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Citation
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Judgment date
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| April 2020 |
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Reported
Review dismissed: arbitrator lacked jurisdiction because parties skipped contractual adjudication; each party bears own costs.
Arbitration law – jurisdiction – arbitrator lacked jurisdiction where contractual pre-arbitration adjudication was not pursued. Contract law – dispute resolution clause – Clause 24.1 construed to apply by necessary implication to contractor–employer disputes. Civil procedure – review – manifest error on face of record and misapprehension of fact/law; appellate review jurisdiction limited and not for re-arguing cases. Court of Appeal Rules – Rule 66(5) – "as far as practicable" allows practical panel composition.
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20 April 2020 |
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The appellant's unauthenticated, contradictory supplementary record rendered the appeal incompetent and it was struck out with costs.
Civil procedure – record of appeal – supplementary record – requirement for certificate of correctness and Registrar's letter (Rule 96(5), Rule 99) – contradictions between main and supplementary records – Rule 96(8) bars further supplementary filings – overriding-objective cannot cure defects going to root of appeal.
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16 April 2020 |
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Revision cannot substitute for an appeal; refusal of leave to appeal does not justify revision.
Appellate and revisional jurisdiction; revision not available as alternative to appeal; revisional jurisdiction only in exceptional circumstances (appellate process blocked); refusal of leave to appeal does not amount to blocking the appellate process.
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15 April 2020 |
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A conviction based on a charge that cites the wrong section and omits essential particulars is incurably defective and must be quashed.
Criminal procedure – defective charge sheet – wrong statutory provision cited (section 287 cited instead of section 287A for armed robbery); omission of essential particulars (person to whom threat directed); mandatory requirements of sections 132 and 135(a)(ii) CPA; incurable defects not remedied by section 388 CPA or overriding objective (s.3A AJA); nullification of proceedings, quashing of conviction and sentence.
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15 April 2020 |
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Appeals against ex parte judgments are incompetent unless the appellant first applies to set aside the judgment in the trial court.
Civil procedure — Ex parte judgment — Requirement to apply to trial court to set aside under Order IX r.13 CPC before appealing — AJA s.5(1)(a) does not displace procedural remedies — Overriding objective cannot cure failure to exhaust remedies — Appeal struck out as incompetent.
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15 April 2020 |
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A wrongly dated decree renders an appeal incompetent and cannot be cured by revisional power or overriding‑objective arguments.
Civil procedure — Appeal — Record of appeal — Requirement under rule 96(1)(h) for a valid decree matching judgment date (Order XX r.7 CPC). Court of Appeal Rules r.96(7) & r.96(8) — lodging supplementary record and prohibition of further applications. Revisional jurisdiction — limits: appellate court cannot correct a non‑existent decree under s.4(2) AJA / s.96 CPC. Overriding objective — cannot override mandatory procedural requirements.
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15 April 2020 |
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Extension of time denied where applicant failed to account for delay and show arguable grounds for review.
Extension of time — Rule 10 — good cause requires accounting for each day of delay; Technical delay distinguished from actual delay; Review preconditions — Rule 66(1) — must show manifest error, denial of hearing, nullity, lack of jurisdiction or illegality/fraud/perjury; Pleading and evidential requirements for alleging illegality or denial of hearing; Admissibility/expunction of exhibits and need for arguable grounds at extension stage.
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10 April 2020 |
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Reported
Judgment pronounced in chambers without notice violates Order XX r.1 CPC and is inoperative; Court ordered re‑pronouncement on notice.
Civil procedure — Order XX r.1 Civil Procedure Code — Pronouncement of judgment in open court with notice — Judgment pronounced in chambers without notice is inoperative — No valid judgment or appeal — Revision under s.4(3) Appellate Jurisdiction Act — Nullity and direction to High Court to pronounce judgment on notice.
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9 April 2020 |
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Conviction quashed where defective charge and unsafe identification evidence meant guilt was not proved beyond reasonable doubt.
