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Citation
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Judgment date
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| December 2004 |
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29 December 2004 |
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An ex parte injunction restrained the respondent from enforcing a new rent increase pending determination of an earlier challenge.
Civil procedure – Interim injunction (ex parte) – Rent increase – Pending suit challenging prior rent increase – Abuse of court process – ss. 95 and 68(c) Civil Procedure Code, 1966.
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29 December 2004 |
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Specific performance granted after vendor disappeared; damages refused for lack of proof.
* Land — Contract for sale of land — existence and terms of contract proved by affidavits and magistrate-witnessed document — entitlement to specific performance. * Specific performance — appropriateness where vendor disappears after partial payment and transfer not effected. * Damages — claim for special/anticipated losses requires specific proof; absence of such evidence defeats claim. * Interim or supplementary relief — premature where part of purchase price remains unacknowledged despite funds deposited in court.
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28 December 2004 |
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Specific performance ordered where plaintiff proved contract and payment on the balance of probabilities; damages not proved.
* Contract law – sale of land – existence and performance of contract – specific performance granted where contract proved on balance of probabilities; * Evidence – affidavits and documentary proof sufficient to establish entitlement to equitable relief; * Remedies – specific performance granted; claim for special damages not proven and dismissed; * Procedure – substituted service and ex parte proceedings allowed where defendant cannot be traced.
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28 December 2004 |
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22 December 2004 |
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Whether circumstantial and forensic evidence proved the accused’s participation in a bombing conspiracy.
Criminal law – Conspiracy to murder – Circumstantial evidence – Requirement to exclude every reasonable hypothesis of innocence – Forensic evidence and risk of contamination – Association and shared use of property insufficient to prove guilt.
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22 December 2004 |
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Reported
Terrorism - Conspiracy to commit murder -Accused had no knowledge of plans and activities of conspirators - Whether there is a basis for inferring guilt of accused.
Criminal law - Terrorism - Conspiracy to commit murder - Accused had no knowledge of plans and activities of conspirators - Whether there is a basis for inferring guilt of accused.
Evidence - Circumstantial evidence - Accused was a friend of conspirators — Accused had no knowledge and activities of conspirators - Whether accused guilty of conspiracy to commit murder. |
22 December 2004 |
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Court lacks jurisdiction due to insufficient pecuniary claims in plaintiff's pleadings, suit struck out.
Land law – property disputes – locus standi – pecuniary jurisdiction – procedural requirements in land disputes.
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20 December 2004 |
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Failure to plead required land value ousts Land Division jurisdiction; separate preliminary‑objection notices contravene procedural rules.
Civil procedure – preliminary objections – notice of preliminary objection filed separately contravenes Order VIII Rule 2 and may be disregarded; Locus standi – challenges based on authority/heirs require evidential resolution; Land jurisdiction – section 37 Act No.2 of 2002 requires pleading the monetary value of land-related claims for High Court (Land Division) pecuniary jurisdiction; Failure to plead value may lead to striking out plaint rather than merit dismissal.
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20 December 2004 |
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Fine and forfeiture set aside: shotgun not covered by s.71 and compounding officer lacked authority.
Criminal law – Wildlife Conservation Act s.71 (possession offences) – statutory items and required circumstances; compounding of offences – authority under s.82(2); admissibility/voluntariness of composition form signature.
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20 December 2004 |
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A fine and forfeiture from a compounding under s.71 were set aside where a shotgun was not covered and the compounding lacked legal basis.
* Wildlife law – compounding of offences – requirements and limits of compounding under section 82 and section 71 of the Wildlife Conservation Act; * Statutory interpretation – section 71 covers ball ammunition, poison, snare or trap, not a shotgun; * Validity of compounding – necessity of facts showing use or intent and proper legal authority to compound; * Procedural fairness – coercion to sign composition form and evidential inference from witness signature
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20 December 2004 |
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Commercial court has admiralty jurisdiction, but a fresh suit on the same ship ownership issue is barred as res judicata and abuse of process.
