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Citation
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Judgment date
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| December 1994 |
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Refusal to join an identification parade does not alone prove guilt; unsafe identification led to conviction and sentence being quashed.
* Criminal law – Identification evidence – Whether accused was properly and correctly identified as participant in burglary and robbery – Safety of conviction. * Criminal procedure – Identification parade – Refusal to participate cannot alone be treated as evidence of guilt. * Appeal – Conviction and sentence liable to be quashed where identification is unsafe.
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30 December 1994 |
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Appeal dismissed: owner’s permission to build and failure to prove exclusive tenancy defeated trespass claim.
Landlord and tenant – owner’s right to permit development – licensee treated as tenant where owner permits building – burden of proof on tenant to show exclusive rights – municipal building permission and statutory provisions relevant to trespass and entitlement.
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29 December 1994 |
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Applicant’s delay and lack of diligence meant Meru Church crisis and illness did not justify extension of time to appeal.
Civil procedure – extension of time to appeal – good cause and diligence required – delay unexplained where affidavits dated months after judgment – obtaining copy of proceedings imposes duty to act within 30 days.
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28 December 1994 |
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Conviction for theft by a public servant quashed where key documentary evidence was unauthenticated and reasonable doubt existed.
Criminal law – Theft by public servant – Burden of proof – Conviction unsafe where material documentary evidence is unauthenticated and defence raises reasonable doubt; appellate power to quash.
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28 December 1994 |
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Admission of an unrelated hearsay village letter rendered the conviction unsafe; acquittal warranted for lack of proof.
Criminal law – Evidence – Improper admission of hearsay/outsider letter – Relevance and authorship – Conviction unsafe where prosecution fails to prove guilt beyond reasonable doubt.
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23 December 1994 |
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Reassignment to different duties does not amount to reinstatement; employee entitled to suspended half-pay or statutory compensation.
Parastatal service – reinstatement – meaning restoration to same position; Suspension pay – entitlement to remaining half salary during suspension; Security of Employment Ordinance – statutory compensation where reinstatement to former post not possible.
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23 December 1994 |
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Conviction based solely on household members' visual ID during a chaotic robbery was unsafe and therefore quashed.
* Evidence – Visual identification – Where identification is given only by victim's household members during a chaotic nighttime robbery, particulars (lighting, position, opportunity to observe) must be clearly established; such identification requires corroboration. * Criminal appeal – Conviction unsafe – Absence of police/arresting-officer testimony and lack of corroborative evidence may render conviction unsafe and justify quashing and setting aside sentence.
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22 December 1994 |
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Conviction quashed where prosecution failed to prove the appellant's presence or link to the stolen property.
* Criminal law – sufficiency of evidence; identification – whether appellant was proved present at scene of breaking and theft – association with co-accused insufficient to sustain conviction – unsafe conviction quashed.
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22 December 1994 |
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Where evidence did not connect the accused to a robbery or show knowledge of stolen property, acquittal and reconciliation were appropriate.
* Criminal law – robbery with violence (ss. 285, 286 Penal Code) – seriousness of offence and limits to reconciliation under s. 4(2) Primary Courts Criminal Procedure Code. * Evidence – proof required to link accused to actual commission of robbery; possession of one stolen item insufficient without proof of participation or guilty knowledge. * Receiving stolen property – s. 311(1) Penal Code – prosecution must prove accused knew or ought to have known property was stolen.
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22 December 1994 |
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Appeal dismissed: evidence insufficient to prove robbery or that respondent knowingly received stolen property.
* Criminal law – robbery with violence – seriousness of offence and public interest – suitability of reconciliation under section 4(2) of the Primary Courts Criminal Procedure Code. * Evidence – sufficiency to link accused to actual perpetration – possession of single item among many stolen items and lapse of time. * Criminal law – receiving stolen property – mens rea requirement (knowledge or constructive knowledge) under section 311(1) of the Penal Code.
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22 December 1994 |
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Possession of allegedly stolen cattle did not support conviction where a plausible auction purchase raised reasonable doubt.
Criminal law – Theft – Possession of stolen property – Where a plausible innocent explanation (purchase at auction) raises reasonable doubt, conviction cannot stand; documentary discrepancies not determinative of guilty knowledge; conduct after alleged theft (retention vs disposal) relevant to inference of guilty knowledge.
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22 December 1994 |
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Customary/deemed rights of occupancy are constitutional property; extinguishment without fair compensation and ouster of courts is unconstitutional.
