Commercial Law Index

The appeal arose from the appellant’s contention that the judgment by the Court of Appeal was against the weight of evidence.

The court relied on the rule that the plaintiff in the contest bears the burden of production of evidence and persuasion to ground its assessment of the status of the International Rom (appellant). It reasoned that given the evidence, the true position was that the email which was received from the Chief Compliance Officer of Mauritius was intended to be an official record complying with the Act 772 and was thus relevant and admissible. However, considering the conflicting evidence, the court concluded against placing any probative value to the email and thus dismissed the contention that the company had ceased to exist.

The court also applied the rule in Turquand’s Case, formulated in the case of Royal British Bank v Turquand (1856) 6 EI & BI 327 which has been codified and amended in ss 139-143 of the Companies Act, Act 179 (1963) and common law principles to assess the party the defendants contracted with. It reasoned that since International Rom Mauritius and International Rom Ghana had been regarded as one entity by the first defendants, mistake could not be argued to escape the contract.

Finally, the court assessed the provisioned evidence particularly the cross examination to concluded that the claim of failure to allow for challenge of the evidence lacked merit. In addition, the court also held there was an undertaking to make the payment by the first defendant, a commitment which the first defendant did not honor. It was therefore urged by the court that the defendants pay the outstanding amounts plus interest to the appellant.

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 case considered whether employees who were claiming compensation for loss of employment were ‘permanent employees’ in terms of an employment contract. The case additionally concerns whether the Court of Appeal had misdirected itself with regards to the weight of evidence.

The plaintiffs contended that they were employed by the respondent as permanent employees in terms of an employment contract. The respondent subsequently went into liquidation and the plaintiffs claimed for loss of compensation.

The court held that for a plaintiff to be entitled to benefits as an ex-employee, they should spell out clearly the terms of their employment as contained in their contract of employment and then prove their entitlements under those terms. The plaintiffs assume the burden of persuasion and producing evidence, however, it was clear that they were unable to produce a written agreement which spells out their terms of employment.  The court found that any contract of employment for more than six months which was not in writing was unenforceable.

The plaintiffs had been employed for 10 and 12 years respectively, but failed to obtain letters of appointment. It became apparent that they were only employed for the duration that they were engaged on a particular voyage.

The court found that to be a permanent employee one would need to prove employment through the use of a contract of employment, which was in writing and could be used as evidence to illustrate the terms thereof. In this case, the plaintiffs were only employees when the respondents required their services. Furthermore, the court held that the Court of Appeal had not misdirected itself with regards to the weight of evidence as the plaintiff failed to properly prove their claim.

Appeal dismissed.

In this appeal, the court determined the principles applicable to appeals against concurrent findings.  The court noted that the second appellate court ought to be slow in reversing such findings but may do so if they are not supported by evidence, based on a wrong proposition of law, inconsistent with undisputed evidence and unjustified.

Firstly, the court determined whether the appellant had proved the amount of rent on a balance of probabilities. They applied the rule that for a statement to be admitted as an admission by the opponent, it has to leave no doubt as to such admission and held that the standard was not met by the appellant. Thus, the court conceded with the decision in the prior court that the appellant did not lead evidence in support of his claim of outstanding rent. However, the court found that the appellant proved that he was entitled to an amount that was not pleaded. The court applied rule 7(1) of the Civil Procedure Rules and amended the pleadings to include the amount. Therefore, the court entered judgment for appellant against the second defendant in this respect plus interest.

Secondly, the court distinguished between the application of estoppel as a rule of evidence (to bar a party from denying an intentional representation) and as a rule of substantive law (to rectify an unwritten contract with valuable consideration from promise). Drawing from the above definitions, the court conceded with the court of appeal decision on estoppel.

Accordingly, the appeal was dismissed partly.

The plaintiff/appellant was aggrieved the Court of Appeal’s reduction of a damages award made by the High Court pursuant to its compensation claim for wrongful termination of employment. The Court of Appeal held that the award was excessive on several grounds – a finding that formed the basis of this appeal.

The Supreme Court emphasised that the court’s discretion to award damages must be done so judiciously. That the trial judge’s order was influenced by factors such as the size of the plaintiff’s family, the defendant/respondent’s instituting of a failed prosecution and delays in court proceedings – which the appellant sought in vain to attribute to the respondent –  rendered the extent of the award ill-considered. Moreover, the High Court neglected to provide a terminating point for the computation of the appellant’s salary and allowances, which translated to excessiveness. Guided by the case law, the court fashioned a reasonable award which more closely considered the parties’ situation.

