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Citation
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Judgment date
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| July 1983 |
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5 July 1983 |
Criminal Practice and Procedure - Sentencing - First offender • B Aged 18 - Sentenced to imprisonment without fine option - Improper |
5 July 1983 |
Evidence - Confession -Involuntary confession made to a Police Officer under threat of being beaten this being only evidence - Whether trial court acted properly to base a conviction on it. Evidence - Admission - Admissibility of evidence under s. 34 B of Evidence Act - Whether the signature of a deponent alone is sufficient for a written statement of a witness who is abroad to be put in evidence |
5 July 1983 |
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Reported
Conviction quashed where confession was involuntary and s.34B(2) statement improperly admitted.
Criminal law – admissibility of confessions – voluntariness and inducement by threats or beatings renders confession inadmissible. Evidence Act s.34B(2) – statutory requirements for admitting out‑of‑court statements are cumulative and all must be satisfied. Criminal procedure – conviction unsustainable where primary evidence is inadmissible and no other probative evidence exists.
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5 July 1983 |
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5 July 1983 |
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4 July 1983 |
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Municipal council wrongfully terminated construction contract; contractor entitled to damages, retention balance and refund of unlawful deductions.
Contract law – extension of time by conduct/letter; wrongful termination for failure to follow contractual termination procedure; substantial performance and damages; retention monies and unlawful deductions; entitlement to refund, damages, costs and interest.
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4 July 1983 |
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Whether the respondent wrongfully terminated a contract where the applicant had substantially performed amid material shortages and price rises.
Contract law – termination – wrongful termination where contractor substantially performed but delayed by supply shortages and price increases; extension of time by conduct/letter; substantial performance entitling contractor to damages; unlawful unilateral deduction and recovery of retention money.
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4 July 1983 |
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Reported
Accused acquitted as prosecution failed to disprove self-defence against possibly excessive police force during arrest.
Criminal law – Unlawful wounding – Resisting lawful arrest – Self-defence – Lawfulness of arrest need not be known by accused – Excessive force by arresting officers vitiates unlawfulness of defendant's defensive act – Credibility of police witnesses.
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2 July 1983 |
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Accused acquitted of unlawful wounding where self‑defence and evidential doubt about police conduct created reasonable doubt.
Criminal law – Wounding (s.222 Penal Code) – Elements and unlawfulness. Lawful arrest – when courts may assume law enforcement acted lawfully. Self‑defence – burden on prosecution to disprove; reasonable force assessed relative to attacker’s force. Evaluation of witness credibility where accounts conflict (house shooting versus bush shooting).
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2 July 1983 |
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1 July 1983 |
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In absence of an agreed wage or proven customary payment in kind, an agricultural worker is entitled to payment assessed at the minimum rural wage; appeal dismissed.
Labour/agricultural workers – oral arrangement to tend land – absence of agreed remuneration – customary use of produce as payment not proven – application of minimum rural wage where no agreement. |
1 July 1983 |
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Trophy found on accused's premises raises presumption of possession under s.70(2); accused must rebut by raising reasonable doubt.
Wildlife Conservation Act — possession of Government trophies — s.70(2) presumption where trophy found in accused's building/premises — evidential burden on accused to rebut — prosecution not obliged to call all witnesses; identification of trophy evidence required.
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1 July 1983 |
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Reported
Imprisonment was inappropriate where a fine was available, but sentence was not revised because it had already been served.
Sentencing — Regulation of Prices Act — discretion to impose fine versus imprisonment — youth and first offender — guilty plea — consideration of amount overcharged — short prison terms often lack reformative/deterrent value — appellate revision precluded where sentence served.
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1 July 1983 |
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1 July 1983 |
| June 1983 |
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A court order affecting a non-party's land without proper complaint or hearing violates natural justice and is set aside.
Natural justice — non-party adjudication — procedural irregularity; customary land sales — proper forum (Primary Court) and procedure; order affecting possession without proper complaint or hearing — set aside; restoration and costs.
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30 June 1983 |
Evidence - Credibility - Evidence of a police decoy - Whether it needs corroboration.
Evidence - Cross-examination - Duty of defence counsel.
Evidence - Cross-examination - Failure of defence to cross-examine the other side on crucial matters - Whether defence may canvass a point not raised in cross-examination. |
27 June 1983 |
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Court affirms conviction on credible identification and confirms differentiated sentences based on differing roles in conspiracy.
Criminal law – identification evidence – reliability of identification by single witness – credibility assessment and need for corroboration where appropriate. Criminal law – conspiracy and participation – evidence required to infer participation. Criminal law – alibi – sufficiency and evaluation of alibi evidence. Sentencing – differentiation between co‑accused – principle permitting different sentences where roles and culpability differ. Appellate review – deference to trial court credibility findings but power to re‑evaluate evidence.
