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Citation
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Judgment date
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| November 2002 |
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29 November 2002 |
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29 November 2002 |
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A divorce court cannot order bride-price refund from non‑parties without hearing them; such claims require separate civil action.
Matrimonial law – divorce – bride-price (pride-price) restitution – non-parties and natural justice; Pleadings – issues must be pleaded before determination in divorce proceedings; Division of matrimonial property – absence of evidence requires separate civil action; Appellate confirmation of district court judgment.
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29 November 2002 |
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29 November 2002 |
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Prosecution failed to prove culpable negligence by captain, surveyor or port officers; all acquitted.
Criminal law — Manslaughter (s.195 Penal Code) — culpable negligence — causation; maritime law — seaworthiness certificate and ship surveyor’s role; evidentiary issues — reliability of passenger manifests and failure to call expert witnesses on stability.
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29 November 2002 |
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28 November 2002 |
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A statutory bar (s.148(5) CPA as amended) mandatorily prevents bail for persons charged with armed robbery despite personal circumstances.
Criminal procedure – Bail – Section 148(5) Criminal Procedure Act (as amended by Act No.12 of 1998) – Mandatory bar to bail for persons charged with armed robbery – Bail is not absolute and cannot override express statutory prohibition.
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27 November 2002 |
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Failure to take fresh pleas after substitution of charges rendered the trial a nullity; conviction and sentences quashed.
Criminal procedure – substitution of charge – arraignment – fresh plea must be taken (s.234(2) CPA 1985) – failure to take plea renders trial a nullity – juvenile accused – retrial left to DPP's discretion.
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27 November 2002 |
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Court allowed extension of time to file appeal after accepting misplacement of memorandum and finding arguable grounds of appeal.
Criminal procedure – extension of time to file appeal – notice of appeal lodged within 10 days – failure to institute appeal within 45 days – misplacement of memorandum in public office as sufficient explanation – arguable grounds of appeal on construction of Prevention of Corruption Act – extension granted.
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26 November 2002 |
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26 November 2002 |
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Applicant's unexplained delay in lodging notice and grounds of appeal justified dismissal of application for leave out of time.
Criminal procedure — application for leave to appeal out of time — section 361(a) Criminal Procedure Act, 1985 — failure to account for delay in lodging notice and filing grounds — dismissal for lack of satisfactory explanation.
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26 November 2002 |
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Applicant had no cause of action against the District Council; purchase permit for the public vehicle was withdrawn.
Public property – ownership and possession of government vehicle; Certificate/permit of allocation – validity and lawful withdrawal; Cause of action – claim against user versus owner; Administrative correspondence as evidence of revocation; Proper defendant and available remedy against true owner.
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25 November 2002 |
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Plaintiff cannot claim delivery of a government vehicle from the council; remedy lies against the vehicle’s owner (Central Government).
Public property – allocation certificate to purchase vehicle – withdrawal of allocation – effect on title and remedy – distinction between owner and possessor – no cause of action against district council.
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25 November 2002 |
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Appeal by a ward official against bribery convictions dismissed; evidence of solicitation and receipt of money found overwhelming.
Corruption — solicitation and receipt of gratification under the Prevention of Corruption Act — proof beyond reasonable doubt required and met by complainant and police corroboration. Evidence — recovery of money and matching serial numbers as strong corroboration. Procedural irregularities and minor contradictions — do not necessarily vitiate prosecution case where core evidence is credible. Official capacity — higher duty and sentencing relevance.
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25 November 2002 |
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Appeal dismissed as time‑barred because application for the copy of the order was made after the 90‑day limitation period expired.
Limitation of actions – Appeal time bar – s.19(2) Law of Limitation Act (exclusion for time to obtain copy of judgment/order) – application for copy must be made before expiry of limitation period – appeal dismissed under s.3(1) for being filed out of time.
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25 November 2002 |
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High Court upheld ten-year statutory sentence for adult and confirmed common-law authority to impose corporal punishment on juvenile.
