicized petition to remove the judge null and void. In this case the petition to remove the judge was released to the media. The court held that only when the Chief Justice or investigating committee decides there isn’t a prima facie case against the judge can the impeachment proceedings be brought to an end. The public disclosure of a petition to remove a judge is not a ground to end the process to remove a judge as this can only happen in the two instances outlined previously. When allegations are brought against a judge, they must be investigated and public disclosure of the petition does not negate the need for an investigation.
The plaintiff claimed ownership of a property because he was the sub-lessee of the property and the true owner did not come forward to claim it. The defendant holds the title deeds to the property but the plaintiff continued to argue that he was not the true owner.
The court held that the defendant leased the property to a third party who thereafter sub-leased the property to the plaintiff. As a result the plaintiff could not claim to be owner in possession because he was not truly owner in possession. The defendant satisfied the court and discharged the burden of proving they own the property.
The High Court gave a summary judgment in favour of a party relating to a declaration of title to a house, payment of accumulated rent and an order of ejection. The Court of Appeal overturned the judgment but invoked supervisory jurisdiction to make an order compelling issuing of land title to the interested party.
The court held that the interested party could not apply for the supervisory jurisdiction for a judgment that was overturned – and this was impermissible. A party is not permitted to undermine a decision of an appellate court overturning a decision of the trial court to apply for supervisory jurisdiction when the judgment to be supervised has been set aside. For these reasons the application to set aside the supervisory orders was set aside.
The court considered an application for a declaration on how to interpret an order made by the Supreme Court on the subject of a register of voters. The court provided that a party can apply to clarify a previous decision of the court to make it easier to understand, especially in cases where part of the judgment is ambiguous. The court has inherent jurisdiction to clarify a judgment, but such clarification cannot be used to make a substantive change to the existing decision. An application to clarify a judgment cannot be used to ask the court make the same order again as this would amount to suing a party again for the same cause.
The court in this case clarified the issue of what was meant by ‘delete’ names from the register of voters, but refused to clarify the judgment to the extent that would amount to modifying or altering the substance of the judgment.
The matter involved a dispute concerning the nature and validity of the transaction between the defendant, a government-owned limited liability company, and Karpower. The matter revolved around the interpretation given to the phrase ‘international transaction’ in article 181 of the Constitution, a phrase whose effect is that the transaction required parliamentary approval.
The first question that faced the court concerned jurisdiction. The court relied on ample case law to arrive at the position that the Supreme Court is not a clearing house to assume jurisdiction which otherwise belongs to other lower courts. It noted that jurisdiction would only be exercised where it is manifestly clear and obvious that the cases are deserving.
Substantively, the court then had to consider the legal nature of the defendants in order to ascertain whether they were the alter ego of the government. After scrutinising the relevant transactions, the court reasoned that it was clear that the defendants, as juristic persons, had the capacity to enter into the transactions they entered into with the relevant institutions without seeking parliamentary approval as stipulated in article 181 (5) of the Constitution.
The court concluded that given the established interpretation of ‘international transaction’ and the legal nature of the defendants, the nature of transaction between the first defendants and Karpowership does not constitute an international business transaction with a government. It therefore did not require compliance with article 181 (5) of the Constitution.
The court dismissed the application.
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 matter involve a ruling of contempt of court against the third and fourth respondents for their conduct in attacking the Chief Justice with an accusation of bias.
The court emphasised the importance of judicial independence as enshrined in the Constitution as a necessary element in maintaining judicial dignity and effectiveness, attributes that are crucial in upholding the democratic enterprise. Any attempt to disrespect the courts therefore amounts to an attack on the role of the courts and the community at large.
The court also emphasised the right to criticise the judiciary and its circumspection in exercising its power to charge citizens with contempt. However, should the conduct be of such gross a nature as to indicate a calculated attack, as in the present matter, the court would not refrain from the charge.
The court, however, acknowledged the harsh nature of the summary powers to charge for contempt, powers it accepted required circumspection. Nevertheless, the court considered the need to send a message to remind people to refrain from crossing the line between utilizing their freedom of expression and attacking the dignity of the court. It also invoked the principles of state policy which place duties to the citizenry to ensure the exercise of their freedoms upheld fundamental democratic principles. In the view of the court, the contemnors in question had dismally failed the above and therefore they were sentenced for contempt.
This was a dispute about interpretation of an employment contract. An employee of a church was entitled by virtue of that contract to long service leave, calculated with reference to his ‘basic salary’. The issue was to determine the meaning and scope of the words ‘basic salary’.
The Supreme Court of Justice held that while the lower courts correctly identified this issue, they had incorrectly found that ‘basic salary’ meant the total annual salary that the plaintiff was drawing at the time. The lower courts did not give consideration to the meaning and effect of the term ‘basic salary’ in the ‘conditions of service’ document, which defined ‘basic salary’ as a lower baseline salary amount.
