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Citation
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Judgment date
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| December 2008 |
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Leave granted to serve a notice of appeal out of time where inadvertence was promptly remedied in good faith.
Court of Appeal — Rule 8 leave to serve notice of appeal out of time — requirement to show "sufficient reason" — inadvertence coupled with prompt remedial action and good faith — service ordered within seven days.
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31 December 2008 |
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A non‑party with a proprietary interest affected by a High Court order may obtain leave to institute revision out of time when no right of appeal exists.
Appellate procedure – extension of time to institute revision out of time – non-party with proprietary interest affected by High Court order – lack of right of appeal – justifiable cause – Halais Pro‑Chemie v Wella AG applied.
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19 December 2008 |
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A second appeal filed without statutory leave and outside the 14‑day period was struck out as incompetent.
Appellate procedure — second appeal under s.5(1)(c) Appellate Jurisdiction Act — mandatory leave to appeal — failure to apply within 14 days renders Notice of Appeal incompetent — power to strike out under Court of Appeal Rules (Rule 32).
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19 December 2008 |
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Second appeals under section 5(1)(c) require leave; failure to obtain leave within 14 days warranted striking out the appeal.
Appellate jurisdiction – second appeals under section 5(1)(c) Appellate Jurisdiction Act – statutory leave to appeal mandatory – failure to apply for leave within 14 days renders notice of appeal incompetent – Rule 82 Court of Appeal Rules – striking out for failure to take an essential step.
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19 December 2008 |
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A dismissal or an order setting aside a temporary injunction that confers no enforceable right is not capable of a stay of execution.
Civil procedure – Stay of execution – Whether a stay can be granted where the High Court dismissed the suit; Execution defined as enforcement of a judgment conferring rights; Dismissal or setting aside of temporary injunction not ordinarily capable of execution.
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16 December 2008 |
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Court sustains review for an obvious record error on director status but dismisses non-joinder-based review grounds.
* Civil procedure — Review of Court of Appeal’s own judgment — inherent jurisdiction limited to defined circumstances — error apparent on the face of the record leading to miscarriage of justice. * Company law evidence — company annual returns as definitive record of directors. * Civil procedure — non-joinder (Order 1 Rule 13 CPC) — objections must be raised timely; issues previously argued and decided are not grounds for review.
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1 December 2008 |
| November 2008 |
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Failure to serve notice and affidavits two clear days before hearing renders the application incompetent and struck out.
* Civil procedure – Court of Appeal Rules, Rule 52(1) – service of Notice of Motion and affidavits at least two clear days before hearing; non‑compliance renders application incompetent and liable to be struck out with costs.
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25 November 2008 |
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Reported
Applicant permitted to amend defective drawn order; amended decree to be filed within seven days; costs to abide appeal outcome.
Amendment of record of appeal — Defective drawn order signed by Registrar — Rules 18(1), 47(1)&(2) and 104 Court of Appeal Rules — Leave to amend — Filing amended decree as part of record — Costs to abide appeal.
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20 November 2008 |
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Reported
Court allowed amendment of a defective drawn order and permitted filing of a correctly signed decree within seven days.
* Civil procedure – Appeal record – Amendment of defective drawn order signed by Registrar – Court of Appeal Rules (Rules 18, 47, 104) allow amendment of record of appeal with leave.
* Procedure – Supplementary record vs amendment – correction of clerical/administrative defects permissible before hearing.
* Extension of time – Court can permit filing of amended decree within specified time; costs to abide appeal result.
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20 November 2008 |
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An administrator failed to show sufficient cause for extending time to appeal a long-unattended judgment; application dismissed with costs.
* Civil procedure – extension of time – application to enlarge time to file notice of appeal – sufficiency of cause. * Appeals – Rule 76(2) Court of Appeal Rules – notice of appeal within 14 days from decision. * Executors/administrators – limits on reviving adjudicated rights of deceased – abuse of process. * Enforcement – duty to honour court decree pending any successful appeal.