Criminal law – Evidence – Visual identification at night – weakest form of evidence; necessity for conditions favouring correct identification and earliest opportunity naming. Criminal procedure – Sufficiency and correctness of charge; description of offence and statutory citation under CPA s135(a)(ii); incurable defects under s388(1). Gang-rape versus single accused rape – variance may prejudice accused. Second appeal – interference with concurrent findings where misdirection or unsafe verdict.
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9 April 2020 |
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Revisional jurisdiction cannot substitute for an appeal; refusal of leave does not block the appellate process.
Appellate Jurisdiction Act s.4(3) – Revisional jurisdiction vs appellate jurisdiction – Revision not available as alternative to appeal except where appellate route is judicially blocked – Refusal of leave to appeal does not amount to blocking.
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9 April 2020 |
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Reported
Lender’s failure to obtain the spouse’s mandatory consent rendered the subsequent mortgage and sale of the matrimonial home void.
Land law – mortgage of matrimonial home – definition of matrimonial home; spouse’s consent mandatory under s114(1)(a) and s161(3) of the Land Act; mortgagee’s duty to take reasonable steps to ascertain and obtain spouse’s consent; failure to obtain consent renders subsequent mortgage and sale void.
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8 April 2020 |
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Second appeal dismissed: new complaint about unread assessors' opinions not entertained; burden on fraud-alleging appellant and adverse inference upheld.
Land law – proprietary dispute over sale of land and removal of caveat; assessors' opinions – unread opinions and limits on raising new grounds in second appeal; burden of proof – party alleging fraud must prove it; adverse inference – failure to call material witness may attract adverse inference; evidential contradictions – materiality assessed in context.
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8 April 2020 |
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A fresh suit on the same contract is barred by res judicata when prior competent courts have finally decided the matter.
Civil procedure — Res judicata — application where subsequent suit concerns same agreement and reliefs as earlier suit finally decided. Res judicata — elements under section 9 CPC: same matter, same parties or privies, same title, competent court, finally decided. Privity — officers/signatories to corporate body who participated in earlier litigation are privies. Abuse of process — instituting fresh suit after final decision is an abuse. Preliminary objection — res judicata may be a pure point of law and court may take judicial notice of prior court records.
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6 April 2020 |
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Defective certificate of delay (wrong supply date and misdescription) rendered appeal time-barred and it was struck out.
Civil procedure — Court of Appeal Rules, Rule 90 — Certificate of delay — validity — incorrect computation of excluded period and misdescription of the matter renders certificate fatally defective; defects go to foundation and preclude exclusion of days — appeal time-barred.
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6 April 2020 |
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Procedural failures in appointing and directing assessors vitiated the trial; conviction quashed and retrial ordered.
Criminal procedure – trials with assessors – failure to afford accused opportunity to object to assessors and failure to explain assessors’ duties – fatal irregularity; Summing up – omission to direct assessors on doctrine of recent possession, circumstantial evidence, malice aforethought and accused’s conduct – vitiates assessors’ role; Evidence – adequacy of prosecution case for retrial versus acquittal; Remedy – nullification of proceedings, quashing of conviction and ordered retrial.
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3 April 2020 |
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Failure to determine a mentally retarded victim’s competency rendered her testimony unreliable and conviction unsustainable.
Evidence — Competency of witness of unsound mind — Section 127(6) Evidence Act — Sexual offences — Reliance on victim’s testimony where mental retardation indicated — Charge under section 130(1)(2)(e) and 131(1) — Burden to prove guilt beyond reasonable doubt.
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3 April 2020 |
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Conviction quashed where defective charge and unsafe identification evidence in alleged gang rape at night failed to prove guilt.
Criminal law – Rape – Visual identification at night – need for particulars of lighting and immediate naming; Charge sheet – defective statement of offence (charged under child provisions though victim adult) – incurable irregularity; Gang rape versus single-charge framing – impact on conviction; Second appeal – interference with concurrent findings where misdirection/non-direction on facts.
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3 April 2020 |
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An equivocal guilty plea vitiated conviction; proceedings quashed and retrial ordered.
Criminal law – Plea of guilty – Equivocal, imperfect or unfinished plea vitiates bar to appeal under section 360(1) CPA – Proper plea-taking procedure – Misapplication of section 192 CPA – Remedy: quash proceedings, set aside conviction and sentence, order retrial under s.4(2) AJA.
