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Citation
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Judgment date
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| October 2002 |
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High Court upheld appellate division of matrimonial property, finding the second wife made no contribution and refusing to interfere.
Matrimonial property – division of property between spouses – assessment of contribution under section 114 Law of Marriage Act, 1971 – evidence required to establish contribution. Family law – effect of cohabitation timing on status as contributor to matrimonial property – joinder of interested third parties in divorce/property proceedings. Civil appeal – appellate court's discretionary division of matrimonial property – appellate interference only where discretion misapplied or unsupported by reasons.
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31 October 2002 |
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Application to reinstate time-barred appeal dismissed; once appeal dismissed court lacks jurisdiction to revise, review only.
Civil procedure – time bars and extension of time – dismissal of appeal as time-barred extinguishes jurisdiction to revise; review may remain available. Procedure – reinstatement of appeal – application to reinstate time-barred appeal inappropriate once appeal dismissed. Remedies – proper remedy after dismissal for time-barred appeal is review or prior application for extension of time.
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31 October 2002 |
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Application for injunction over parastatal premises dismissed for lack of jurisdiction and non‑compliance with mandatory statutory requirements.
Administrative and civil procedure – Mandatory pre‑action notice to government/Attorney General – Failure to serve ninety‑day notice renders suit incompetent; Civil procedure – Proper registry and existence of main suit; Statutory leave required to sue receivers under Bankruptcy/Public Corporations statutes; Rent Restriction Act – bars adjudication/injunctions over parastatal or local authority premises; Possession – terminated employment and absence of tenancy agreement mean claimants may be trespassers, not entitled to injunction.
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31 October 2002 |
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Appeal dismissed: lack of evidence the cow was returned or died and concurrent lower-court findings upheld.
Civil procedure – appeal – appellate interference with concurrent findings – when to disturb lower courts' concurrent judgments. Customary/marriage law – betrothal/bride-price – recovery of cattle paid as betrothal where marriage fails. Evidence – burden of proof and need for corroboration (witnesses, veterinary evidence) to prove death and transfer of livestock. Admission of fresh evidence on appeal – afterthought claims and requirements for new evidence to be admitted.
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30 October 2002 |
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30 October 2002 |
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The appellant’s appeal dismissed; respondent entitled to recovery of a cow paid as betrothal due to lack of evidence of death or delivery.
Family law – betrothal (bride) price – recovery of cattle; evidence – proof of delivery and death of animal; failure to produce veterinary evidence; appellate procedure – inadmissibility of new evidence/after‑thought on appeal; concurrent findings – appeal dismissed as frivolous.
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30 October 2002 |
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Application for leave to sue parastatal and state-owned company granted; costs ordered in the cause.
Civil procedure – Leave to sue parastatal and state-owned entity – Application granted where respondents raise no objection – Costs in the cause.
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30 October 2002 |
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Minister cannot extend limitation period once statutory extension window has lapsed; application struck out as incompetent.
Law of Limitation Act s44(1) – Ministerial discretion to extend limitation period; limitation periods for tort (three years) and allowable one-half extension; time runs from day cause of action arose; inability to extend after extension window lapsed; competence of application for certiorari.
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30 October 2002 |
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30 October 2002 |
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30 October 2002 |
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30 October 2002 |
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Application struck out because statutory extension period had lapsed; Minister had no power to extend time.
Limitation law – extension of time under Law of Limitation Act – Minister’s discretion limited to one half of statutory period – time runs from cause of action – application incompetent if allowable extension lapsed.
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30 October 2002 |
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Appeal struck out for failure to file statutory notice and to seek extension under section 361 of the Criminal Procedure Act.
Criminal procedure — Notice of appeal — section 361(a) Criminal Procedure Act — mandatory time limits for lodging notice and filing appeal after certification — extension of time/leave required for late appeals — oral unrecorded intention to appeal insufficient — appeal struck out as time-barred.