Criminal law – Wildlife Conservation Act – sentencing – minimum ten-year imprisonment where prescribed – subordinate court’s sentence upheld. Sentencing law – statute silent on punishment – court may fall back on common law powers to impose fine, imprisonment or other permissible punishments. Juvenile sentencing – corporal punishment upheld where common law fallback applies. Revision – High Court will not interfere absent illegality or excessiveness.
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22 November 2002 |
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Plaintiffs’ suit dismissed for withdrawing an identical earlier suit without leave and failing to obtain required bankruptcy leave.
Civil procedure — Withdrawal of suit — Order XXIII r.1(1)–(3): withdrawal without court permission precludes instituting fresh suit; Bankruptcy Ordinance s.9(1) — mandatory leave to sue where required; Liquidator — acts as representative of company/appointing authority; Suit competency — compliance with winding-up and bankruptcy procedures.
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22 November 2002 |
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20 November 2002 |
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Conviction for robbery quashed where identification evidence was unreliable and seized money/confession lacked proper proof.
Criminal law – robbery with violence – identification evidence – reliability where witnesses at scene cannot identify attackers – absence of identification parade; Evidentiary proof of seized property – whether money found on accused proved to be proceeds of crime; Confession made before village authority (VEO) – admissibility and risk of coercion; Need for corroboration of accomplice/circumstantial evidence.
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20 November 2002 |
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20 November 2002 |
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Convictions quashed where vehicle owner was not proven to have participated and the burden of proof was improperly shifted.
Criminal law – sufficiency of evidence – owner’s liability where vehicle used in theft; conspiracy – requirement of common intention; burden of proof – prosecution’s duty and improper shifting to accused; appellate quashing of unsafe convictions.
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20 November 2002 |
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20 November 2002 |
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Late notice of appeal invalidated the appeal against conviction; a 30-year sentence imposed under later amendments was illegal and reduced to 15 years.
Criminal procedure – late notice of appeal under s.361(a) – appeal against conviction invalid; Penal law – application of amended sentencing provisions – non-retroactivity – sentence imposed under post-amendment maximum illegal; Sentence review – reduction of illegal term from 30 to 15 years.
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20 November 2002 |
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Failure to give statutory notice of intention to appeal renders the appeal invalid and leads to it being struck out.
Criminal procedure – Appeal – Mandatory notice of intention to appeal – Non‑compliance with s.214(1)(a) Criminal Procedure Act invalidates appeal and warrants striking out.
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20 November 2002 |
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19 November 2002 |
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Court affirmed mother’s custody of infant, applied s.125 Law of Marriage Act and stressed visitation rights alongside maintenance.
Matrimonial law – custody of infant – welfare of the child paramount – section 125 Law of Marriage Act 1971 – presumption that infants under seven stay with mother – visitation rights and maintenance obligations.
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19 November 2002 |
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16 November 2002 |
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A challenge to a Registrar’s taxation of costs was improperly brought to the High Court instead of being referred to the Tribunal Chairman under Rule 55; application struck out with costs.
Administrative procedure – Taxation of costs – Housing Appeals Tribunal Rules (1937) – Rule 55 permits referral of matters of law or principle from Registrar (as Taxing Officer) to Tribunal Chairman – challenge brought to High Court improperly instituted and struck out.
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15 November 2002 |
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Court affirmed rape conviction on medical and identification evidence, amended misquoted charge, and upheld mandatory 30-year sentence.
Sexual offences — Rape of a child — Proof of penetration may be established by medical evidence of bruising and blood — Identification: contemporaneous daylight identification and prompt arrest corroborative — Absence of semen not fatal — Misdescription of statutory subsection curable under procedural law — Mandatory minimum sentence for statutory rape.
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13 November 2002 |
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Circumstantial evidence must exclude all reasonable alternative hypotheses before supporting a conviction; appeal allowed and conviction quashed.
Criminal law – Theft – Conviction based on circumstantial evidence – Necessity to exclude all reasonable alternative hypotheses before drawing inference of guilt. Evidence – Circumstantial evidence – burden of proof beyond reasonable doubt; co‑existing circumstances may create reasonable doubt. Criminal procedure – Appeal – appellate intervention where conviction is against weight of evidence.