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3 April 2020 |
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District Court lacked EOCCA jurisdiction absent DPP certificate; convictions quashed and appellants released.
Criminal law – EOCCA jurisdiction – offences under EOCCA triable by High Court; subordinate courts require DPP certificate of transfer. Constitutional/administrative law – proceedings without statutory conferment of jurisdiction are nullities. Criminal procedure – retrial discretion (Fatehali Manji principles) where trial contains irremediable defects; destruction of exhibits and chain of custody concerns; admissibility of certificate of seizure.
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3 April 2020 |
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Victim’s detailed testimony, corroborative medical findings and an oral confession upheld conviction and sentence for rape.
Criminal law – Rape – Proof of penetration and lack of consent – Victim’s testimony, medical (PF3) evidence and oral confession as admissible and sufficient evidence. Evidence – Admissibility and weight of oral confession before civilians/habitat members. Evidence – Expert/forensic evidence (DNA) not legally required where credible testimony and medical findings suffice. Procedure – Non-appearance of investigating police or administrative officers does not necessarily vitiate prosecution case where other credible direct evidence exists.
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3 April 2020 |
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A charge of armed robbery must state the person threatened; material variance and duplicity render convictions incurably defective.
Criminal law – Armed robbery – Particulars must disclose essential elements including person threatened; variance between charge particulars and evidence that goes to the root is fatal; duplicity where robbery and possession counts allege same property; incurable charge requires quashing of conviction and release if other sentences served.
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3 April 2020 |
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D.P.P. may not appear in appellate courts from Primary Court matters without appeal or notice; uncertified grounds are incompetent and unlawful sentence enhancement set aside.
Criminal procedure – Appeals from Primary Courts – D.P.P.’s right to participate only by appeal or by serving notice to be heard (MCA ss.20,25,34). Appellate jurisdiction – Appeals to Court of Appeal from Primary Courts limited to points of law certified by the High Court (AJA s.5(2)(c)). Sentencing – Illegal enhancement of sentence where court alters offence to armed robbery without charge or opportunity to comment; such enhancement is a nullity. Revisionary powers – Court may invoke s.4(2) AJA to quash irregular appellate proceedings and set aside unlawful sentences and orders.
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3 April 2020 |
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Appeal allowed: unreliable visual ID, improperly admitted extra‑judicial statement and material variance defeated the prosecution.
Visual identification – unreliable where witness fails to describe accused, lighting and observation conditions; Identification parade – cannot cure failure to identify at scene; Extra‑judicial statement – reading before formal admission is irregular and prejudicial; Variance between charge particulars and evidence – material variance vitiates prosecution; Standard of proof – prosecution must prove guilt beyond reasonable doubt.
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3 April 2020 |
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Appeal was timeous under section 361(1) CPA; High Court erred and must rehear the appeal on its merits.
Criminal procedure — computation of time for filing appeals — section 361(1) CPA — exclusion of time to obtain proceedings, judgment or order appealed against. Appeal procedure — notice of intention to appeal and lodging petition — compliance with statutory timelines. Natural justice — right to be heard (audi alteram partem) — appellate dismissal without hearing renders decision a nullity.
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2 April 2020 |
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Delay caused by the Registrar's failure to furnish certified proceedings excuses failure to lodge an appeal; notice of appeal not struck out.
Civil procedure — strike out of notice of appeal — Rule 89(2) — essential steps to prosecute appeal — request for certified proceedings from Registrar — delay caused by Registrar’s inaction — non-retrospective application of Rule 90(5) where not pleaded.
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2 April 2020 |
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Unread exhibits expunged but murder conviction upheld on reliable eyewitness identification despite trial omissions.
Criminal law – murder – identification evidence – reliability of eyewitnesses who knew accused and observed attack in daylight. Criminal procedure – admission of documentary exhibits – requirement to read exhibits after admission; failure leads to expungement. Criminal procedure – summing up to assessors – introduction of facts not testified to; materiality assessed for prejudice. Evidence – extra-judicial statement – distinction between confession and exculpatory statement. Appeal – first appeal as rehearing – appellate re-evaluation of evidence where trial court failed to consider defence.
