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Citation
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Judgment date
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| March 2002 |
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28 March 2002 |
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High Court affirms concurrent findings that respondent's father owned the land and village authority exceeded its powers; appeal dismissed.
Land law – ownership of customary land; allocation by village authority – excess of authority; appellate review – deference to concurrent findings of fact supported by probative evidence; requirement of fatal irregularity to justify interference.
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26 March 2002 |
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26 March 2002 |
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Conviction quashed where weak identification and denial of cross‑examination (and inadequate child‑witness voir dire) made the trial unfair.
Criminal law – grievous harm – sufficiency of identification evidence; reliability of identification made in darkness and when complainant was asleep. Evidence – right to cross‑examination under section 147(1) of the Evidence Act; trial court cannot deny cross‑examination. Evidence – child witnesses and voir dire – necessity to properly determine competence/credibility. Procedural irregularities and weak identification render a conviction unsafe.
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26 March 2002 |
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Convictions quashed where identification was unreliable and retracted caution statements lacked proof of voluntariness.
Criminal law – Armed robbery – Identification evidence – Reliability and sufficiency of witness identification – Caution statements – Retraction and requirement of trial within a trial to prove voluntariness – Unsafe conviction quashed.
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25 March 2002 |
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25 March 2002 |
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Challenge to military disciplinary conviction dismissed for non‑compliance with statutory time limits and mandatory notice.
Administrative law – prerogative orders – time limits under section 18 of the Law Reform (Fatal Accidents and Misc.) Ordinance; National Defence Act s.62 – six‑month limitation for challenging military disciplinary decisions; Government Proceedings Act s.6(2) – mandatory 90‑day prior notice to sue the Government; excuses for delay (imprisonment/preparation/prejudice to evidence) insufficient to excuse non‑compliance.
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22 March 2002 |
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Application to set aside mortgage sale dismissed for want of prosecution and for lacking legal standing.
Civil procedure – Order XXI and rules cited – application to set aside sale of attached property; Mortgage sale v. sale in execution – standing to object; Dismissal for want of prosecution – failure to comply with court timetable; Inapplicability of execution rules to mortgage-initiated sale.
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22 March 2002 |
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Application to set aside sale dismissed for want of prosecution and lack of standing; sale arose under a mortgage.
Civil Procedure — Order XXI — objection to sale of attached property — standing to challenge sale — mortgage sale versus sale in execution — dismissal for want of prosecution.
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22 March 2002 |
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Application to set aside sale dismissed for want of prosecution and lack of standing.
Civil procedure – attachment and sale of property – distinction between sale under court order and sale under mortgage contract – locus standi to object – dismissal for want of prosecution.
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22 March 2002 |
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22 March 2002 |
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22 March 2002 |
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Application to set aside mortgage sale dismissed for want of prosecution and lacking legal standing.
Civil procedure — dismissal for want of prosecution; Application under Order XXI — applicability limited to sales in execution of court decrees; Mortgage sale versus sale in execution; Standing and competence of chamber application to set aside private mortgage sale; Costs awarded for failure to prosecute and for misconceived application.
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22 March 2002 |
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Plaint was rejected for failing to plead essential facts establishing an intellectual property cause of action.
Intellectual property – Pleading requirements – Whether plaint discloses cause of action for alleged unlawful use of technology; Civil procedure – Verification of pleadings (Order VI Rule 15), curability by amendment (Order VI Rule 16); Pleadings – Contents required by Order VII Rule 1(e) and rejection under Rule 11(a); Government Proceedings Act – Joinder of Attorney‑General and status of contractors as agents; Non‑joinder and legal personality of defendants.
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22 March 2002 |
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Police officers cannot be lawfully retired "in the public interest"; such retirements were wrongful and damages awarded.
Administrative law – Presidential authority to terminate police service – distinction between Civil Service Act and Police Force and Prisons Service Commission Act – "retirement in the public interest" not available to police officers; remedies for wrongful administrative retirement; damages awarded.
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21 March 2002 |
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Reported
In the premises, I do hereby strike out with costs Commercial Case Number 287 of 2001. This Court has no jurisdiction to entertain this suit. It is accordingly ordered. |
20 March 2002 |
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No appeal lies from the District Court in Ward Tribunal matters; appeal dismissed for want of jurisdiction and merits.
