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Citation
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Judgment date
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| December 2013 |
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Failure to conduct the s.127(2) voire dire renders a child witness's evidence improperly taken and requires a retrial.
Evidence — Child witness — Section 127(2) Evidence Act — Voire dire examination required before receiving evidence of a child of tender years; court must record opinion — Properly taken child evidence does not require corroboration; failure to comply renders evidence inadmissible and warrants retrial.
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31 December 2013 |
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Applicants failed to serve notice of appeal; withdrawal allowed but respondent awarded costs due to applicants' negligence.
Civil procedure – service of notice of appeal – mandatory service requirement – failure to serve respondent and false explanation – notice of appeal deemed withdrawn for non-prosecution – withdrawal under Rule 58(3) – costs awarded for negligent conduct causing unnecessary litigation.
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12 December 2013 |
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Applicants succeeded in striking out a late notice of appeal; stay of execution refused for failure to show substantial loss and provide security.
* Civil procedure — Appeals — Striking out notices of appeal for non‑compliance with time limits — Costs ordinarily follow the event.
* Civil procedure — Stay of execution — Court of Appeal Rules, 2009, Rule 11(2)(b),(c),(d) — cumulative requirements of timely notice, substantial loss, and provision of security.
* Evidence — Affidavit misstatements — materiality assessed in context; isolated misstatements do not automatically deny costs.
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12 December 2013 |
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Stay of execution refused where applicant failed to provide required security under Rule 11(2)(d).
Civil procedure – Stay of execution – Rule 11(2)(d) Courts of Appeal Rules – Three conjunctive preconditions: substantial loss, no unreasonable delay, and security – security requirement may be met by firm undertaking within time – absence of security or undertaking defeats stay application.
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11 December 2013 |
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Conviction quashed where confession was improperly admitted and lone dock identification without parade rendered identification unsafe.
* Criminal law – admissibility of cautioned/confessional statements – belated recording and lack of lawful authority to take confession render statement inadmissible. * Criminal law – identification evidence – dock identification by sole witness without identification parade is unreliable and of little evidential value. * Appeal – second appellate interference where lower courts misapprehended evidence and relied on improper material. * Conviction unsafe where key confession and identification evidence are defective.
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11 December 2013 |
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Rule 10 cannot be used to extend time to appeal to the High Court; application was struck out.
Court of Appeal Rules – R.10 – scope limited to acts before this Court; Criminal Procedure Act s.361(2) – High Court’s power to admit late criminal appeals; jurisdictional limits; incompetent/misconceived application; striking out application.
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11 December 2013 |
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A stay of execution requires conjunctive proof of substantial loss, no unreasonable delay, and provision of security.
Civil procedure — Stay of execution — Rule 11(2)(d) Tanzania Court of Appeal Rules — Conditions for stay are conjunctive: substantial loss, no unreasonable delay, and security/undertaking — firm undertaking may suffice but must be made.
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10 December 2013 |
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An application to strike out a third-notice of appeal was dismissed because the applicant failed to meet Rule 11(2)’s security precondition.
* Civil procedure – Appeal – Third appeal – requirement for High Court certificate on a point of law before appealing to Court of Appeal. * Court of Appeal Rules, 2009 – Rule 89(2) (striking out notice of appeal) and Rule 91(a). * Procedure – ex parte hearing under Rule 63(2) where service of hearing notice fails. * Interlocutory relief – stay/security requirement under Rule 11(2) for due performance of any decree.
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10 December 2013 |
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An improperly constituted application is incompetent and should be struck out, not dismissed.
* Civil procedure – competence of applications – striking out incompetent application – distinction between striking out and dismissal; * Court of Appeal Rules – Rule 89(2) (application to strike out) and Rule 63(1) (dismissal for failure to appear); * Requirement of taking essential steps (leave to appeal) when prosecuting an appeal.
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6 December 2013 |
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A review must invoke Rule 66(1) grounds; failure to do so renders the application incompetent and dismissible.
Review procedure – Rule 66(1) and (3) – Review limited to enumerated grounds; failure to plead those grounds deprives Court of jurisdiction – Requirement to set out grounds and file within sixty days – Disguised re‑hearing not permitted in review – Procedural compliance mandatory.
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5 December 2013 |
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A stay of execution requires notice, good cause and provision of security; failure to provide security defeats the stay.