* Land law — Customary/deemed rights of occupancy — Whether such rights are "property" under Article 24 of the Constitution — held to be constitutional property. * Constitutional law — Deprivation of property — Compensation required for value added to land, not limited to unexhausted improvements (Nyerere Doctrine). * Administrative/constitutional law — Ouster of courts — Statutory provisions excluding ordinary court jurisdiction unconstitutional; tribunals must be subject to judicial oversight. * Statutory interpretation — Severability — Invalid provisions to be struck down, remainder retained where separable. * Transitional effect — Prior extinction by subsidiary legislation not revived by subsequent constitutional protections.
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21 December 1994 |
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Court found hearsay and sightings at a co-accuseds home insufficient and held co-accuseds statements cannot convict another.
* Evidence Circumstantial and hearsay evidence hearsay that a suspect was among thieves is inadmissible/insufficient if unsupported by direct testimony. * Evidence Sightings at co-accuseds residence limited probative value absent corroboration. * Evidence Admissions by co-accused statements by one accused cannot be used as admissions against another without independent corroboration.
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21 December 1994 |
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Conviction for cultivating in a forest reserve quashed where statutory declaration and Gazette publication were not proven.
* Criminal law – Forest Ordinance – declaration of forest reserve – mandatory statutory requirements (publication in Official Gazette, notice period, compensation) – failure to prove compliance vitiates conviction.
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21 December 1994 |
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Appellant's conviction for assault occasioning ABH upheld; sentence varied to release after time served.
Criminal law – Assault occasioning actual bodily harm – Taking of property under alleged militia orders – Defence of property – Illegality of seizure and criminal liability – Mitigation and sentence variation; time served.
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20 December 1994 |
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Conviction for robbery with violence quashed where prosecution failed to prove theft and evidence was inconsistent.
Criminal law – Robbery with violence – Proof of theft element – Evidence inconsistent where alleged stolen property not recovered – Conviction quashed for failure to prove case beyond reasonable doubt.
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19 December 1994 |
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Conviction quashed where identification of stolen items and link to appellant were not proved beyond reasonable doubt.
* Criminal law – robbery – identification of stolen property – necessity of clear link between items found and those proved to be stolen.
* Evidence – chain of possession – purchase after the offence does not alone establish that goods were stolen or link accused to theft.
* Evidence – credibility and consistency of witness testimony – inconsistent dates and lack of in‑court identification weaken prosecution case.
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19 December 1994 |
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Appeal allowed: identification of recovered property was inadequate and conviction/sentence were quashed.
* Criminal law – identification evidence – sufficiency of proof that recovered property is stolen property – witness must give identifying particulars and reasons for positive identification. * Criminal procedure – judgment and sentence – trial court must state reasons for findings and specify the count(s) of conviction when sentencing. * Appeal – conviction unsafe where identification is inadequate and trial judge’s conclusions are unsupported by record.
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19 December 1994 |
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Evidence showed unlawful fatal punishment but insufficient proof of intent to kill, resulting in manslaughter conviction.
Criminal law – distinction between murder and manslaughter – necessity of proving malice aforethought; eyewitness credibility; unlawful corporal punishment by a parent leading to death; mitigation for first offender.
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16 December 1994 |
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Appeal dismissed: evidence established land was sold, not pledged; appellant failed to prove right to redeem.
Land law – sale versus pledge (rehna) – credibility of testimony and contradictions in monetary amounts – effect of written sale document and need for proper cancellation – time bar/12‑year lapse – standard of appellate review of lower court findings.
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15 December 1994 |
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Appeal allowed: convictions quashed due to unreliable identification and prosecution’s failure to call key witnesses.
Criminal law – identification evidence – reliability of visual identification at distance and in panic; failure to call material witnesses – adverse effect on prosecution’s case; circumstantial evidence – need for links to accused; benefit of doubt – convictions quashed.
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14 December 1994 |
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Conviction unsafe where court relied on uncorroborated accomplice evidence and inference from the accused’s position.
Criminal law – accomplice evidence – admissible but court must warn itself of dangers and seek corroboration; uncorroborated accomplice evidence may render conviction unsafe. Criminal law – inference from position/opportunity – mere opportunity or presumed awareness of missing stock insufficient to prove guilt beyond reasonable doubt. Appeal allowed; conviction quashed.
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14 December 1994 |
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Whether eyewitness and circumstantial evidence proved a police officer's theft beyond reasonable doubt.
Criminal law – Theft (s.265 Penal Code) – Identification and credibility of eyewitnesses – Circumstantial and provenance evidence – Failure to impeach witnesses – Allegation of planted evidence – Statutory sentence upheld.
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13 December 1994 |
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A trial conducted without a valid section 12(3) transfer certificate is void; conviction and sentence quashed.
* Criminal law – Economic and Organized Crime Control Act – section 12(3) certificate – transfer of cases – requirement that certificate be validly issued and lodged to confer jurisdiction on subordinate courts.
