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Citation
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Judgment date
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| December 1990 |
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Whether the respondent was liable for crop damage by his cattle and whether the evidence justified the claimed quantum.
Tort/damages – Damage to crops by stray animals – liability of animal owner – sufficiency of identification evidence to establish ownership. Evidence – identification of animals and admissible proof – requirement to call material witnesses/reports. Quantum – necessity of particularized evidence to substantiate claimed valuation; deference to trial court assessment where evidence is insufficient.
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3 December 1990 |
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1 December 1990 |
| November 1990 |
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30 November 1990 |
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Additional evidence on appeal is limited to clarifying unresolved trial facts; a district court improperly conducting a retrial without a site inspection warrants setting aside its decision.
Civil procedure – Appeal – Admission of additional evidence on appeal – Additional evidence must be confined to clarification of unresolved facts and not to effect a complete retrial; Appellate court should indicate points requiring clarification. Evidence – Trial court site inspection – findings based on site inspection carry significant weight; appellate court that does not inspect may not safely reverse such findings.
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30 November 1990 |
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Oral customary dispositions lacking required formalities are invalid, but customary inheritance rules can vest property in a male grandson.
Customary law – inheritance – application of Second Schedule customary inheritance rules – male descendant (grandson) priority. Customary wills – oral testament – formalities and required witnesses under the Customary (Declaration) Order (Third Schedule, para. 11) – validity. Appellate review – credibility and balance of probabilities – scope of reversal of Primary Court findings.
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30 November 1990 |
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Ex parte judgment entered where defendant served by publication failed to appear; plaintiff's affidavit sufficed under Order VIII r.14(1).
Civil procedure – Ex parte judgment – Service by publication in newspaper – Adequacy of notice – Order VIII, Rule 14(1) Civil Procedure Code 1966 – Sufficiency of affidavit evidence to support ex parte judgment.
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30 November 1990 |
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Court grants ex parte judgment after defendant failed to file a defence and plaintiff proved case by affidavit.
Civil procedure – Failure to plead – Defendant’s non-compliance with summons to file a written statement of defence – Plaintiff’s affidavit proof – Ex parte judgment under Order VIII, Rule 14(1).
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30 November 1990 |
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Conviction quashed where nighttime eyewitness identification and identification of stolen goods were unreliable.
Criminal law – Identification evidence – reliability of eyewitness identification at night; standards for "watertight" identification. Criminal law – Stolen property – necessity of positive identification of exhibits as those taken from the scene; similarity insufficient. Criminal procedure – Burden of proof – prosecution must prove guilt beyond reasonable doubt; defective identification and unclear provenance of exhibits make conviction unsafe. Search and seizure/chain of custody – irregularities undermine admissibility and weight of evidence.
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30 November 1990 |
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Appellant failed to prove kinship or forgery; lower court's refusal to sustain objection and appointment of administrator affirmed with costs.
Probate and administration – appointment of administrator – challenge to administration on basis of alleged relationship and forged will – burden of proof on challenger; Evidence and procedure – requirement that objections and forgery allegations be proved, and appellate acceptance of lower court record when corroborated by affidavits; Delay – long delay in asserting entitlement relevant but not dispositive without proof of entitlement.
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30 November 1990 |
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Appeal allowed where trial court unjustifiably rejected documentary and witness evidence in a property possession dispute.
Evidence — evaluation of documentary and oral evidence — appellate review of trial court credibility findings; Possession/ownership disputes — admissibility and weight of historical documents; Appeal — when rejection of material evidence warrants setting aside trial judgment.
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30 November 1990 |
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Village headman’s valid reallocation and continuous possession support ownership against later encroachment.
Property — Customary allocation of village land — Village headman’s competence to reallocate abandoned shamba — Continuous and peaceful possession as evidence of title — Weight of reconciliation-board findings and acknowledgements.
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29 November 1990 |
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The applicant cannot relitigate ownership of cattle already adjudicated; appeal dismissed for abuse of process.
Property disputes; ownership of livestock; identity of chattels; res judicata/abuse of process — litigant may not relitigate ownership of items already adjudicated; credibility findings on alleged transfer of cattle while appeals pending.