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2 April 2020 |
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Delay caused by court processes (leave and certified copies) amounted to good cause for extension of time to appeal.
Civil procedure – Extension of time under Rule 10 – Good cause requires explanation of delay; court delays in granting leave and supplying certified copies can justify extension; respondent's failure to file affidavit limits challenge to law only.
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2 April 2020 |
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Confession and conduct supported conviction for robbery with violence; armed robbery not proved due to lack of weapon use.
Criminal law – robbery – armed robbery requires proof of use of a dangerous/offensive weapon against a person; where absent, offence is robbery with violence. Evidence – visual identification by a lone night witness is unsafe as sole basis for conviction. Evidence – cautioned statement: voluntariness and timing; time spent conveying accused excluded from basic interview period under s.50 CPA. Identification parade – procedural irregularities must be assessed but minor defects may be non-dispositive. Defence of alibi – should be raised and supported with notice/evidence to be effective.
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2 April 2020 |
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Improperly admitted statements expunged, but remaining circumstantial evidence upheld convictions and death sentences.
Criminal law – Evidence – Improper admission of cautioned and extrajudicial statements – trial within a trial – expungement; Circumstantial evidence – principles and standards – "last seen with deceased" rule; Conduct after the incident (flight, disposal/sale of victim's property) as corroboration; Materiality of minor contradictions.
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2 April 2020 |
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Whether a notice of appeal should be struck out for failing to take essential steps and for not serving a copy request.
Court of Appeal — Civil procedure — Striking out notice of appeal — Failure to take essential steps under Rule 89(2) — Time limits for instituting appeal under Rule 90(1) — Exception for written, served request for copies — Service requirements and exclusion of time — Sickness not a substitute for applying for extension of time.
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2 April 2020 |
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Failure to adequately sum up vital legal points to assessors rendered the trial ineffective; appellant's conviction quashed.
Criminal procedure — High Court trials with assessors — Duty to adequately sum up facts and law to assessors (s.265 & s.298(1) CPA) — Visual identification and circumstantial evidence — Ingredients of murder and malice aforethought — Inadequate summing up renders trial as without aid of assessors — Conviction quashed; sentence set aside.
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2 April 2020 |
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Assessors’ cross-examination and insufficient, contradictory circumstantial and expert evidence vitiated the murder conviction.
Criminal law – murder – circumstantial evidence – requirement of complete chain excluding all reasonable hypotheses; assessors’ role – assessors must not cross-examine witnesses (section 177 Evidence Act) – cross-examination by assessors vitiates trial; exhibits – necessity to read admitted exhibits aloud to accused; failure to call crucial witnesses – adverse inference; retrial – when not in interest of justice.
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2 April 2020 |
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A credible victim’s affirmed testimony can sustain a child rape conviction despite other evidential irregularities.
Evidence Act s.127 (tender‑age witnesses) – promise to tell the truth required where evidence given without oath or affirmation; failure renders evidence valueless. Sexual offences – victim’s testimony as best evidence; conviction may rest on credible victim evidence under s.127(6). Documentary exhibits irregularly admitted – contents not read out; exhibits expunged but oral corroboration may survive. Appellate review – concurrent credibility findings not disturbed without compelling reasons.
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1 April 2020 |
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Unsworn testimony voided proof of the victim's age; conviction quashed and retrial ordered.
Criminal law - Evidence: requirement to administer oath or affirmation (section 198(1) CPA; section 4 OJPA) — unsworn/unaffirmed testimony amounts to no evidence; statutory rape — age is essential element; defective trial for failure to affirm witnesses; retrial ordered; revision under AJA.
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1 April 2020 |
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Failure to direct assessors on essential legal points vitiated the trial; convictions quashed and retrial ordered.
Criminal procedure — assessors — summing up — non-direction on ingredients of offences, circumstantial evidence, confessional and expert evidence, conduct and last-person-seen doctrine — non-compliance with sections 265 and 298(1) CPA — trial vitiated — revisional powers under section 4(2) AJA — retrial ordered.