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17 November 2008 |
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Reported
Applicant permitted to amend and file a defective decree signed by the Registrar as part of the record of appeal.
Court of Appeal Rules — amendment of record of appeal — drawn order signed by Registrar — leave to amend — Rules 18, 47 and 104 — extension of time — costs to abide appeal result.
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15 November 2008 |
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Court allowed amendment of a defective drawn order in the record of appeal and ordered filing within seven days.
* Civil Procedure – Court of Appeal Rules – amendment of record of appeal and memorandum of appeal – leave required under Rules 18(1), 47(1)&(2) and 104.
* Decree/signature – drawn order signed by Registrar may be corrected by amendment where proper decree is produced.
* Filing – amended document must show deletions/additions and be filed within time directed; costs to abide result.
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15 November 2008 |
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13 November 2008 |
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Court may suo motu revise interlocutory High Court errors; judges must state reasons when disqualifying themselves.
Appellate jurisdiction – section 4(3) AJ Act – suo motu revision of High Court proceedings; Judicial recusal – necessity to state reasons and afford parties hearing; Criminal procedure – mandatory ruling under s.293(1) after close of prosecution; Premature summing-up – s.298(1) applicable only after both sides close; Continuation of trial – s.299(1) permits successor judge to act on recorded evidence; Improper expunging/return of exhibits – s.353 governs disposal.
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13 November 2008 |
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Reported
Wrong citation of enabling law rendered Labour Court proceedings a nullity; Court of Appeal quashed the injunction and set aside orders.
Labour Court jurisdiction; injunctions restraining strikes; effect of wrong citation of enabling provision; interlocutory versus final injunction; right to file notice of opposition/counter-affidavit; Court of Appeal revisional intervention suo motu.
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11 November 2008 |
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A final injunction restraining a strike must be challenged by appeal; wrong citation of enabling law made the Labour Court proceedings a nullity.
Labour law — Injunctions to restrain strikes — Jurisdiction and enabling provisions; revisional versus appellate jurisdiction; wrong citation of enabling provision renders proceedings a nullity; right to be heard/counter-affidavit.
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11 November 2008 |
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Stay of execution granted pending appeal due to risk of irreparable loss and favourable balance of convenience.
* Civil procedure — Stay of execution under Rule 9(2)(b) — discretionary relief pending appeal — criteria: likelihood of success, irreparable harm, balance of convenience; court to avoid deciding merits in stay proceedings. * Arbitration — registration and execution of arbitral awards — challenge to registration procedure and audi alteram partem concerns.
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7 November 2008 |
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An order signed by the Registrar instead of the judge is an invalid decree, rendering any appeal incompetent and liable to be struck out.
Civil procedure — Decree versus order — Final and conclusive determination — Order XX Rule 7 CPC — Mandatory requirement that judge who pronounced judgment must sign and date decree — Decree signed by Registrar invalid — Invalid decree renders appeal incompetent.
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6 November 2008 |
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Representative-suit procedure under the CPC does not apply in the Court of Appeal; only appellants complying with Rule 76 have locus standi.
* Civil procedure – Representative suits – Order 1 r.8 CPC does not apply in the Court of Appeal; appearance governed by Court of Appeal Rules (R.28).
* Court of Appeal Rules – Notice of appeal – Rule 76 mandatory: written notice in duplicate within 14 days; non-compliance affects locus standi.
* Civil procedure – Substitution of parties – Oral application during hearing permitted under R.45(3)(a); leave to substitute respondent granted.
* Locus standi – Deceased original plaintiffs and absent administrators who did not enter appearance cannot participate unless status regularized.
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1 November 2008 |
| October 2008 |
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Adjournments ordered where registry’s late service caused unpreparedness; parties must honour counsel undertakings.
Civil procedure — Stay of execution applications — Adjournment where registry delayed service of notice — Registry admonished for inexcusable delay — Parties required to abide by counsel undertakings.
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28 October 2008 |
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Reported
Extension of time granted where delay was explained by late availability of High Court records and continuous pursuit.