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29 November 1990 |
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Delay, absence of sperm evidence and familial witnesses did not defeat reliable identification and corroboration; appeal dismissed.
Criminal law – defilement – identification and corroboration – delay in reporting – admissibility of medical report (PF.3) – relevance of absence of sperm evidence – relatives as prosecution witnesses.
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28 November 1990 |
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Township allocation with issued rights of occupancy prevails where claimant fails to prove continuous ancestral title.
Land law – Allocation by township authority – Right of occupancy – Proof of title by ancestral occupation and continuous possession – Sufficiency of evidence – Administrative remedy against allocation.
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28 November 1990 |
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A subsequent promise to repay does not erase theft; conviction upheld but sentence reduced for mitigation.
Criminal law – Theft by agent – Conversion of money entrusted for a specific purpose constitutes larceny even if the agent intends to repay. Criminal law – Consent and ratification – Subsequent promise to repay or post-facto compromise does not negate criminal liability; consent must be prior or contemporaneous. Sentencing – Genuine intention to repay is a mitigating factor warranting reduction of sentence.
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28 November 1990 |
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A man named as father cannot deny paternity unless he proves he never had sexual intercourse with the mother.
Family law – Paternity presumption – Where a woman names a man as the father he cannot deny paternity unless he proves he never had sexual intercourse with her – Burden of proof – Maintenance order upheld.
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27 November 1990 |
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High Court restored primary court boundary decision, finding district court erred about road's effect on the common boundary.
Land law; boundary dispute – effect of village allocation and road construction on common boundary; appellate review – setting aside district court judgment and restoring primary court decision; failure of respondent to appear at hearing.
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26 November 1990 |
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Failure to prevent family harassment and matrimonial neglect can establish irretrievable breakdown of a customary marriage.
Family law — Divorce under customary law — Irretrievable breakdown — Recurrent assaults by appellant’s children and relatives, accusations of witchcraft, and matrimonial neglect; failure by spouse to prevent harassment can make him indirectly party to conduct causing breakdown.
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26 November 1990 |
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A spouse cannot reclaim bride-price without first obtaining annulment or dissolution of a subsisting marriage.
Marriage law – Non-consummation by wilful refusal – Voidable, not void; Marriage remains subsisting until annulled or dissolved; Claim for return of bride-price requires prior annulment/dissolution; Seizure of bride-price property may be preserved pending determination.
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26 November 1990 |
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Appeal dismissed: appellant failed to prove wrongful retention of cattle; concurrent credibility findings upheld.
Civil — Bailment/possession of livestock — Claim for specific head of cattle and calves; burden of proof and credibility; concurrent findings of fact on appeal; suspicions insufficient to rebut positive evidence.
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25 November 1990 |
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Insufficient evidence to convict appellant of theft; third accused reclassified as receiver of stolen property and sentence confirmed.
Criminal law – sufficiency of evidence – identification and possession – recent possession doctrine – when recent possession may impute theft – substitution of conviction under s306 Criminal Procedure Act (receiving stolen property).
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24 November 1990 |
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24 November 1990 |
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Appeal dismissed in a custody dispute hinging on whether the child was conceived before the divorce.
Family law – custody of child – legitimacy and timing of birth relative to decree of divorce – whether child conceived before or after divorce – effect of conception date on custody determination.
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24 November 1990 |
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Warrantless search lawful; conviction for possession of hidden bullets upheld; 15‑year sentence reduced to seven years under 1989 amendments.
Criminal procedure – Warrantless search – Section 42(1)(b)(ii) Criminal Procedure Act permits search without warrant in appropriate circumstances. Evidence – Concealed ammunition found in accused's mattress – credibility of police and village witness – appellate court will not interfere with trial magistrate's factual findings. Sentencing – Distinction between munitions of war and civilian ammunition – applicable minimum sentence under Miscellaneous Amendments Act No.10 of 1989.
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24 November 1990 |
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Reported
Convictions for possession of buried elephant tusks and an unlicensed firearm affirmed; unlawful retroactive 20-year and corporal sentences quashed and resentenced.