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1 April 2020 |
| March 2020 |
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Reported
Failure to permit objections to assessors and inadequate summing up vitiated the trial, prompting quashal and retrial.
Criminal procedure – Assessors – accused must be afforded opportunity to object to assessors; omission is a fatal irregularity. Summing up to assessors – duty to adequately explain relevant facts and points of law (confessions, circumstantial evidence, malice aforethought, intoxication, alibi). Importation of extraneous facts in summing up vitiates assessors' opinions and proceedings. Remedy – proceedings nullified from selection of assessors; conviction and sentence quashed; retrial ordered under revisional powers (s.4(2) AJA).
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31 March 2020 |
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Failure to involve the appellants in assessor selection and to address assessors on vital law rendered the trial a nullity.
Criminal procedure – Assessors – Selection: accused must be given opportunity to state objections to selected assessors; failure vitiates trial. Criminal procedure – Assessors – Summing up: trial judge must explain facts and vital points of law (identification by recognition, alibi, malice aforethought) to assessors. Evidence – Visual identification: prosecution must explain lighting, proximity and eliminate possibilities of mistaken identity; contradictions and unexplained delays undermine reliability. Criminal appeals – Retrial: retrial not ordered where original proceedings are defective but prosecution evidence is insufficient (Fatehali Manji principle).
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31 March 2020 |
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Rule 10 cannot revive an appeal deemed dismissed or compel record supply or acquittal.
Civil procedure – Court of Appeal – application for extension of time under Rule 10 – scope limited to enlarging time for acts required by the Rules. Appeal procedure – notice of appeal – institution of appeal by notice – Registrar’s duty to prepare and serve record of appeal. Criminal appeals – withdrawal under Rule 77(1) – withdrawal deemed dismissal – Rule 10 cannot resuscitate a deemed-dismissed appeal. Reliefs beyond Rule 10 (compelling record supply or ordering acquittal) are misconceived.
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31 March 2020 |
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Pleas of guilty must be unequivocal and pleadings must disclose the weapon-use ingredient of armed robbery; equivocal pleas render convictions nullities.
Criminal law — Plea of guilty — Plea must be unequivocal and admit every essential ingredient of the offence; repetition of particulars without elaboration insufficient — Armed robbery — prosecution must narrate how weapon was used (threat or injury) — Appealability of guilty pleas where plea is ambiguous — Appellate jurisdiction — exercise of revisional powers under s.4(2) AJA where first appellate court omitted to determine initiated appeal.
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31 March 2020 |
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Plea of guilty must be unequivocal and admit all ingredients of armed robbery; failure to do so renders conviction a nullity.
Criminal law – Plea of guilty – Requirement that plea be unequivocal and admit all constituent elements – Armed robbery – Narration of facts must disclose use/threat with weapon and identity of victim – Trial and appellate courts’ duty to ensure admissions establish prima facie ingredients – Revision under s.4(2) AJA where first appellate court overlooks initiated appeals.
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31 March 2020 |
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Application to extend time to revive a deemed-dismissed appeal due to registrar delay was misconceived and struck out.
Civil procedure – Court of Appeal Rules – Rule 10: extension of time limited to acts authorized by the Rules. Appeal procedure – Registrar’s duty to prepare and serve record of appeal – Registrar’s delay does not automatically justify fresh notice of appeal. Procedural consequence – Withdrawal under Rule 77(1) results in appeal being deemed dismissed and cannot be resurrected by Rule 10. Extension of time – applicant must show good cause; remedies exist to compel Registrar rather than re-initiate appeal.
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31 March 2020 |
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Reported
Appellant failed to prove post-delivery inspections or agency/authorization; appeal dismissed for lack of evidence.
Sale of Goods Act s.36 – buyer’s right to inspect goods and requirement to request and prove inspection. Evidence – burden of proof (s.110 Evidence Act) lies on the party alleging facts; failure to tender inspection reports or call inspectors defeats claim. Agency/authorization – party dealing with a company must verify authority of person transacting; failure to do due diligence is negligent. Appellate review – first appeal power to re-evaluate evidence under Rule 36 but will not disturb correct findings of trial court.