* Civil procedure – Stay of execution – Rule 11(2) Court of Appeal Rules – appeal does not operate as automatic stay – stay requires good cause and satisfaction of cumulative conditions in item (d) (substantial loss, no unreasonable delay, security). * Security for stay – deposit, bank guarantee or firm undertaking may suffice; absence of security fatal. * Procedure – court may proceed ex parte where respondent fails to file affidavits/submissions.
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5 December 2013 |
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Conviction based on weak visual identification and untested alibi was quashed; appellant entitled to release.
Criminal law – Armed robbery – Visual identification – Caution required where identification arises in poor conditions and from inconsistent testimony; Evidence of children – voire dire required to assess competency to take oath; Alibi – burden on prosecution to disprove notified alibi; Non-calling of available witnesses and contradictory accounts undermine prosecution case.
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4 December 2013 |
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Application to strike out a Notice of Appeal was held incompetent and struck out; no order as to costs.
* Civil procedure – application to strike out Notice of Appeal – competence of application under Rule 89(2).
* Procedure – improperly constituted appeal/application – principle to strike out rather than dismiss (Ngoni Matengo).
* Court discretion – costs where incompetence raised by the Court during hearing.
* Rule 63(1) – non-appearance of counsel and appropriate remedy.
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4 December 2013 |
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A stay pending appeal requires security or a firm undertaking; absence of either warrants dismissal.
* Civil procedure — Stay of execution pending appeal — Rule 11(2) Court of Appeal Rules, 2009 — cumulative requirements: notice of appeal, good cause, and Rule 11(2)(d)(i)–(iii).; * Security for due performance — mandatory requirement — may be satisfied by a firm undertaking to provide security within a court-set time; absence of security or undertaking defeats stay application.; * Application dismissed for failure to satisfy Rule 11(2)(d)(iii).
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4 December 2013 |
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Failure to institute an appeal within 60 days results in deemed withdrawal if time-exclusion requirements are unmet.
Appeal procedure — Court of Appeal Rules 2009 — Rule 89(2) (strike out) limited to persons served with notice; Rule 90(1)-(2) — time to institute appeal and requirement to serve written application for copies to benefit from time exclusion; Rule 91(a) — failure to institute appeal within appointed time results in deemed withdrawal.
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3 December 2013 |
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Conviction unsafe where identification evidence was contradictory, dock identifications lacked parade, and investigations were deficient.
Criminal law – identification evidence – credibility where witness fails to name suspect at earliest opportunity; dock identification – inadequacy without prior identification parade; failure to produce alleged weapon and poor investigation undermining prosecution case.
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3 December 2013 |
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Failure to make the mandatory s.127(2) finding invalidated child evidence, leading to quashing of the rape conviction.
Evidence Act s.127(2) – child witnesses – requirement to find understanding of oath before receiving sworn evidence; Sexual offences – conviction cannot rest on uncorroborated or improperly admitted child evidence; Hearsay – insufficiency to sustain conviction; Retrial – discretionary refusal where delay and prejudice make retrial unjust.
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2 December 2013 |
| November 2013 |
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Conviction unsafe where contradictory witness testimony, a suspect post‑mortem and a retracted confession fail to prove murder beyond reasonable doubt.
Criminal law – murder – requirement to prove death and link to accused beyond reasonable doubt; assessment of witness credibility; reliability of post‑mortem reports prepared or signed long after exhumation; retracted extra‑judicial confessions and allegations of torture; unsafe conviction where trial judge fails to address material contradictions in evidence.
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29 November 2013 |
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Murder conviction quashed where witness contradictions, suspect post-mortem and unreliable confession rendered conviction unsafe.
Criminal law – murder – proof of death and identity – circumstantial evidence – reliability of extra-judicial confessions – admissibility and probative value of post-mortem reports – assessment of witness credibility and material contradictions.
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29 November 2013 |
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Retracted confessions require a trial-within-a-trial; failure to hold one vitiates convictions and mandates retrial from the affected stage.
* Criminal procedure – Admissibility of confessions – Retracted/repudiated cautioned and extra-judicial statements – necessity of trial-within-a-trial to determine voluntariness and whether statement was made.
* Evidence – Trial irregularity – Failure to hold inquiry and to afford accused opportunity to be heard – incurable irregularity requiring expunging of evidence.
* Remedy – Partial nullification and order for retrial from the point affected by irregularities; convictions based on improperly admitted confessions quashed and set aside.