Wildlife law — possession of government trophies (elephant tusks); presumption of possession where found on accused’s land; unlicensed firearm possession; sentencing — non-retroactivity of penal provisions; maximum penalty at time of offence; prohibition of retrospective increase in punishment; Interpretation of Laws Act s49; constitutional protection against heavier retrospective penalties (Article 13(6)(c)).
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23 November 1990 |
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The applicant’s prolonged acceptance of rent and delay estops him from evicting the respondent for renovation.
Tenancy law – vacant possession – owner’s claim to repossess for renovation – need to show genuine requirement and alternative accommodation. Abandonment – occupation by family member and acceptance of rent negates abandonment. Rent acceptance – long acceptance of rent constitutes estoppel and supports tenant status against trespass allegation. Laches – prolonged inaction by landlord (16 years) defeats repossession claim.
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23 November 1990 |
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Circumstantial and testimonial evidence failed to exclude innocence, resulting in the accused’s acquittal for murder.
Criminal law – Murder – Circumstantial evidence – Identity – Requirement that circumstantial evidence must be consistent only with guilt (R v Blom principle) – Assessment of witness credibility and reasonable doubt.
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23 November 1990 |
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Reported
Court allowed applicant's late appeal because the primary court usurped administrator’s powers by prematurely distributing the estate.
Probate/administration — Primary Court’s powers — Whether Primary Court may determine ownership or distribute estate before administrator appointed; Appeal out of time — discretion to grant leave requires assessment of merits and likelihood of success; Administrative act (letter) unsupported by court order cannot stay execution.
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23 November 1990 |
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Leave to appeal out of time granted where district court failed to assess merits; Primary Court erred by prematurely distributing estate and deciding property ownership.
Civil procedure – leave to appeal out of time – court must consider both reasons for delay and likelihood of success of intended appeal; Probate/administration – Primary Court cannot distribute estate or determine ownership of assets before proper administration; Judicial review – setting aside illegal premature orders of lower court.
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23 November 1990 |
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Appeal dismissed for failure to prove lawful seizure or ownership of the respondent's seven cattle.
Property – recovery of goods – self-help seizure – burden of proof of ownership – seizure found unlawful and lower courts' orders affirmed.
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22 November 1990 |
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22 November 1990 |
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22 November 1990 |
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Appeal dismissed where appellant was found with stolen goods minutes after burglary; eyewitness identification and credibility upheld.
Criminal law – Burglary and theft – Recovery of stolen property shortly after offence – Eyewitness identification of recovered goods – Credibility and acceptance of prosecution evidence – Appellate review of trial magistrate's assessment of witnesses.
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21 November 1990 |
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An appellate court must not overturn trial credibility findings or introduce unpleaded customary deductions on appeal.
Customary law – brideprice – determination of amount paid and refundable portion after dissolution with children present. Appellate review – weight of evidence and credibility determinations – deference to trial court unless clearly wrong. Civil procedure – introduction of new issues or customary deductions on appeal not pleaded at trial is improper and unfair.
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21 November 1990 |
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21 November 1990 |
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Appeal dismissed: conviction and statutory five‑year sentence for theft by public servant upheld on clear, unrefuted evidence.
Criminal law – Theft by public servant (ss. 270, 265 Penal Code) – Sufficiency of evidence – watchman with keys, missing government property and recovery of goods. Appeal – standard for overturning conviction – whether defence raises reasonable doubt. Sentencing – application of statutory minimum; recovery of property and compensation order.
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21 November 1990 |
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Conviction for robbery quashed where appellant’s name alone on an unexplained list was the only evidence linking him to the crime.
Criminal law – Robbery – Sufficiency of evidence – No identification or possession of stolen goods – Name appearing on unexplained list in co-accused's house insufficient to prove participation – Conviction quashed.
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21 November 1990 |
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21 November 1990 |
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21 November 1990 |
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Appeal dismissed: seizure and disposition of cattle in execution held lawful and supported by evidence; no proven misconduct.
Execution of judgment – seizure of livestock – evidentiary sufficiency for lawful seizure – allegations of misconduct by judgment collector – appellate review of factual findings.
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20 November 1990 |
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Procedural failure to record a majority judgment and dissent in the primary court necessitated quashing lower proceedings and ordering a retrial.