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29 October 2002 |
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Court struck out suit for lack of jurisdiction, finding the Housing Tribunal the proper forum for a landlord–tenant dispute.
Jurisdiction — Landlord–tenant relationship — Suit properly triable before Regional Housing Tribunal — Special forum doctrine — Civil court will not normally entertain matters committed to a specialized forum — Pleadings disclosing tenancy — Strike out for lack of appropriate forum.
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29 October 2002 |
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The court held the applicant's dispute is a landlord–tenant matter for the Regional Housing Tribunal and struck out the suit.
Land law – jurisdiction – landlord–tenant disputes – Regional Housing Tribunal is the appropriate forum; specialized forum doctrine; plaint discloses lease/landlord–tenant relationship; suit struck out for want of jurisdiction.
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29 October 2002 |
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A dispute founded on terms of a lease is for the Housing Tribunal; the High Court struck out the suit for lack of proper forum.
Civil procedure – Jurisdiction – landlord/tenant disputes – Appropriate forum: Housing/Regional Tribunal under Rent Restriction Act versus civil courts. Special forum principle – where legislature creates a specialised tribunal, civil courts should decline jurisdiction unless no adequate remedy exists there. Pleadings – substance of plaint and written agreement may determine forum for dispute.
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29 October 2002 |
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Applicant granted extension to file notice and petition of appeal due to misplaced papers and frequent prison transfers.
Prisoners — extension of time to file notice of intention to appeal and appeal — frequent transfers of prisoner may constitute sufficient cause — requirement for State to produce prison officer affidavit to rebut prisoner’s account.
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28 October 2002 |
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Court reduced an excessive claimed instruction fee and taxed the bill of costs at shs 183,350, striking off the remainder.
Taxation of costs – assessment of reasonableness of instruction fees – application of prescribed scale (GN 515) – disallowance/reduction where entries do not tally with court record.
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24 October 2002 |
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24 October 2002 |
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An ex‑parte decree will not be set aside absent proof of non‑service or sufficient cause for non‑appearance.
Ex‑parte judgment; Order 9 Rule 13(1) CPC – setting aside decree for non‑service or sufficient cause; proof of service by process servers; misdescription of defendant curable by amendment; balance of probabilities standard; failure to call process servers for cross‑examination weakens non‑service claim.
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23 October 2002 |
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Application to restore withdrawn appeal dismissed as time‑barred and fatally defective for not citing enabling provisions.
Civil procedure — Application to restore withdrawn appeal — Time bar under Item 21, First Schedule, Civil Procedure Code (60 days) — Applicant failed to account for ten‑month delay — Limitation a total defence — Failure to cite enabling provisions fatal — Application dismissed with costs.
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22 October 2002 |
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Affidavits must be based on personal knowledge; counsel’s affidavits are defective and may invalidate an application.
Affidavits – competency of deponent – affidavits must be based on personal knowledge; Advocate’s affidavit – generally defective and hearsay; Where sole evidence is counsel’s affidavit the application is invalid and liable to be struck out; Costs may be awarded.
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22 October 2002 |
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An affidavit sworn by counsel lacks necessary personal knowledge and renders an application invalid if it is the sole evidence.
Civil procedure — Affidavits — Requirement of personal knowledge — Affidavit sworn by counsel ordinarily hearsay and defective — Application supported solely by counsel's affidavit invalid — Application struck out with costs.
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22 October 2002 |
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Appellant's failure to file court‑ordered submissions amounted to failure to prosecute, warranting dismissal; no costs in employment case.
Civil procedure — Failure to prosecute — Non‑compliance with court order to file written submissions — Dismissal of appeal. Employment law — Costs in employment causes — Section 143 Employment Ordinance — costs generally not awarded absent justification. Procedural compliance — court orders for submissions treated as part of hearing.