Court of Appeal – extension of time – Rule 8 Court of Appeal Rules – delay sufficiently explained by late availability of court records and continuous pursuit – point of law not alone sufficient to justify extension.
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22 October 2008 |
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Extension of time granted where late availability of records and continuous prosecution adequately explained the delay.
Civil procedure — Extension of time under Court of Appeal Rules, 1979 Rule 8; sufficient reason for delay; availability of High Court records; prior time‑barred application; point of law not sole ground for extension.
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22 October 2008 |
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A defective or improperly dated decree renders an appeal incompetent and must be remedied by withdrawing and refiling a fresh record of appeal.
* Civil Procedure – Record of appeal – defective/improperly dated decree renders appeal incompetent – remedy is withdrawal and filing of a fresh record of appeal containing a proper order. * Court of Appeal Rules – Rule 8 (extension of time) and Rule 44 (concurrent jurisdiction) – limitations on using supplementary records to cure defective decrees. * Practice – a properly dated decree alone will not validate an otherwise defective record of appeal; fresh record recommended.
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22 October 2008 |
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Court affirms inherent power to review its own decisions and dismisses time-bar objection, directing merits to be heard.
* Court of Appeal — inherent power to review its own decisions despite no express statutory provision; * Limitation for review applications — sixty days fixed by later authority but not applied retroactively; * Preliminary objections — improper to raise merits-based complaints (frivolous/vexatious) as preliminary objections; * Grounds for review per Valambhia: condemned unheard, manifest error on face of record, want of jurisdiction, fraud.
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11 October 2008 |
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Owner’s signature obtained by mistake; perpetual tenancy invalid; appeal allowed with costs.
Contract law – unilateral mistake known to other party – illusory/perpetual tenancy invalid – illiterates protection inapplicable – failure to address framed issues.
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11 October 2008 |
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Misdescriptions in appeal documents do not justify striking out where the respondent took essential procedural steps.
* Civil Procedure – Rule 82 Court of Appeal Rules – striking out notice of appeal – grounds: no appeal lies or essential step not taken.
* Appeal procedure – essential steps: lodging notice of appeal, requesting copies of proceedings, obtaining leave to appeal.
* Procedural defects – misdescription of documents (ruling vs judgment; application vs appeal) – mere slips not fatal absent prejudice.
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10 October 2008 |
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Reported
Extension of time granted where delay was explained by late availability of court records and continuous pursuit of the matter.
Court of Appeal — extension of time under Rule 8 — applicant must show sufficient reasons accounting for entire delay; point of law alone insufficient; late availability of record and continuous pursuit may justify extension.
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8 October 2008 |
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Reported
The applicant's vague allegation of prison stationery shortages did not justify extension to file a review beyond the 60-day limit.
* Criminal procedure — Extension of time to file application for review under Rule 8 — Requirement to show sufficient reason; 60-day rule applies.
* Evidence — Prisoner allegations of stationery/typewriter shortage — need for corroboration or identification of responsible prison officials.
* Civil procedure — Judicial exercise of discretion in granting extensions — each case decided on its facts.
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7 October 2008 |
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An uncorroborated, general claim that prison administrative shortages caused delay does not justify extending time to file a review application.
* Criminal procedure – extension of time – application for review – requirement to show sufficient reason for delay – 60-day rule for review applications.
* Prison communications – allegations of delay due to prison authorities – need for corroborating evidence and particularisation (naming officials).
* Court’s discretion – must be exercised judicially and depends on facts and supporting evidence.
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7 October 2008 |
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Court granted extension of time and stay after appeal struck out for defective decree, citing prior court practice as sufficient reason.
Extension of time – Rule 8 Court of Appeal Rules – concurrent jurisdiction with High Court under Rule 44 – supplementary record of appeal to cure defective decree; defective decree and Court’s prior practice; stay of execution pending appeal.
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7 October 2008 |
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An uncorroborated claim of stationery shortages and dependence on prison staff does not justify extending time to seek review.