Deviating from the Court of Appeal’s order, the Supreme Court found it was unfair that payment of the appellant’s other employment entitlements was limited to its provident fund. It therefore altered this portion of the below court’s order to reflect that the appellant be paid all earnings, entitlements or remuneration which it was owed for the period of fifteen months after the wrongful dismissal. It similarly reversed the Court of Appeal’s substitution of the High Court’s award of three-months’ salary to one-month’s salary, finding that this reduction was unfair in the absence of any reasoning therefor.

The appeal was upheld in part.

The applicant was seeking a clarification of a court judgement.

The case emanated from a dismissal of an appeal by the first respondent to challenge a decision of the High Court in favour of Fidelity Bank. The plaintiff sought clarification of the judgement. It sought clarification on the nature of interest to paid and why the applicant and the respondent were jointly liable for payment of outstanding loan.

The court held that there was a contract between the applicant and the respondent and it provided that the applicant should obtain a loan from Fidelity Bank (the bank). The bank required an undertaking from both the applicant and the respondent that they are going to be jointly responsible for the repayment of the loan. The court found that the respondent reneged on all payments under the contract in the joint names and thus contributed to the non-payment of the loan, hence its liability.

On interest, the court ruled that the undertaking between the parties bears three different interest rates. It pointed out that the parties in this transaction are governed by their undertakings hence interest is calculable on the terms agreed.

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 applicants applied to the High Court to stay the proceedings in the case and to release the properties attached to them in order that they would add them to other assets of the company to be sold for all depositors of the company to be paid. The High Court however dismissed the application and applicants being aggrieved by the orders made by the court filed an application to the Supreme Court praying for an order of certiorari to quash the decision of the high court.

The main issue being the lawfulness of the grant of leave by the high court to applicants to proceed with their case after the winding up had commenced.

The court held that upon commencement of a winding up only secured creditors are allowed as of right to sue or continue with pending civil proceedings for the realization of their security. Any other person who has a cause of action against a company being wound up cannot sue as of right but may do so only with the prior leave of the high court. Similarly an unsecured creditor who has pending civil proceedings cannot continue with them without leave of the high court. So the applicants in this case who were not secured creditors were within their rights to apply for leave to continue with their case and the judge acted in accordance with law in granting same.

The court dismissed the application.

The dispute centered on whether the decision by the Land Disputes Tribunal (the tribunal) was marred by irregularities due to the absence of proper assessor involvement.

The first question was whether it was necessary to record the opinion of the assessors even when they were in agreement with the chairman of the tribunal. The court asserted that the ‘unclear involvement of assessors in the trial renders such trial a nullity.’ It also stated that it was mandatory for the opinion of the assessors to be on record. It therefore reasoned that there was a serious irregularity in the trial as the assessors had not given their opinion.

Regarding the effect of the change of assessors during the trial the court averred that this was in contravention of section 23(3) of the act as the provision did not contemplate a complete change of all assessors in its latitude.

The above was tied by the fact that the assessors had not been present throughout the whole trial, conduct which resulted in the tribunal not being properly constituted as required by s 23(1) and (2) of the act.

The final question therefore was whether the above could be cured. The court reasoned that the omissions went to the root of the matter and resulted in a failure of justice. It thus concluded that the trial was vitiated by the irregularities and nullified the tribunal’s proceedings.

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.

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. 

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 sued the respondent for the allegedly unpaid balance of his retrenchment package. Proceedings at the High Court were adjourned several times and occurred before multiple presiding officers before a final judge made an order against him.

Noticing irregularities on the record of appeal, the appellate court focused on the competence thereof rather than the merits. The trial judge that made the order had failed to observe the relevant provisions of the Civil Procedure Code by neglecting to place on record the reasons why the matter had fallen unto his lap following several adjournments. The case law on the scope of this rule accounts for its importance in terms of judicial integrity and transparency. Moreover, the decree on record had been duly signed by neither the learned judge, nor the Deputy Registrar, as required by law.

These irregularities led the appellate court to exercise its revisional purview under section 4(2) of the Appellate Jurisdiction Act to quash and set aside the High Court judgment, before remitting the matter to the same forum for a competent judge to adjudicate the matter de novo (afresh). No order was made as to costs.