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22 October 2002 |
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22 October 2002 |
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Applicant’s attempt to vacate dismissal for late filings fails; counsel’s negligence imputed to applicant and application dismissed.
Civil procedure – application to set aside dismissal for want of prosecution – counsel’s late filing imputed to client – failure to cite enabling provisions may render application incompetent – application dismissed with costs.
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22 October 2002 |
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An advocate’s affidavit lacking personal knowledge is inadmissible; an application supported solely by such affidavit is struck out with costs.
Evidence — Affidavits — Affidavit must be based on deponent’s personal knowledge; Affidavit sworn by counsel is generally defective as hearsay; Application supported solely by counsel’s affidavit is invalid and may be struck out with costs.
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22 October 2002 |
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22 October 2002 |
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An application supported solely by an affidavit sworn by counsel is defective, inadmissible as hearsay, and must be struck out.
Civil procedure – Affidavits – Requirement that affidavits contain matters within deponent’s personal knowledge – Affidavit sworn by counsel defective where it contains hearsay derived from record, proceedings or client instructions. Evidence – Hearsay – Counsel’s affidavit as inadmissible substitute for oral evidence. Remedy – Application reliant solely on counsel-sworn affidavit is invalid and liable to be struck out with costs.
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22 October 2002 |
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An affidavit sworn by counsel based on records or client information is defective and renders the supported application invalid.
Evidence – Affidavit – Affidavit for use in court must be based on the deponent’s personal knowledge; affidavit sworn by counsel is defective/hearsay. Procedure – Application supported solely by counsel’s affidavit invalid; application struck out with costs.
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22 October 2002 |
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An application supported solely by an affidavit sworn by counsel is defective and will be struck out with costs.
Affidavits – competency of deponent; Affidavits by counsel – inadmissible if based on record or client instructions (hearsay); Affidavits must be from personal knowledge; Application supported solely by counsel‑sworn affidavit – invalid and struck out; Costs awarded.
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22 October 2002 |
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The appellant's appeal was dismissed as time‑barred under section 25(1)(b) of the Magistrates' Courts Act; merits not considered.
Appeal — statutory time limit for appeals — section 25(1)(b) Magistrates' Courts Act 1984 — accrual of right to appeal — effect of late filing — dismissal of time‑barred appeals.
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22 October 2002 |
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An appeal lodged outside the 30‑day statutory period is time‑barred and must be dismissed.
Appeal — Time limits — Section 25(1)(b) Magistrates’ Courts Act — Appeal to High Court must be lodged within 30 days of district court decision; appeal filed out of time is incompetent and merits not considered.
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22 October 2002 |
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An appeal filed beyond the statutory 30‑day period under section 25(1)(b) is time‑barred and must be dismissed.
Civil procedure – Appeals – Time limits – Section 25(1)(b) Magistrates' Courts Act 1984 – Appeal to High Court must be lodged within 30 days of district court decision – appeal filed out of time is time‑barred and cannot be entertained.* Evidence of filing (Exchequer Receipt) and arithmetic computation sufficient to establish lateness.* Court dismisses appeal for want of jurisdiction to hear merits; no order as to costs.
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22 October 2002 |
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Conviction in absentia without a s226(2) hearing vitiates proceedings and warrants remittal for magistrate’s reconsideration.
Criminal procedure – Conviction in absentia – Section 226(2) Criminal Procedure Act – Accused arrested after in absentia conviction must be brought before trial magistrate to explain absence and show probable defence – Failure to do so vitiates proceedings and requires remittal.
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21 October 2002 |
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Court granted the DPP an extension to file notice of intention to appeal and to lodge the appeal based on good cause and public interest.
Criminal procedure – extension of time to file notice of intention to appeal and to lodge appeal – section 379 Criminal Procedure Act 1985 – good cause, special or peculiar circumstances – prosecutorial discretion and public interest – delay caused by absent witnesses or office/agent procedural irregularity.