* Jurisdiction – distinction between District Court and Court of a Resident Magistrate – a court cannot exercise jurisdiction transferred to a differently constituted court absent proper statutory procedure.
* Procedural irregularity – trial conducted without jurisdiction renders conviction a nullity.
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13 December 1994 |
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13 December 1994 |
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Whether evidence proved that a teacher caused a pupil not to attend school; court found insufficient proof and dismissed the appeal.
Criminal law – offence of occasioning a pupil not to attend school; sufficiency of evidence and burden of proof beyond reasonable doubt; allegations of sexual intercourse between teacher and pupil; interplay between criminal prosecution and teacher disciplinary procedures (Teachers Service Regulations).
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13 December 1994 |
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13 December 1994 |
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Uncorroborated co‑accused evidence is unsafe for conviction; recent possession may support receiving but not necessarily theft.
* Criminal law – Evidence of co‑accused – admissible but dangerous; requires independent corroboration.
* Criminal procedure – Cautioned/confession statements of co‑accused – may implicate others but need corroboration before sustaining conviction.
* Criminal law – Recent possession of stolen property – raises presumption of guilt but may support receiving rather than theft depending on circumstances.
* Remedy – Where evidence is insufficient for theft, court may alter conviction to receiving stolen property and adjust orders accordingly.
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13 December 1994 |
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Uncorroborated co‑accused testimony is unsafe; cautioned statements may nonetheless support conviction; recent possession can justify receiving charge.
Criminal law – co-accused testimony and need for corroboration; cautioned statements and repudiation; recent possession of stolen property as evidence of receiving; substitution of convictions on appeal.
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13 December 1994 |
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13 December 1994 |
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Circumstantial evidence and the accused's conduct justified conviction and the statutory five‑year sentence for theft by a public servant.
Criminal law — Circumstantial evidence — Identification and inferences — Conduct of accused (delay in reporting, failure to raise alarm) — Whether evidence excludes all reasonable hypotheses of innocence — Conviction and statutory minimum sentence upheld.
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13 December 1994 |
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Application for certiorari and mandamus dismissed because the supporting affidavit failed to disclose sources and grounds of belief.
Administrative/constitutional review — certiorari and mandamus; Affidavit evidence — must disclose sources and grounds of information and belief; Order XIX Rule 3(1) Civil Procedure Code — affidavits confined to personal knowledge except limited interlocutory exceptions; Defective affidavits render applications incompetent.
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13 December 1994 |
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Application to set aside arbitral award dismissed where respondent company had been struck off and ceased to exist as a legal person.
* Arbitration – Enforcement – Making arbitral award a decree – Whether an award can be made a decree and enforced against a company struck off the register.
* Company law – Striking off – Effect of striking off on legal personality and capacity to give instructions or be represented in legal proceedings.
* Procedure – Adjournment – Counsel without instructions because client dissolved cannot properly obtain indefinite adjournment; may be permitted to assist as amicus curiae.
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13 December 1994 |
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Application to set aside an arbitration award dismissed where the respondent company had been struck off and proceedings abated.
Arbitration – enforcement – application under s.11 Arbitration Ordinance to make award a decree; Company law – struck-off company ceases to be a legal person – abatement of proceedings; Civil procedure – representation and adjournment where client no longer exists; Enforcement – whether an award against a struck-off company can be made a decree and enforced.
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13 December 1994 |
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An acquittal for lack of knowledge does not permit an accused to keep stolen property; restitution upheld and other acquittals re-opened.
Criminal law – Restitution of property – Acquittal for lack of guilty knowledge does not entitle accused to retain stolen property – Ownership and recovery of stolen goods – Re-opening of acquittal proceedings where trial verdicts conflict with evidence – Magistrates' Courts Act s.44(1)(a); Criminal Procedure Act s.373(2).
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12 December 1994 |
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Appeal dismissed: acquittal upheld due to insufficient evidence and respondent given benefit of doubt.
Criminal law – Theft and receiving stolen goods – Insufficiency of evidence; Absence of key witness; Benefit of the doubt and acquittal; Appellate interference with acquittal.
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12 December 1994 |
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Village allocation cannot divest a long-standing occupant without lawful process; tribalistic judicial bias vitiated the decision.
Land allocation – village land allocation committee – possessory rights of long-standing occupant – abandonment of licensee does not automatically extinguish occupier’s rights – administrative deprivation of land – judicial bias – tribalistic remarks vitiating judgment.
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8 December 1994 |
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Appellate court misappreciated evidence and misdirected on alleged delay; Primary Court decision restoring appellant’s title reinstated.