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12 November 2002 |
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Identification was reliable, alibi unproven, convictions upheld; first two appellants’ sentences increased to statutory thirty years.
Criminal law – Robbery with violence – identification of accused – reliability where victims were known to accused, lighting at scene and sufficient observation time. Criminal procedure – Defence of alibi – requirement to give statutory notice and call supporting witnesses. Evidence – Corroboration – credible eyewitness testimony does not require independent corroboration; investigating officer’s evidence may supply corroboration. Sentencing – Minimum Sentences legislation – appellate court may quash and increase sentence where statutory minimum applies.
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11 November 2002 |
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Application for extension dismissed where affidavit was unattested and representatives lacked authority.
Civil procedure — application for extension of time to appeal — supporting affidavit must be dated and attested — chamber summons must state legal basis — representative litigation requires proof of mandate — illness of one applicant does not excuse others' delay.
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8 November 2002 |
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Appellate court quashed robbery conviction due to contradictory identification evidence and prosecution’s withdrawal of support.
Criminal law – Robbery – Identification evidence – Material contradictions among prosecution witnesses – Prosecution declines to support conviction – Appeal allowed; conviction quashed; no order as to weapon recovered in separate transaction.
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8 November 2002 |
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Conviction quashed as unsafe due to misdescription of the offence and significant evidential shortcomings.
Criminal law – conviction for receiving/retaining stolen property – correct characterization under s.312 Penal Code (unlawful conveying or possession of suspected stolen property). Evidence – adequacy and contradictions in prosecution witnesses; failure to call material witnesses. Criminal procedure – effect of prosecution declining to support conviction on appeal; sufficiency of defence to raise reasonable doubt regarding third‑party involvement.
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8 November 2002 |
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Delay in obtaining a judgment copy does not automatically extend the statutory appeal period; extension must be sought under section 25 proviso.
Civil procedure – appeals from subordinate courts – time limits under section 25(1)(a) of the Magistrates Courts Act – exclusivity over Limitation Act. Extension of time – proviso to s.25(1)(a) empowers High Court to extend time before or after expiry; delay in obtaining judgment copy is not automatically excluded. Remedy for late supply of judgment copy – apply for extension of time to High Court or Court of Appeal.
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8 November 2002 |
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Appeals under s.25(1)(a) are time‑bound; delay obtaining a judgment copy does not excuse failure to seek statutory extension.
Magistrates Courts Act s.25(1)(a) – statutory thirty-day appeal period – time mandatory; Limitation of Actions Act not applicable; delay in obtaining copy of judgment does not automatically exclude time – remedy is application for extension under proviso; court dilatoriness may justify extension if applicant acted diligently.
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8 November 2002 |
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Time spent obtaining copies of a judgment does not automatically extend the statutory period for filing an appeal; extension must be sought.
Civil procedure — limitation of time for appeals — Magistrates Courts Act s.25(1)(a) — 30‑day rule to High Court; Time spent procuring copies of judgments — not automatically excluded from limitation; Remedy — application to High Court for extension of time (proviso to s.25) — must show good and justifiable reason; Public policy — preventing abuse by claiming delay to obtain copies; Review — dismissal where appeal was time‑barred and no extension sought.
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8 November 2002 |
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An appellate court may not order retrial solely for failure to frame issues absent a failure of justice.
Civil procedure – appeal and remittal – omission to frame issues – omission not fatal unless it causes failure of justice – appellate power to order new trial must be justified; principles governing fresh trials (Ladd v Marshall).
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6 November 2002 |
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Omission to frame issues is not automatically fatal; remittal to appellate court to decide merits, not retrial.
Civil procedure – appellate review – quashing proceedings and ordering trial de novo; Failure to frame and record issues – not fatal unless causing failure of justice; Proper remedy is appellate decision on merits before ordering retrial.
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6 November 2002 |
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Appellate court wrongly disturbed trial finding that land was pledged; trial court's factual finding reinstated with costs.