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18 October 2002 |
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Conviction quashed because the trial court lacked territorial jurisdiction where the offence was committed outside its district.
Criminal procedure – Territorial jurisdiction – Trial held outside district where offence occurred – Trial court lacked jurisdiction; conviction quashed.
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17 October 2002 |
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17 October 2002 |
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The court authorised the applicant to adopt after valid consents and best‑interest requirements were satisfied.
Adoption — consent of natural parents and spouse — court inquiry into understanding of effect of adoption — continuous care and possession by applicant — compliance with Adoption Ordinance — best interests of child.
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16 October 2002 |
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Appellate court may cure a wrong charge by substituting the correct conviction and ordering release if sentence already served.
Criminal law – Wrong charge – Facts inconsistent with s.178(3) Penal Code – Curability of errors under Criminal Procedure Act – Substitution of conviction under s.178(1) – Sentence reduced to time served and immediate release ordered.
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15 October 2002 |
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Occupiers deriving possession from a dispossessed lessor cannot resist the applicant’s claim for vacant possession.
Property law – vacant possession; res judicata – misapplication by trial court; derivative possession – invitee cannot retain rights when lessor loses title; appellate review of retrial by District Court.
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11 October 2002 |
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11 October 2002 |
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Taxation of advocate’s bill, stay pending taxation and interest granted where respondent did not oppose.
Advocates’ Ordinance (ss.61–63) – Taxation of bill of costs – Taxation and certification of taxation costs – Stay of action pending taxation – Interest on advocates’ bill – Costs in the cause.
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11 October 2002 |
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Applicant’s bill of costs to be taxed by Taxing Officer; orders granted as prayed and costs to lie in the cause.
Advocates' Ordinance – taxation of a Bill of Costs – whether Bill and costs of taxation should be taxed by Taxing Officer. Civil procedure – stay of action pending taxation of costs. Interest on assessed costs – claim for interest included in chamber summons. Admission in principle by respondent – non-opposition as basis for granting relief.
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11 October 2002 |
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A visiting justice cannot file an appeal for an imprisoned appellant; appeal found incompetent and dismissed.
Criminal procedure – Appeal from custody – Locus standi of visiting justice – Compliance with s.363 Criminal Procedure Rules (1985) – Requirement of notice and proper forwarding by officer in charge of prison.
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11 October 2002 |
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Res judicata cannot bar an application for vacant possession; invitees gain no independent title once the inviter’s possession or title is invalidated.
Civil procedure – application for vacant possession – distinction between application and suit – limited scope of res judicata. Property law – invitee’s rights – invitee derives no independent title from inviter; rights extinguish when inviter loses possession or has no title. Appellate review – lower court may not re-try and overturn a prior High Court finding on ownership by misapplying procedural bars.
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11 October 2002 |
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Appellate court held custodial sentences improper without offering statutory fine option and suspended driving licence 12 months.
Sentencing — statutory option of fine or imprisonment — sentencing discretion — usual practice to offer fine first; imprisonment only in default unless sufficient reason for immediate custody; licence suspension for 12 months where no special cause shown.
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10 October 2002 |
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10 October 2002 |
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Order 1 Rule 10(2) strike-out application dismissed; preliminary objection belongs in pleadings or an Order VII Rule 11 rejection.
Civil procedure – Order 1 Rule 10(2) – removal/substitution of parties – limited to improper joinder – where defendant is sole party, application inappropriate; preliminary objections to plaint should be raised in defence or by Order VII Rule 11 – application dismissed with costs.
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9 October 2002 |
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Order 1 Rule 10(2) does not permit a sole defendant’s removal; objections belong in the main suit.
Civil procedure — Order 1 Rule 10(2) — removal or substitution of parties — limited to wrongly joined parties — sole defendant cannot be removed under O.1 r.10(2); preliminary objections to the plaint should be raised in the main suit; statutory vesting of liabilities issue to be determined in main proceedings.
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9 October 2002 |