* Doctrine of recent possession and identification – secondary issues where prosecution evidence is weakened after expungement of confessions.
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27 November 2013 |
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Notice of appeal struck out because respondents failed to obtain required prior leave and thus took no essential procedural step.
Appellate procedure; requirement of prior leave under s.5(1)(c) Appellate Jurisdiction Act; Rule 45 Court of Appeal Rules — timing and manner of applying for leave; failure to apply (or for extension) as failure to take essential step; Rule 89(2) application to strike out notice of appeal.
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27 November 2013 |
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Material contradictions in prosecution evidence and withholding of exhibits warranted quashing of armed robbery convictions and release of the appellants.
* Criminal law – Armed robbery – identity and chain of events – material inconsistencies in prosecution witnesses' accounts.
* Criminal procedure – Duty of prosecution to call material witnesses and produce material exhibits; adverse inference where withheld without explanation.
* Evidence – Resolution of contradictions: whether inconsistencies go to the root of the case.
* Appeal – Interference with concurrent findings of fact where misdirections or failures to address material contradictions exist.
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27 November 2013 |
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Inconsistencies in prosecution evidence and withheld exhibits warranted quashing of armed robbery convictions and release of the appellants.
Criminal law - Armed robbery; credibility and inconsistencies in prosecution witnesses; duty to call material witnesses and produce exhibits; adverse inference for withheld evidence; appellate interference where lower courts misdirect on material evidence.
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27 November 2013 |
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An oral notice to prison officials can suffice as notice of intention to appeal under section 361(1)(a).
Criminal procedure — Notice of intention to appeal under s.361(1)(a) — Oral notice to prison officials sufficient; uncontroverted affidavit evidence must be considered; supply of copies of proceedings supports finding of notice — Appellate revisional powers (s.4(2) AJA) to set aside High Court proceedings where material evidence overlooked.
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27 November 2013 |
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An application for stay of execution is incompetent and struck out if not supported by a valid, dated copy of the decree.
Stay of execution; requirement for notice of motion within time; necessity of valid copy of decree; decree must be signed and dated; incompetence and striking out of application.
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26 November 2013 |
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An application for stay of execution without a properly dated and signed copy of the decree is incompetent.
Civil procedure — Stay of execution — Notice of motion must be supported by a valid copy of the decree — Decree must be signed and bear date — Copy lacking date is invalid — Application incompetent — Striking out.
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26 November 2013 |
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A stay application must be supported by a valid, signed and dated copy of the decree; otherwise it is incompetent.
Civil procedure – Stay of execution – Notice of motion – Requirement to accompany notice with a valid copy of the decree – Valid copy must be signed and dated – Defective/undated copy renders application incompetent.
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26 November 2013 |
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Absence of a signed, dated copy of a decree renders a stay-of-execution application incompetent and struck out.
Civil procedure – Stay of execution – Motion must be by notice of motion and comply with Court of Appeal Rules – Application must be accompanied by a valid copy of the decree – Decree must be signed and dated – Failure to attach a valid copy renders the application incompetent and liable to be struck out.
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26 November 2013 |
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Subordinate courts must hold a trial-within-a-trial for repudiated confessions; unlawful admissions vitiate convictions and warrant retrial.
Criminal procedure — confessional statements — duty of subordinate courts to hold trial-within-a-trial when confession is repudiated — voluntariness and admissibility — expunging unlawfully admitted cautioned and extra-judicial statements — partial nullification and retrial.
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26 November 2013 |
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A trial-within-a-trial is required when confessions are repudiated; improperly admitted retracted statements vitiate convictions.
Criminal procedure — trial-within-a-trial: subordinate courts must hold inquiry when accused repudiates confessional statements; failure is incurable. Admissibility of retracted cautioned and extra-judicial statements — fundamental irregularity warrants expungement. Partial nullification and retrial permissible where admission of disputed confessions prejudiced proceedings.
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26 November 2013 |
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Convictions for armed robbery quashed due to material witness inconsistencies and withheld evidence.
Criminal law – armed robbery – safety of conviction where prosecution witnesses give inconsistent accounts; withholding of material witnesses and exhibits (radio, cellphone); adverse inference against prosecution; scope for appellate interference where lower courts misdirect on material evidence.
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26 November 2013 |
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Conviction based on uncorroborated retracted confessions was unsafe; appeal allowed and conviction quashed.