Criminal procedure – extension of time to apply for review – 60-day limitation period – prisoner’s alleged lack of stationery/typewriters – necessity for corroborating evidence from prison officials – unsupported explanations insufficient.
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7 October 2008 |
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7 October 2008 |
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A supplementary record cannot cure a fundamentally defective record of appeal; formal application and affidavit evidence are generally required.
Court of Appeal procedure – adjournment applications – formal (Rules 45, 46) v informal (Rule 45(3)) applications; Record of appeal – Rule 89(1) mandatory contents – trial judge's notes and shorthand transcript; Supplementary record – Rule 92(1) presupposes complete primary record and only cures minor deficiencies; Incomplete/incoherent record affecting competence cannot be cured by supplementary record; Importance of affidavit evidence when imputing registry or third-party faults.
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7 October 2008 |
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Applicant failed to show sufficient cause for inordinate delay; negligence by counsel and unchallenged ex parte sale warranted dismissal with costs.
* Civil procedure – extension of time – applicant must show sufficient cause; what is sufficient depends on circumstances. * Procedural negligence by counsel is attributable to applicant and does not ordinarily justify extension of time. * Execution and sale – payment by cheque and timing of exchequer receipt are factual matters requiring evidence; absence of such evidence undermines challenge to sale. * Ex parte judgment not set aside and sale not challenged earlier are relevant in denying extensions.
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7 October 2008 |
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A missing annexure to a trial reply does not render an appeal incompetent where required pleadings are in the record and omissions are rectifiable.
Court of Appeal procedure – Record of appeal – Rule 89(1)(c) – Pleadings – Order VI R.1 Civil Procedure Act – Deficient record – Supplementary record – Non‑fatal omissions; Election petitions – evidentiary documents not party to appeal.
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6 October 2008 |
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Appeal against a High Court interlocutory order was incompetent under the C.P.C.; appeal struck out and costs shared.
* Civil procedure – Appealability – Right of appeal is statutory – C.P.C. s.75 and Order XL restrict appeals from High Court orders unless statute provides otherwise.
* Civil procedure – Interlocutory orders – Appeal against order refusing extension of time/ordering ex parte proceedings held incompetent.
* Civil procedure – Preliminary objections – Court may raise competence sua sponte; appeal struck out.
* Costs – Where Court disposes on its own point and respondent’s contribution is minimal, each party to bear own costs.
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6 October 2008 |
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Applicant failed to show sufficient cause for extension of time to appeal; application dismissed with costs.
Extension of time – sufficient cause required – delay attributable to advocate’s failure to serve notice or follow correct procedure not a technicality excusing delay; sale in execution – Rule 83 Order XXI payment timeline – cheque payment and exchequer receipt timing require evidence; ex parte judgment and execution – consequences of failing to set aside judgment.
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3 October 2008 |
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Compliance with Rule 83(1)-(2) suspends appeal time; extension of time requires sufficient cause before merits are considered.
* Civil procedure – Appeals and revision – Rule 83(1)-(2) Court of Appeal Rules – application for copy of proceedings within 30 days excludes preparation time from computation; appeal time does not run until record supplied. * Extension of time – requirement of sufficient cause for delay; merits considered only after sufficient cause established. * Constitutional provision (Article 107A(2)(e)) – substantive justice does not permit short-circuiting mandatory procedural rules.
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1 October 2008 |
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Convictions quashed: prosecution failed to establish a prima facie case or to link the exhibited firearm to the deceased.
Criminal procedure – No case to answer – mandatory duty under s.293(1) to acquit if no prima facie case; Judicial power to summon witnesses (s.195(1)) – to be used sparingly and not to substitute for prosecution; Identification evidence – reliability and contradictions; Doctrine of recent possession – requires proof that the possessed item belonged to the victim and is the same item stolen; Proof of firearm ownership – need for licence or Central Arms Registry entry.
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1 October 2008 |
| September 2008 |
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Statutory succession of a corporate party requires formal substitution on record; Rule 98's "death" applies to natural persons only.