Ward Tribunals Act s.20 – Appellate jurisdiction – District Court as final appellate forum for Ward Tribunal matters; s.20(3) – requirement to show point of law; no further appeal to High Court.
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19 March 2002 |
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High Court lacks jurisdiction to hear further appeals from District Court decisions under section 20 of the Ward Tribunals Act.
Ward Tribunals Act s.20(3) — appellate jurisdiction — District Court as final appellate forum — no further appeal to High Court.
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19 March 2002 |
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Court refused to dismiss leave-to-appeal application for non-appearance, finding dismissal not in interests of justice.
Civil procedure — Non-appearance at hearing — Order 33 Rule 17(1) CPC — dismissal for non-appearance — discretion of court — interests of justice where advocate absent and relative attends.
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19 March 2002 |
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Ignorance defence fails if reasonable diligence would reveal marriage; damages reduced where spouses were living apart.
Family law – Adultery – Suit for damages under s.72 Law of Marriage Act 1971 – Defence of ignorance and reasonable diligence requirement. Assessment of damages for adultery – s.74 Law of Marriage Act 1971 – relevance of community custom and whether spouses were living together or apart.
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19 March 2002 |
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Appellate court quashed lower court judgment for failure to join the Government, lack of proof of Village Council’s corporate capacity, and procedural defects.
Land law – allocation by Land Office – necessity of joining Government/Attorney General where title depends on official allocation. Corporate capacity – Village Council’s ability to sue/be sued depends on proof of registration, certificate of incorporation and Gazette publication. Civil procedure – validity of judgment – judgment must be written and signed by the presiding judge/magistrate. Remedy – quashing of proceedings and judgment where procedural and jurisdictional defects materially affect outcome.
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15 March 2002 |
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Court dismissed suit on a tax/customs dispute because statutory appeal routes under Act No.15/2000 must be exhausted first.
Tax law – assessment disputes – Tax Revenue Appeals Act No. 15 of 2000 – role of Tax Appeals Board/Tribunal and statutory remedies; Jurisdiction – "sole original jurisdiction" of Tax Appeals Board and effect on High Court proceedings; Administrative remedies – requirement to exhaust statutory appeal mechanisms before civil litigation; Declaratory relief – appropriateness where statutory remedies available.
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15 March 2002 |
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Credible police evidence established awareness and control of a small quantity of heroin; accused convicted but conditionally discharged.
Drugs Act – unlawful possession – elements of possession (awareness and control) – credibility of arresting officers – chain of custody and Government Chemist’s report – conditional discharge for small quantity and lengthy remand.
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15 March 2002 |
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Appeal dismissed where unresolved land ownership dispute undermined proof of theft.
Criminal law – Theft – Proof of ownership – Unresolved dispute over land ownership undermines prosecution’s case – Acquittal upheld on appeal.
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13 March 2002 |
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The High Court dismissed an appeal because the appellant must first seek restoration in the District Court after his appeal was struck out for non‑appearance.
Civil procedure – Appeal procedure – Appeals from Primary Court – Requirement to proceed via District Court as intermediate appellate forum before High Court entertains further appeal. Civil procedure – Striking out for want of prosecution – Appellant’s remedy is to apply to the District Court to restore the appeal where good cause for non‑appearance is shown. Appellate jurisdiction – High Court as second appellate court – lacks jurisdiction to hear matters bypassing the District Court.
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13 March 2002 |
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Trial court lacked jurisdiction to hear application to stop execution sale because the judgment-debtor had lodged a notice of appeal.
Civil Procedure – Execution – Intended sale of mortgaged property – Third-party claim by purported spouse under Order XXI Rules 57–59 CPC and s.59 Law of Marriage Act – requirement to prove marital/proprietary interest. Appellate procedure – Effect of notice of appeal/pendant appellate proceedings on trial court’s jurisdiction to entertain further proceedings or interlocutory applications arising from the judgment. Proof of third-party interest – search of land register and evidential burden on claimant.
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12 March 2002 |
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12 March 2002 |
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Prosecution without required DPP consent for an economic offence deprived the trial court of jurisdiction, nullifying convictions.
Criminal law – Jurisdiction – Prosecution of economic offences requiring prior consent of the Director of Public Prosecutions under Economic Offences Act No. 31 of 1997 – Lack of statutory consent renders proceedings a nullity; conviction and sentence quashed. Criminal procedure – Effect of jurisdictional defect – whole trial vitiated. Evidence/Exhibits – Order for destruction of exhibit not disturbed.