* Criminal law Confessions Retracted/repudiated confessions require corroboration; uncorroborated confessions only admissible if court, after warning itself, is satisfied they are true. * Evidence Act s.33 caution in treating confessions as sole basis for conviction. * Procedural safeguards extrajudicial statements requirement that a Justice of the Peace identify himself and proper recording. * Forensic inconsistency postmortem findings may undermine confessional accounts.
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25 November 2013 |
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Appellant's conviction based on retracted, uncorroborated confessions inconsistent with forensic evidence was unsafe.
Evidence — Retracted confessions — Requirement for independent corroboration; retracted confession of one accused cannot corroborate that of another — Consistency with medico‑legal evidence — Admissibility and probative weight of extra‑judicial statements where recorder fails to identify as Justice of the Peace — Conviction unsafe if based solely on uncorroborated retracted confessions (Evidence Act s.33).
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25 November 2013 |
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Respondent's failure to obtain mandatory leave in time amounted to failure to take essential step and notice of appeal struck out.
* Appellate Jurisdiction Act s.5(1)(c) – mandatory prior leave to appeal where required.
* Court of Appeal Rules, 2009 – Rule 45: manner and time for application for leave (within 14 days or by chamber summons); Rule 106: written submissions and reply periods.
* Civil procedure – failure to take essential procedural step (not applying for leave or extension) – consequence: striking out notice of appeal.
* Procedure – ex parte hearing where respondent fails to file reply or appear.
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25 November 2013 |
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Notice of appeal struck out where respondents failed to obtain mandatory High Court leave and thus took no essential procedural steps.
* Appellate procedure – Appeal with leave under s.5(1)(c) Appellate Jurisdiction Act – Prior leave of the High Court mandatory.
* Court of Appeal Rules – R.45 (procedure and time for seeking leave) and R.106 (written submissions) – compliance required.
* Failure to take essential procedural steps (no leave, no application for extension) – grounds for striking out notice of appeal.
* Ex parte hearing – permissible where respondent fails to file required reply submission.
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25 November 2013 |
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An oral notice to prison officials can satisfy statutory notice requirements; High Court erred in dismissing extension application.
* Criminal procedure – section 361(1)(a) – notice of intention to appeal – oral notice to prison officials suffices; written notice not mandatory. * Extension of time – High Court erred in ignoring uncontroverted affidavit and documentary evidence. * Appeal – Court of Appeal grants opportunity to give notice and lodge appeal out of time.
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25 November 2013 |
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Where respondents fail to institute an appeal and do not satisfy Rule 90(2) exceptions, their notice of appeal is deemed withdrawn.
Court of Appeal Rules — Rule 89(2): relief only for persons served with notice of appeal; Rule 90(1)–(2): sixty-day institution period and requirement to serve written application for copies; Rule 91(a): notice deemed withdrawn if appeal not instituted; failure to serve notice and improper service of copy-application defeats time-exclusion exception.
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5 November 2013 |
| October 2013 |
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Omission of an attesting officer’s name in a jurat is not mandatory under s.8; objection dismissed, no costs.
Notaries Public and Commissioners for Oaths Act s.8 – jurat requirements (place and date mandatory; attesting officer’s name not mandatory); Evidence Act ss.58–59 – judicial notice of public/judicial offices and seals; magistrate as commissioner for oaths; preliminary objection to affidavit’s validity for omission of attesting officer’s name dismissed.
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11 October 2013 |
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Failure to include the attesting officer’s name in a jurat is not necessarily fatal; place and date are mandatory and defects are often curable.
Procedure — Affidavits — Jurat must truly state place and date of swearing (s.8 Notaries Public & Commissioner for Oaths Act) — Attesting officer’s name not mandatory — Signature or identifiable rubber stamp acceptable — Irregularities curable (s.9 Oaths and Statutory Declarations Act) — Amendment preferred to striking out.
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11 October 2013 |
| September 2013 |
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High Court lacked jurisdiction to extend time by chamber summons under the Court of Appeal Rules; remedy lies under section 11(1) of the Act.
* Appellate procedure – Extension of time to file notice of appeal – Proper jurisdictional basis: section 11(1) Appellate Jurisdiction Act (not chamber summons under Court of Appeal Rules). * Court procedure – Competence of proceedings – Application wrongly brought under Rules is incompetent and nullity. * Powers of Court of Appeal – Revision under section 4(2) to quash and set aside lower court proceedings. * Appeal competency – Appeal struck out where no valid lower court proceedings exist.