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27 June 1983 |
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Convictions based chiefly on a police decoys uncorroborated evidence were quashed for reasonable doubt.
Criminal law – Corruption/bribery – evidence of police agent/decoy – need for corroboration in practice where agent is not disinterested; confession to police officer admissible if voluntary; prosecution must prove guilt beyond reasonable doubt; effect of defence counsels failure to put crucial matter in cross-examination.
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27 June 1983 |
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Taxation of costs following withdrawal is premature where no party was successful and the cause was re-opened.
Civil procedure – Taxation of costs – Withdrawal of suit with leave to file afresh – No final decision yielded; no successful party – Taxation premature under rule 36(2) of Advocates' Remuneration and Taxation of Costs Rules (as amended). Re-opening same cause under new file number in subordinate court – costs to be fixed at ultimate decision.
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25 June 1983 |
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24 June 1983 |
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A court may dissolve an Islamic marriage despite unpaid doury; doury is a debt and cannot bar divorce.
Family law – dissolution of marriage under the Law of Marriage Act 1971; Islamic marriage – talaq not required for judicial divorce; doury (dower) treated as debt and does not prevent divorce; netting maintenance and dower obligations.
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23 June 1983 |
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Court affirmed divorce under Law of Marriage Act, holding doury is a debt and does not prevent dissolution.
Family law – Law of Marriage Act 1971 – court’s exclusive power to dissolve marriages; doury (dower) is a debt and does not bar dissolution; set‑off of maintenance and dower in matrimonial awards; irreparable breakdown as ground for divorce.
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23 June 1983 |
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Appellate court upheld robbery conviction based on reliable identification; concurrent sentences confirmed and appeal dismissed.
Criminal law – Robbery – Identification evidence – Recognition by multiple household witnesses familiar with accused – Appellate deference to trial magistrate’s credibility findings; Sentencing – concurrent terms; omission to order compensation under Sentences Act.
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23 June 1983 |
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Proceedings are void if a magistrate concludes trial after all assessors present at commencement are replaced.
Magistrates' Courts Act s.8(1) (as amended by Act No.18/1969) – assessors – substitution of all assessors mid‑trial – trial concluded in absence of all original assessors is null and void – remedy: plaintiff may re‑institute proceedings.
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23 June 1983 |
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21 June 1983 |
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21 June 1983 |
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Conviction quashed where prosecution relied on inadmissible hearsay telegram and failed to prove intent to defraud.
Criminal law – obtaining money by false pretences – mens rea/intent to defraud; Evidence – hearsay inadmissible (telegram) under s.62(1) Evidence Act; Burden of proof – prosecution must prove absence of official character and intent beyond reasonable doubt; Pleadings – defective particulars curable under s.346 Criminal Procedure Code.
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20 June 1983 |
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Reported
Evidence - Admissibility - Telegram to establish truthfulness of contents thereof- Whether admissible in evidence - S.61(l) Evidence Act, 1967.
Evidence - Burden of proof- Proof whether or not appellant was away on official duty - Burden on prosecution. |
20 June 1983 |
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Mutual affray causing death treated as manslaughter; accused convicted and sentenced to five years' imprisonment.
Criminal law – Homicide – Distinguishing murder from manslaughter – mutual affray/assault – credibility and contradictions in factual narratives – sentencing mitigation (no prior convictions, family dependants, time in remand).
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20 June 1983 |
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Appellate court upheld convictions for housebreaking with intent and theft based on credible eyewitness evidence; appeal dismissed.
Criminal law – Housebreaking with intent; Theft – Sufficiency and credibility of eyewitness evidence; Appeal – Conviction upheld where appellate court finds trial court’s factual findings justified.
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17 June 1983 |
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Reported
Conviction quashed where prosecution failed to prove a false representation and burden was wrongly shifted to the accused.
Criminal law – Obtaining credit by false pretences – particulars must allege representation at time of obtaining credit; failure to pay later is insufficient; burden of proof lies on prosecution; missing admission card and failure to call necessary witnesses render conviction unsafe.
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16 June 1983 |
Criminal Law - Obtaining credit by false pretenses -Appellants stayed in hotel and enjoyed services in course of their employer’s duty - Appellant failed to pay the bills for the services rendered - Whether false pretence - Section 305 (13) of the Penal Code. |
16 June 1983 |
Criminal Law - Fraudulent false accounting c/s 317 (c) of Penal Code - Discrepancy between store ledger and physical goods in store - Whether sufficient to convict. |
15 June 1983 |
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Conviction overturned where stolen goods' identity was unproven and prosecution relied on an uncorroborated hostile witness.
Criminal law – theft by servant – Identification of stolen property – Reliance on single hostile witness – Need for corroboration – Proof beyond reasonable doubt – Unsafe conviction – Appellate intervention.