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31 March 2020 |
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Reported
Appeal dismissed: admissible oral confessions and corroborated caution statement proved guilt despite an expunged extra-judicial statement.
Criminal law – murder – circumstantial evidence and oral admissions – when oral confessions to reliable witnesses may ground conviction. Evidence – caution statement – repudiated confession may be relied on if corroborated. Evidence – extra-judicial statement – mandatory compliance with Chief Justice's Guide to Justices of the Peace required; non-compliance renders statement inadmissible. Evidence – hearsay – statements conveyed via third parties are inadmissible as direct confession. Procedure – contradictions and omission of witnesses do not necessarily negate otherwise credible evidence.
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30 March 2020 |
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Trial vitiated by failure to direct assessors and defective dying-declaration evidence; conviction quashed, no retrial ordered.
Criminal procedure – Trials with aid of assessors – Duty to direct assessors on vital legal points (dying declaration, circumstantial evidence, alibi). Evidence – Dying declaration – statutory requirements for admissibility and role in visual identification. Criminal appeals – When retrial should be refused where prosecution case is contradictory and defective. Appellate jurisdiction – Revisional powers to quash conviction and order release.
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30 March 2020 |
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Plea of guilty must clearly admit every ingredient; failure to show how weapon was used vitiates conviction.
Criminal law — Armed robbery — Plea of guilty — Plea must be an unequivocal admission of every ingredient of the offence — Narration of facts in support of plea must specify how weapon was used (threat or injury) and against whom — Typographical/record errors do not cure substantive failure to inform accused — Appellate and revisional jurisdiction under s.4(2) AJA to quash convictions and order re-arraignment where first appeal overlooked matters arising from filed notice of intention to appeal.
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28 March 2020 |
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Leave granted to amend notice of appeal under Rule 111 to omit two appellants; service objection dismissed.
Civil procedure — Appeal — Amendment of notice of appeal under Rule 111 — Leave to omit parties no longer interested; service of process — attempted service and failure to file reply affidavit.
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27 March 2020 |
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Time spent prosecuting an appeal is a technical delay warranting extension; High Court misdirected on certificate versus leave.
Civil procedure — extension of time — technical delay: delay caused by time spent prosecuting a matter in court can constitute good cause for extension of time. Appellate procedure — distinction between application for certificate on point of law and leave to appeal; misdirection by treating one as the other warrants quashing and remittal. High Court — functus officio — prior dismissal of a different application does not render court functus officio where applications are distinct. Record preparation — Registrar should ensure proper arrangement of appeal records.
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27 March 2020 |
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The appellant's statutory‑rape conviction was quashed because the prosecution failed to prove the victim's age; no retrial ordered.
Criminal appeal – new grounds before Court of Appeal – appellate court will not entertain grounds not raised and decided in the High Court. Criminal procedure – defective charge – particulars and facts read before plea may cure citation defects (section 388 CPA). Statutory rape – proof of victim's age is essential for section 130(1)(2)(e). Evidence – preliminary answers/particulars are not sworn evidence; age should be proved by parent, relative, medical practitioner or birth certificate. Retrial – generally not ordered where prosecution can fill gaps in its evidence; interest of justice governs retrial orders.
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27 March 2020 |
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Appeal was incompetent for failure to give notice within ten days; High Court should have struck out, not dismissed, and its order was quashed.
Criminal procedure – Appeal – Requirement to give notice of intention to appeal within ten days under s.361(1)(a) CPA – Failure renders appeal to High Court incompetent – Remedy is to strike out incompetent appeal so appellant may apply for extension under s.361(2) – High Court's dismissal instead of striking out is unlawful – Court may quash proceedings and order reprocessing.
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27 March 2020 |
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An appeal filed without the statutory ten-day notice is incompetent and should be struck out, not dismissed; appellant may apply for extension.
Criminal procedure – appeal competence – requirement to give notice of intention to appeal within ten days under s.361(1)(a) CPA – failure to give notice renders appeal incompetent – incompetent appeals should be struck out not dismissed – right to apply for extension under s.361(2) CPA.
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27 March 2020 |