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27 September 2013 |
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Decision based on documents not tendered or tested at Ward Tribunal is a nullity and warrants retrial.
Land disputes – Ward Tribunals – admissibility of documentary evidence – documents not tendered, admitted or tested cannot form basis of decision; absence of local rules does not justify reliance on such documents; error causing failure of justice renders decision nullity and warrants retrial.
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27 September 2013 |
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Conviction quashed due to weak identification, inadequate proof of ownership and misapprehension of evidence by appellate court.
* Criminal law – Armed robbery – identification at night – weakness of visual identification; * Evidence – proof of ownership of stolen goods – need for specific particulars (e.g. serial numbers) beyond generic brand descriptions; * Evidence – doctrine of recent possession (s.31 Evidence Act) and its limits where prosecution case is weak; * Appellate review – misapprehension and inconsistent weighting of evidence; treatment of alibi.
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27 September 2013 |
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Acquittal upheld because prosecution failed to prove respondent authored forged letter; handwriting expert evidence unreliable.
Forgery — requirement to prove authorship and intent; Handwriting expert evidence — must be supported by material, methodology and enlargements to be probative; Evidence of receipt/filing of official documents — proof required to show reliance; Defective particulars in charge — may be cured by evidence but evidential sufficiency remains essential; Alleged interference with defence witnesses may amount to prosecutorial misconduct.
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26 September 2013 |
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Prosecution failed to prove forgery or obtaining property because handwriting expert evidence and receipt of the document were unreliable.
Criminal law – Forgery and obtaining property by false pretence – Proof of authorship – Reliability and admissibility of handwriting expert opinion – need for supporting materials and demonstrable methodology – requirement for proof of receipt/usage of disputed document by relevant authority.
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26 September 2013 |
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Order under O.21 R.62 C.P.C. is conclusive pending suit; appeal barred and notice of appeal struck out.
Civil Procedure – Order 21 Rule 62 C.P.C. – Effect of rule: party against whom an order is made may institute a suit and meanwhile the order is conclusive, barring appeal; Appealability – when orders are not appealable under O.21 R.62; Revision – requisites for exercising revisional powers (record must be before the Court).
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26 September 2013 |
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Conviction quashed where night identification and a procedurally flawed parade made identification unsafe.
* Criminal law – visual identification – night-time identification – requirements under Waziri Amani for watertight identification. * Identification parade – compliance with Police General Order No. 232 – notification of suspect's rights, presence of solicitor/friend, appropriate lineup and record-keeping. * Conviction quashed where both visual ID and parade evidence were unreliable.
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25 September 2013 |
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Appeal dismissed: ten-year manslaughter sentence upheld despite trial judge's omission to expressly mention guilty plea.
Criminal law – Sentencing – Manslaughter – appellate intervention only where sentence is manifestly excessive/inadequate, based on wrong principle, overlooks material factor or is otherwise illegal – guilty plea a mitigating factor but omission to state it does not automatically warrant reduction where sentence is appropriate on the facts.
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24 September 2013 |
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Night-time visual identification without supporting particulars is unsafe; benefit of doubt to the appellant, conviction quashed.
Criminal law – visual identification – night-time identification – prior acquaintance – failure to name suspects at earliest opportunity – unexplained delay in arrest – benefit of doubt – conviction quashed.
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24 September 2013 |
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Applicant failed to show good cause or an arguable Rule 66 ground; extension to file review refused.
Criminal procedure – extension of time to file review – Rule 10 Court of Appeal Rules; Review jurisdiction sui generis – limited to Rule 66(1) grounds (manifest error; denial of hearing; nullity; lack of jurisdiction; fraud/perjury); Factors for extension – length of delay, reason, arguable case, prejudice; Finality of litigation and sparing exercise of review jurisdiction; Prisoner’s lack of access to record insufficient without demonstration of arguable grounds.
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24 September 2013 |
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Proceeding with an appeal in the appellant's absence without ensuring notice violated the right to be heard and nullified the judgment.
Criminal Procedure Act ss.365, 366(2)(a) – right to be informed of hearing – entitlement to be present at appeal hearing; Right to be heard – fundamental procedural right – breach renders judgment nullity; Appeal – reinstatement and direction for rehearing where appellant condemned unheard.
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20 September 2013 |