Civil procedure – Primary Courts – Magistrates' Courts (Primary Courts) (Judgment of Court) Rules 1977 (Rules 3 & 4) – mandatory requirements to record majority decision and dissenting member's brief statement – non‑compliance renders proceedings defective. Revision/appeal – district court – jurisdictional and procedural limits where no proper trial judgment exists – functus officio consequences. Remedy – quashing of proceedings and order for retrial de novo where procedural irregularities cause failure of justice.
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20 November 1990 |
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Three appellants’ convictions quashed for insufficient evidence; one appellant’s conviction upheld on recent possession and inconsistent alibi.
Criminal law – Burglary and theft – sufficiency of evidence – recent possession doctrine – recovery of stolen property from accused’s room – need for proof of knowledge or participation by accused to sustain conviction.
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19 November 1990 |
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19 November 1990 |
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A defendant must first apply to the trial court (Rule 30(1)) to set aside an ex-parte judgment; District Court had no jurisdiction.
Civil procedure — Ex-parte judgment — Proper remedy for absent defendant — Application under Rule 30(1) to trial court to set aside ex-parte judgment. Jurisdiction — District Court — No appeal lies to District Court against ex-parte interlocutory decision of Primary Court. Magistrates' Courts (Civil Procedure in Primary Courts) Rules 1964 — Rule 30(1) — Procedure and discretion regarding time limits and sufficient cause. Revision/appellate power — Limits of District Court's power to nullify Primary Court ex-parte proceedings.
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19 November 1990 |
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Appellants' convictions for robbery quashed where night-time torch-lit identification was unsafe and not proven beyond reasonable doubt.
Criminal law – Robbery with violence – Identification evidence – Night-time conditions and use of torches flashing into victims’ eyes – Unfavourable conditions may render identification unsafe; conviction cannot stand where misidentification is not excluded.
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17 November 1990 |
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Owner who admitted liability and paid elders' assessed compensation remains liable to victim; may pursue third parties separately.
Delict/tort – animals straying – owner’s liability for damage caused by his cattle. Admission of liability and customary/communal assessment – binding between parties and concluding their dispute. Right of recourse – paid compensator may sue third parties who caused the loss but cannot avoid liability to the person compensated. Appellate review – lower courts’ mischaracterisation of admissions and assessments set aside.
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17 November 1990 |
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Trial court properly dismissed charge under s.205 after prosecution's repeated, unjustified adjournments and failure to present witnesses.
Criminal procedure – adjournments – limits on prosecution delays – trial court's duty to control proceedings and ensure justice is done and seen to be done. Criminal Procedure Code s.205 – dismissal of charge for failure of prosecution to present evidence after reasonable opportunity. Prosecutorial conduct – repeated adjournments and lack of seriousness may justify acquittal under s.205.
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17 November 1990 |
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Appellate court allowed prosecution’s appeal, set aside acquittal and convicted respondent for theft of a pistol and ammunition.
Criminal law – Appeal against acquittal – Whether evidence of possession and circumstances of recovery can support inference of theft – Appellate intervention where trial court’s acceptance of accused’s explanation is contrary to the evidence.
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16 November 1990 |
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An appellant who disposed of a jointly owned inherited bull without respondent's consent must pay half its value; appeal dismissed.
Property (joint inheritance) – wrongful disposition of jointly owned chattel entrusted to one co-owner – remedy by monetary compensation equal to co-owner’s share; appellate review – deference to magistrate’s factual findings where evidence ample.
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16 November 1990 |
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Recent possession plus corroborating witness evidence can sustain armed robbery convictions; inadequate evidence may require quashing a conviction.
Criminal law – Armed robbery – Invocation of doctrine of recent possession – possession soon after theft, handling and storing of stolen goods as evidence. Criminal procedure – Evidence – Use of accomplice testimony and witnesses with potential interest – need for caution and corroboration. Criminal procedure – Retraction of caution statements – retracted statements may corroborate where independent evidence supports them. Criminal law – Charging – receiving stolen goods as separate count where same persons charged with robbery (procedural impropriety if not framed as alternative).
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16 November 1990 |