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11 March 2002 |
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Prosecution without required DPP consent under Economic Offences Act vitiates jurisdiction; conviction quashed, sentence set aside.
Jurisdiction – Prosecution commenced without statutory consent of the Director of Public Prosecutions under the Economic Offences Act – Lack of consent renders trial proceedings, conviction and sentence a nullity; effect on co-accused; exhibit destruction order preserved.
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11 March 2002 |
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Whether issuing a dishonoured cheque and failing to make good within eight days constitutes kite‑flying under section 332(B).
Criminal law – Cheques – "Kite‑flying" (s.332(B) Penal Code) – Elements: issuance of cheque, dishonour for insufficiency of funds, service of notice, failure to make good – proof required to convict.
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11 March 2002 |
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Conviction for robbery with violence quashed due to inadequate evidence and improper reliance on hearsay; sentence set aside.
Criminal law – Robbery with violence – sufficiency of evidence – failure to call material witnesses and reliance on hearsay; Admissibility of exhibits – late admission under section 195 Criminal Procedure Act; Sentencing – disproportionate sentence for first offender.
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11 March 2002 |
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Applicant failed to justify a two‑year delay or produce supporting evidence; leave to appeal out of time dismissed.
Criminal law – Conviction for rape of a child under 14 – application for leave to appeal out of time. Appeal procedure – Requirement to show cause for delay and to produce evidence (e.g. notice of intention to appeal, prison communications) when seeking extension of time. Evidence – Absence of affidavits or record of communication from prison authorities undermines claim of circumstances beyond applicant's control.
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11 March 2002 |
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Applicant failed to prove notice of intention to appeal or explain the two‑year delay; leave to appeal out of time denied.
Criminal procedure – application for leave to appeal out of time – requirement to show notice of intention to appeal and obtain copy of judgment – practice for prison keeper to request judgment copy – need for corroborative evidence (e.g. affidavit by prison officer) and adequate explanation for delay.
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11 March 2002 |
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Application for extension of time to appeal dismissed for unexplained delay and contradictory explanations.
Criminal procedure – extension/enlargement of time to appeal – requirement to account for delay; credibility of applicant – effect of inconsistent sworn and unsworn statements; illness as excuse for delay – only persuasive if it explains the period when time first accrued; section 361(a) Criminal Procedure Code – strict compliance with ten-day notice period.
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11 March 2002 |
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An appeal filed outside the statutory period without prior extension is time-barred and must be struck out; a formal chamber summons for extension may be filed.
Criminal procedure – Appeal time limits – Section 361(a) notice of intention to appeal – Effect of filing appeal out of statutory time – Requirement to apply by chamber summons for enlargement of time.
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11 March 2002 |
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Appeal filed more than a year late was struck out; appellant must seek enlargement of time by chamber summons.
Criminal procedure – Appeal – Notice of intention to appeal – strict compliance with time limits – appeal filed out of time – appeal struck out – remedy by formal application for enlargement of time by chamber summons.
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11 March 2002 |
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Applicant’s challenge to dismissal dismissed; Manager lawfully exercised delegated disciplinary authority and administrative decisions upheld.
Labour law – dismissal and disciplinary authority – delegation of hiring/firing powers under University Act – Manager’s jurisdiction to discipline employee of subsidiary institution; Administrative law – judicial review by certiorari – whether decisions of Conciliation Board and Minister were perverse or erroneous; Institutional governance – University Council’s valid delegation of powers to officers and managers.
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11 March 2002 |
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Extension of time to appeal denied where inordinate delay was unexplained and alleged illness lacked medical proof.
Criminal procedure – extension of time to appeal – notice of intention to appeal filed out of time – requirement to account for delay – medical evidence where illness relied upon.
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11 March 2002 |
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Accused convicted of murdering his wife based on a child's eyewitness account corroborated by circumstantial evidence.
Criminal law – Murder; Evidence – unsworn child eyewitness testimony; requirement and sufficiency of corroboration; circumstantial evidence and conduct of accused; rejection of third‑party attacker defence; sentence – death by hanging.
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11 March 2002 |
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Debt for unpaid petroleum supplies established by account records and defendant’s admission; judgment and interest awarded to the plaintiff.
Contract/sale of goods – supplies of petroleum – dishonoured cheques – proof of debt by account statements and receipts – admission by debtor – entitlement to judgment and contractual interest; costs awarded.