The court held that in dealing with the interpretation of contracts the literal and plain meaning rule must always be applied within the context of the deed being construed and not standing by itself alone. Additionally, the court has a duty to give effect to the intentions of the parties. This being an employment contract, the proper approach of interpretation is to construe the words within the context of the whole document having in mind the scope and object of the document. Interpretations which would ‘render the meaning absurd, incongruous, unreasonable or unintelligible, or that will create hardship or inconvenience’ should be rejected.
The court held that in the context of the document as a whole, and it would be ‘unreasonable and absurd’ to conclude that the intention was to bind the defendant to a meaning of ‘basic salary’ that encompassed the plaintiff’s actual annual salary.
The appeal succeeded in part; the judgments of the High Court and Court of Appeal were set aside.
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.
This case concerns a dispute about land. The applicant sought an order of the Supreme Court to quash a mandamus order granted by the High Court. The applicant argued that the order made by the High Court breached natural justice because he was not served with the application in which the order was made. The Supreme Court held that the audi alteram patem rule, which requires a person to be heard in proceedings wherein a relief is sought that will affect him, must be followed in all circumstances. The evidence, in this case, showed that the applicant was not served, constituting a breach of the audi alteram patem rule. Given this breach of natural justice, the Supreme Court upheld the appeal and quashed the lower court’s order.
In this appeal the applicant contested a decision made by the Court of Appeal not to dismiss an appeal despite the fact that written submissions were submitted after expiry of the 21 day period provided by the Court of Appeal Rules (C.I.19). The applicant argued that the Court of Appeal failed to take into consideration rule 20 (1) and (2) of C.I.19. The Supreme Court held that it can only interfere with the decision if it has been shown that the lower court did not exercise its discretion judicially. The Court of Appeal must have taken rule 20(1) into consideration because it waived the non-compliance with that very rule. Rule 20(2) had already been repealed and was, therefore, no longer applicable. The Supreme Court, therefore, had no reason to doubt that the Court of Appeal exercised its discretion judicially and, consequently, dismissed the appeal.
The Fees and Charges Act (the act) calculated the plaintiff’s rent for five mining leases. The plaintiff challenged the Minister of Finance’s authority to amend the legislation.
Issue one: whether the Administrator of Stool Lands had any role to play in fixing annual ground rents. The court held that the Administrator did not fix the rates, but wrote to demand payment.
Issue two: whether the administrator was part of a review team that recommended the adjustments, amounting to prescribing annual ground rent. The administrator provided an advisory opinion with no legal force.
Issue three: whether the grant of power to the Minister of Finance was unconstitutional. A schedule forms part of an act. Subordinate legislation cannot amend an act; however, this rule is not invariable regarding schedules. Acts may empower another to revise the contents of a schedule, and this power must be expressly conferred by Parliament. It was found that it was.
Issue four: whether or not the Fees and Charges Instruments contravened the act and the Constitution. The Minister of Finance was empowered to amend the schedule in fixing fees and charges; however the inclusion of the administrator in the amended list was inconsistent with the Constitution, and void to the extent of this inclusion
Issue five: whether the power conferred on the Minister of Lands and Natural Resources was transferred to the Minister of Finance. The court held that no such transfer of power occurred.
Issue six: whether the failure by the Minister of Lands and Natural Resources to exercise the power conferred on him in the act violated the Constitution. The Minister of Mines was empowered in terms of the act; however the parties incorrectly cited the Minister of Lands.
The Minister of Mines was ordered to fix the fees and charges under the act.
The dispute emanated from a decision of the appeal court to overturn compensation award given to the appellant by the High Court.
The appellant was offered 6.19 acres of land by the respondent under a lease agreement. The respondent after 10 years was ordered to cede the land leased to the appellant back to its original owners. The respondent took 5 acres from the appellant leaving him with 1.6 acres of the land which was given to him for free. After 11 years the appellant successfully claimed compensation for the 5 acres taken, a decision which was later overturned by the appeal court.
The appellant was now appealing against the decision to overturn the compensation award. He argued that the trial court erred by concluding that the 1.6 acres given to him was compensation. He further contended that there was no evidence to show that as the respondent’s employee he manipulated the system to allocate himself land. The respondent maintained that there was evidence to show that the 1.6 acres allocated to the appellant was compensation and that he manipulated the system to allocate himself large pieces of land.
In deciding the matter, the court held that the appellant was the lessee and not the owner of the land in dispute. He was not entitled to any compensation. It ruled that the 1.6 acres that he received was more than enough compensation. It further ruled that the appeal court never said the appellant manipulated the system. The appeal was thus dismissed.