Civil procedure – appeal – appellate court’s duty to properly evaluate evidence and credibility; lease versus ownership of land; misdirection by appellate magistrate on delay/inaction; restoration of trial court judgment.
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8 December 1994 |
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Absence of mandatory s.101 conciliation certificate renders divorce proceedings void despite credible cruelty findings.
Family law – Divorce – Mandatory referral to Marriage Conciliation Board and certificate under s.101 Law of Marriage Act 1971 – Exceptions and ‘extraordinary circumstances’ – Failure to comply renders proceedings void; appellate review – credibility findings of trial court generally respected.
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8 December 1994 |
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Statutory amendments make offences under the Dangerous Drugs Ordinance non-bailable, so the court cannot grant bail.
* Criminal law – Dangerous Drugs Ordinance – Unlawful possession of cocaine – Designation as an economic offence under the Economic and Organised Crime Control Act – Statutory prohibition on granting bail (s.35(3)(9) as amended).
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7 December 1994 |
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Conviction overturned where absence of key identification witness and lack of corroboration raised reasonable doubt.
Criminal law – identification evidence – failure to call identifying witness; identification parade record insufficient to replace viva voce testimony; admissibility and corroboration of co-accused’s statements; prosecution’s duty to procure witnesses or seek alternatives (commission, local evidence).
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6 December 1994 |
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Appellant's conviction quashed where evidence was thin and uncorroborated; failure to raise alarm insufficient to infer guilt.
Criminal law — Sufficiency of evidence; accomplice evidence — caution and need for corroboration; failure to raise alarm or name suspects not conclusive; misdirection by trial magistrate.
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6 December 1994 |
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Recent possession within three days supported robbery conviction; the appellant's appeal and sentence were dismissed.
Criminal law – Robbery – Recent possession – Identification of stolen property – Credibility of witnesses – Appellate deference to trial court factual findings.
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6 December 1994 |
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Appeal dismissed: evidence established the applicant, as accounts clerk, misappropriated funds and falsified accounts.
Criminal law – theft by public servant and false accounting; evidence – burden to prove actual receipt and failure to account; accounting responsibility – distinction between theoretical supervisory responsibility and practical custody; appellate review – audit report’s limited effect on trial findings.
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6 December 1994 |
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Appeal dismissed: accused seen and arrested at scene convicted; insufficient identification evidence quashed convictions of co-accused.
* Criminal law – unlawful wounding – identification evidence – conviction proper where accused seen committing the act and arrested at scene – insufficient identification for co-accused arrested later and acquitted. * Evidence – identification on dark night – need for specific description and corroboration, including police reporting.
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6 December 1994 |
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Revision succeeds in quashing dismissal for want of prosecution, but amendment and injunction relief in revision are refused.
Civil procedure — Revision under s.44 Magistrates Courts Act — limitation and commencement of time for revision — dismissal for want of prosecution — scope of revisional jurisdiction; Pleadings — amendment of plaint not permissible via revisional original jurisdiction; Injunctions — extension of long‑standing injunction must be sought from the issuing court (Order XXXVII, rule and GN 508/1991).
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6 December 1994 |
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Court restored order for sale and division of house built jointly on one party's plot, rejecting plot-valuation remedy.
Family law – Matrimonial property – Contributions by both parties to construction on a plot owned by one party – Proper remedy under s.114 of the Law of Marriage Act 1971: sale of house and division of proceeds rather than valuation of plot only; s.160 (deemed marriage) relevant to matrimonial status.
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6 December 1994 |
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Appeal allowed: house must be sold and proceeds divided under s.114, not limited to plot value.
Matrimonial property division – Cohabitation deemed marriage (s.160) – Contributions to construction on spouse’s land – Proper remedy under s.114 Law of Marriage Act: sale of house and division of proceeds.
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6 December 1994 |
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A jointly constructed house during a deemed marriage must be sold and proceeds divided, not limited to plot value.
Matrimonial property – Cohabitation deemed marriage (s.160, Law of Marriage Act 1971) – Contributions to construction – Division of property (s.114, Law of Marriage Act 1971) – Sale of jointly improved property versus compensation limited to land value – Consideration of child’s interests.
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6 December 1994 |
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Appeal against rape conviction dismissed: complainant’s credibility, medical report and corroboration upheld; sentence affirmed.
* Criminal law – Rape – Evidence – Credibility of complainant, medical report (PF3) and witness corroboration supporting conviction; vulnerability of complainant (epilepsy) and opportunity to exploit. * Appeal – appellate court defers to trial magistrate’s credibility findings where supported by record. * Sentence – five years’ imprisonment not manifestly excessive.
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6 December 1994 |