Land law — pledge versus sale of land; appellate review of factual findings — limited interference where trial court's credibility assessments are supported by evidence; restoration of trial court judgment.
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6 November 2002 |
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Appeal dismissed for failure to prove joint ownership of funds and insufficient evidence in post-divorce property claim.
Family law – divorce – primary court procedure – divorce, division of matrimonial property and custody/maintenance should be determined together where applicable. Civil claims over alleged jointly owned funds – requirement of evidence to prove joint ownership of bank deposits. Evidence – parental testimony admissible to show parental financial assistance; cultural generalisations not conclusive. Appellate review – absence of proof justifies dismissal of monetary claim following divorce proceedings.
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5 November 2002 |
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Concurrent factual findings that appellant trespassed on respondent’s land will not be disturbed absent miscarriage of justice.
Land law – boundary dispute – concurrent findings of fact by Primary and District Courts after locus visit – appellate restraint: will not interfere absent misapprehension of evidence, miscarriage of justice or violation of principle; credibility of assessor and court broker evidence.
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5 November 2002 |
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A valid will must be respected; courts may not reallocate estate property for fairness if testament is clear and valid.
Wills and succession – testamentary freedom – validity and effect of a clear will – courts cannot alter testamentary dispositions due to perceived unfairness when testator was of sound mind.
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5 November 2002 |
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Conviction for rape upheld on identification and medical evidence but reclassified and sentence reduced due to Act’s non‑commencement.
Criminal law – Rape – Identification in daylight and medical evidence sufficient to prove penetration and perpetrator. Sexual Offences (Special Provisions) Act 1998 – Inapplicability to offences committed before commencement (1 July 1998). Consent immaterial for sexual intercourse with a child under 18. Forensic sperm comparison not essential where direct identification and medical evidence prove offence.
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4 November 2002 |
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Whether a motorcycle at the appellant’s premises was a pawn securing a loan or unencumbered estate property; court restored Primary Court finding it was pawn.
Probate and administration – administrator’s claim to estate property – whether property in third-party possession was pledged by deceased or formed part of the estate – appellate review of factual findings on pledge/possession.
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4 November 2002 |
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Court appointed a receiver to protect and realize mortgaged property after judgment on admission and debtor’s default.
Civil Procedure – Execution – Appointment of receiver under Order XXXVIII r.1(1)(a) and sections of CPC – judgment on admission and debtor’s default – debenture permitting appointment – receiver to protect mortgaged property and enable tender sales.
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1 November 2002 |
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Appellant's rights limited to original house plot; later occupation of adjoining land was trespass and appeal dismissed.
Land law – grant of a limited house plot by an owner and subsequent sale of remaining land to a third party – proprietor's discretion to sell remaining land. Property rights – limits of occupation derived from a gratuitous grant; expansion after death amounts to trespass. Civil procedure – admissibility of witness evidence irrelevant where original owner's credible testimony establishes boundaries.
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1 November 2002 |
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The appellants' guilty-plea procedure and sentencing were flawed; convictions quashed and appellants discharged.
Criminal procedure – Pleas of guilty – Necessity to explain charge, record plea in accused’s own words, prosecution to state detailed facts, accused to admit facts before conviction; Sentencing – Where statutory alternative of fine exists, fine should ordinarily be imposed unless justified reasons for imprisonment; Forfeiture/confiscation – property to be restituted where orders set aside.
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1 November 2002 |
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Guilty pleas were improperly recorded and imprisonment imposed despite available fines—convictions quashed and property restituted.
Criminal procedure – Plea-taking – requirement that charges be explained in a language the accused understands; plea to be recorded in accused's own words and elaborated beyond "that is true". Criminal procedure – Requirement that prosecutor state detailed facts and accused admit facts before conviction on guilty plea is entered. Sentencing – Where statute provides alternative of a fine, courts should impose fine absent circumstances justifying imprisonment. Property – Forfeiture/confiscation set aside and restitution ordered.
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1 November 2002 |