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8 March 2002 |
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An appellant’s appeal filed beyond the statutory 30-day period is time-barred and dismissed with costs.
Appeal–time bar–appeal from District Court to High Court must be lodged within 30 days (Magistrates' Courts Act, 1984 s.25)–late appeals are dismissed; concurrent findings of fact by subordinate courts afforded weight where supported by concrete evidence.
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8 March 2002 |
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An appeal filed 35 days after the 30-day statutory period under section 25 is time-barred and therefore dismissed with costs.
Civil procedure – appeal periods – section 25 Magistrates Courts Act – appeal to High Court must be filed within 30 days; appeal filed after the period is time-barred and dismissible. Appeals – effect of concurrent findings of fact by lower courts – appellate prospects limited where findings are supported by concrete evidence.
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8 March 2002 |
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Taxing master reduced and disallowed unsupported or unreasonable cost items, allowing only properly evidenced amounts.
Taxation of costs – sufficiency of receipts for instruction fees – statutory scale for court attendance (G.N. 515/1991) – credibility and authenticity of disbursement receipts – allowance of travel and subsistence – taxing off unsupported or inconsistent items.
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8 March 2002 |
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Applicant’s substantive challenge dismissed for being supported by an affidavit of legal argument, not facts, and for procedural default.
Civil procedure – competency of application – supporting affidavit must contain facts within deponent’s knowledge for substantive applications (Order XIX r.3(1)); scheduling of written submissions forms part of hearing – non‑compliance attracts default; ex parte judgments and taxation may require appeal or reference where appropriate.
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8 March 2002 |
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Objection to attachment dismissed: objector failed to prove ownership and attachment was validly executed in satisfaction of the decree.
Execution — Attachment of goods — Ownership dispute — Objection proceedings — Credibility of affidavit evidence and receipts — Proper procedure for execution and attachment upheld.
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8 March 2002 |
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Objection to attachment dismissed; court found seized cattle belonged to judgment debtor and execution was valid.
Execution of decree – Attachment of movable property – Ownership dispute over seized cattle – Evidential weight of contemporaneous receipts and presence of village/police – Credibility and timing of objections to seizure – Objection to attachment dismissed.
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8 March 2002 |
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An unregistered matrimonial interest does not prevent a valid mortgagee sale; joinder denied for lack of common issues.
Civil procedure — Joinder: Order 1 r10(2) CPC and requirement of common questions under Order 1 r3; Family law — Section 59(1) Law of Marriage Act: matrimonial home interest is registrable and protected by caveat/caution; Land registration — unregistered interests do not bind mortgagees; Mortgagee rights — valid mortgage and sale where no caveat is registered.
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7 March 2002 |
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Failure to pay filing fees and vague statutory citation rendered a revision application incompetent despite possible excess of jurisdiction by the subordinate court.
Revision — section 79 Civil Procedure Code — High Court power to call records where subordinate court exercised jurisdiction not vested in it, failed to exercise vested jurisdiction, or acted illegally/with material irregularity; Filing fees — failure to pay renders application incompetent absent statutory exemption; Pleading and citation — enabling statute must be specifically cited; vague references insufficient; Execution of ministerial reinstatement — subordinate court varying reinstatement to general damages may exceed jurisdiction and be revisable under s.79.
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6 March 2002 |
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Termination in the public interest without complying with Regulation 44 is unlawful; employees reinstated with back pay.
Employment law – Termination in the public interest – Regulation 44 (Local Government Service Commission Regulations) – procedural fairness; Employment law – Retrenchment/redundancy – requirement for statutory consultation (Security of Employment Act) – pleaded and proven basis; Remedy – reinstatement with back pay; Claims for general damages – evidentiary basis required.
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6 March 2002 |
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Termination in the public interest without complying with statutory procedures is unlawful; employees reinstated with back pay.
Employment law – Termination in the public interest – Local Government Service Staff Regulations (Regulation 60) – procedural safeguards and right to be heard; failure to comply renders termination void ab initio. Employment law – Retrenchment vs retirement – redundancy requires statutory consultation (Security of Employment Act s.6(1)(g)); absence of evidence or pleading of retrenchment precludes relief on that ground. Remedies – unlawful termination remedied by reinstatement and back pay; damages claim dismissed for lack of evidence.
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6 March 2002 |