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15 June 1983 |
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Reported
Convictions for stealing and false accounting unsafe where prosecution failed to prove goods were not legitimately consumed.
Criminal evidence – burden of proof – insufficiency of proof where perishable stock absent; hearsay inadmissible – necessity to call available witnesses; fraudulent false accounting requires proof of intent to defraud; suspicion cannot replace proof.
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15 June 1983 |
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Reported
The appellant’s unequivocal guilty plea barred challenge to conviction; sentence reduced under the Minimum Sentences Act.
Criminal law — guilty plea — appealability: guilty plea generally bars appeal against conviction unless plea ambiguous, mistaken, or charge discloses no offence; robbery — theft element and bona fide claim of right; sentencing — Minimum Sentences Act s.6 merciful discretion; appellate competence and striking out defective appeals.
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15 June 1983 |
Criminal Practice and Procedure - Appeal against a conviction based on an unequivocal plea of guilty - Such appeal cannot be sustained - Magistrates Courts Act, 1963, section 16(2) (a) - Appeal against sentence may stand. Criminal Practice and Procedure - Conviction on plea of guilty - Circumstance on which appeal may stand. |
15 June 1983 |
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14 June 1983 |
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Reported
A suspect’s statement to police is admissible only insofar as it leads to a physical discovery; mere association cannot sustain conviction.
Evidence — s.31 Evidence Act — admission of information leading to discovery: only that part of accused’s statement which distinctly relates to a physically discovered fact is admissible; other portions inadmissible. Confession — s.33(1) Evidence Act — a statement that does not amount to a confession of participation cannot be used to convict co-accused. Criminal law — mere association or opportunity insufficient for conviction. Sentencing — Minimum Sentences Act: minimum for attempted robbery is three years; appellate reduction of excessive sentence lawful.
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13 June 1983 |
Evidence - Confession -Admissibility ofconfession made to a police officer before enactment ofs. 4 ofEvidence (Amendment) Act. 1980; and lamination imposed by s. 31 ofEvidence Act, 1962 |
13 June 1983 |
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10 June 1983 |
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Respondent held liable to refund 22 head of bridewealth cattle after 18 were seized in execution.
Family law — bridewealth (lobola) recovery — credibility of conflicting accounts of seizure and restoration of cattle — effect of execution seizure by third party on respondent’s liability to refund — civil restitution despite prior criminal conviction.
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9 June 1983 |
Criminal Practice and Procedure-Sentence passed by a subordinate court illegal (Minimum Sentences Act, 1972) - Duty of appellate court. |
9 June 1983 |
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Reported
An appellate court must correct illegal Minimum Sentences Act sentences, imposing proper terms even if enhancement causes hardship.
Criminal law – Sentencing – Minimum Sentences Act 1972 – Illegality of sentence – Appellate correction and enhancement of illegal sentences despite hardship; refund of set-aside fines.
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9 June 1983 |
Civil Practice and Procedure - Hearing on Preliminary points - Both parties absent- Suit dismissed - Advocate for plaintiff appearing before another magistrate - Whether dismissal should be set aside - O.IXr.4 Civil Procedure Code. Civil Practice and Procedure - Hearing on Preliminary points - Whether suit "called for hearing" O./Xi:3 Civil Procedure Code |
8 June 1983 |
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High Court will not disturb concurrent factual findings on a second appeal in a bailment dispute; appeal dismissed with costs.
Civil procedure – second appeal – concurrent findings of fact by lower courts – High Court will not interfere absent compelling reason or error of law Bailment – recovery of goods – dispute over quantity of cattle bailed and removal of part of the bailed property Appellate review – requirement to show misapprehension of evidence or legal error to overturn factual findings
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8 June 1983 |
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Appeal allowed: outstanding bridewealth claim defeated by GN. 279/63 rule after wife's death and by limitation.
Family law – bridewealth (lobola) – liability to complete payment after death of wife – application of rule 808, GN. 279/63. Civil procedure – limitation – ancient bridewealth claims and time-bar/abuse of process. Succession – liability of successors for deceased husband’s outstanding bridewealth.
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7 June 1983 |
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An earlier judgment ordering refund of bridewealth dissolved the marriage, so the respondent’s custody claim was dismissed.
Customary law – bridewealth refund – effect of refund on marital status and rights Civil procedure – effect of prior judgments between same parties – obligation of lower courts to consider and apply earlier decisions Family law – custody of children – entitlement linked to validity of customary marriage Evidence/record – appellate review where lower courts omit or contradict prior judicial findings
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7 June 1983 |
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Reported
Workmens Compensation Decree - Workmen's Compensation - “Arising out of and in the course of the employment” - Meaning - Workmen’s Compensation Decree, s. 6(1). |
6 June 1983 |