Court of Appeal procedure — substitution of parties where successor arises by operation of statute — Rule 98 ("death") construed as applying to natural persons only — necessity of formal application under Rule 3(2)(a) to substitute corporate parties on record — rejoinder affidavits and Rule 46(2) — scope of preliminary objections.
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25 September 2008 |
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22 September 2008 |
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Reported
A statutory corporate successor must be formally substituted in court; Rule 98’s "death" covers natural persons only.
* Civil procedure – Substitution of parties – Corporate successor by statute – Whether substitution occurs automatically or requires formal application under Court of Appeal Rules (Rule 3(2)(a)).
* Court of Appeal Rules – Rule 98 – Interpretation of "death" – applies to natural persons, not corporate entities.
* Affidavits – Rule 46(2) – validity of rejoinder and additional rejoinder – whether expunging them can dispose of proceedings (preliminary objection test).
* Evidence/Judicial notice – statutory vesting does not obviate requirement to move court to substitute parties on record.
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18 September 2008 |
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Reported
Appellants’ challenge to visual identification fails; concurrent factual findings upheld and appeal dismissed.
Criminal law – armed robbery – visual identification – requirements to exclude mistaken identity (Waziri Amani test); appellate review in second appeals under s.5(7) AJA – interference with concurrent findings of fact only for misdirection or insufficient evidence.
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12 September 2008 |
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Reported
The respondent’s notice of appeal was struck out for failure to take essential procedural steps within the prescribed time.
Appeals — institution of appeal — Rule 83(1) — requirement to lodge memorandum, record and pay fee within 60 days — exception for time obtaining certified copies — Rule 77(1) service of notice of appeal — strike out under Rule 82 for failure to take essential steps — no extension of time granted.
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10 September 2008 |
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A review application filed about two years after judgment was struck out as time-barred; a sixty-day limit applies.
* Criminal procedure – Review of Court of Appeal decision – Limitation period for filing review applications – sixty days. * Preliminary objection – Time-barred applications – Inordinate delay – Strike out. * Reliance on prior decisions adopting sixty-day limit for revision/review applications.
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3 September 2008 |
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Applicant's review filed 27 months after decision struck out as time‑barred; 60‑day limit enforced.
Criminal procedure — Review/revision applications — Time limit — Applications for review ordinarily to be filed within 60 days — Inordinate delay — Preliminary objection — Application struck out as time‑barred.
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3 September 2008 |
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A timely request for judgment by an incarcerated appellant may constitute notice of intention to appeal; leave granted to file out of time.
Criminal procedure – Notice of intention to appeal – A timely letter requesting judgment and proceedings may constitute a notice of intention to appeal; inmates' access to appeal processes; extension of time under Court of Appeal Rules, Rule 8; requirement for corroboration of prison-related delay allegations.
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1 September 2008 |
| August 2008 |
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Decrees from High Court summary suits are appealable as of right under section 5(1)(a); no leave required.
Appellate jurisdiction – section 5(1)(a) v. 5(1)(c) – appealability of High Court decrees in summary suits – Order XXXV – whether leave required – statutory interpretation of "every decree".
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28 August 2008 |
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Reported
The Court quashed an eviction order against the applicant issued prematurely without completed pleadings, exercising suo motu revisional powers.
Civil procedure — Revision and interlocutory orders; Appellate Jurisdiction Act s.5(2)(d) — interlocutory decisions not revisable unless finally determine suit; Appellate Jurisdiction Act s.4(3) — Court's suo motu revisional powers; Eviction — eviction not pleaded as relief and issued before pleadings and issues completed — irregularity and illegality.
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15 August 2008 |
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Reported
Court quashed an improperly issued eviction order and resumed trial due to illegality despite interlocutory‑order objection.
Civil procedure — Revision — Interlocutory orders — Section 5(2)(d) Appellate Jurisdiction Act — Competency of revision; Eviction — eviction not claimed as relief and pleadings incomplete — improper invocation of statutory eviction procedure; Appellate Court — suo motu revisional powers under section 4(3) to correct illegality and impropriety in High Court proceedings.
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15 August 2008 |