* Commercial jurisdiction – admiralty and ownership of merchant vessels under Rule 2 GN.141/1999. * Res judicata – interlocutory rulings and estoppel by judgment where same parties, issues and object are involved. * Abuse of process – instituting fresh proceedings while related main suit is pending. * Procedure – limited application of Order XXI Rule 62 (execution-stage) versus Order XXXVI Rule 9 (interlocutory disposal).
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20 December 2004 |
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Convictions quashed due to unsafe nighttime identification and insufficient proof of conspiracy; defence inadequately considered.
* Criminal law – Visual identification – Night-time identification by motorcycle beam or torchlight – necessity to exclude all possibilities of mistaken identity.
* Criminal law – Burden and sufficiency of proof – conspiracy – requirement to prove accused were present at alleged time/place of conspiracy.
* Evidence – Assessment of defence evidence – duty of trial court to analyse and weigh defence against prosecution case.
* Evidence – Proof of ownership/possession of stolen property and linkage of alleged weapon to accused.
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17 December 2004 |
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Uncertified payment vouchers insufficient to prove disbursements; most bill items disallowed and total taxed at Shs.103,500.
Taxation of costs – sufficiency of proof for disbursements – uncertified photocopies of payment vouchers inadequate; payments to non-parties (witness) not recoverable in decree holder’s bill; advocate’s fee reduced having regard to claim value and issues.
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17 December 2004 |
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Conviction for theft by agent quashed where prosecution failed to prove stealing beyond reasonable doubt amid inconsistencies and hearsay.
Criminal law – Stealing by agent – burden of proof – inconsistencies in prosecution evidence – inadmissible hearsay – civil creditor–debtor arrangement vs criminal mens rea.
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17 December 2004 |
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17 December 2004 |
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Application to amend plaint to add new defendant and claims dismissed as afterthought; eviction order granted to expedite justice.
Civil procedure – Amendment of pleadings under Order VI r 17 – Amendment permissible to determine real questions but not to introduce new cause of action after court has determined core controversy; afterthought amendments and prejudice to existing parties; interlocutory rulings and timeliness; eviction order granted to expedite justice.
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16 December 2004 |
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Late application to amend pleadings to challenge a completed auction sale was dismissed as an abuse of process.
Civil procedure – Amendment of pleadings (Order VI r17 CPC) – discretion to allow amendments but not to defeat ends of justice – delay and abuse of process – challenging auction sale and registration after transfer – injunction inappropriate after registration.
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16 December 2004 |
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Court remitted parts of an arbitration award for reconsideration due to lack of reasons and proof for specific damages.
* Arbitration — Award — Failure to give reasons for monetary awards — Court may remit award under s.14 Arbitration Ordinance for reconsideration.
* Specific damages — Requirement of specific proof — Arbitrator must state basis and reasons for specific loss awards.
* Scope of reference — Setting out reliefs in the award consequential; not automatically misconduct.
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16 December 2004 |
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Remanding an individual for non-appearance of a corporate accused is unlawful; companies cannot be imprisoned.
* Criminal procedure – remand – remanding an individual for non-appearance of a corporate accused; * Corporations – a body corporate cannot be imprisoned; * Natural justice – obligation to hear person before curtailing personal liberty; * Remedies when a corporate accused fails to appear – ex parte proceedings or contempt, not imprisonment of officers.
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15 December 2004 |
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Confession evidence excluded for statutory breaches and coercion; accused discharged.
Criminal procedure – admissibility of confessions – voluntariness – prolonged detention and intimidation – statutory interview periods (Criminal Procedure Act 1985, ss.50–51) – status of Honorary District Magistrate vis‑à‑vis Justice of the Peace (Magistrates Courts Act 1984).
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15 December 2004 |
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Whether a purchase order containing an arbitration clause constitutes an enforceable agreement to arbitrate.
Arbitration — enforceability of arbitration clause — purchase order vs bilateral contract — submission to arbitration — Arbitration Ordinance; stay of proceedings — document characterization; Law of Contract Ordinance considerations.
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15 December 2004 |
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An injunction against the respondent was refused because a government demolition notice rendered relief futile.
* Temporary injunction — application to restrain eviction and interference with business operations under a marketing licence
* Road reserve / public land — allegation premises occupy road reserve; TANROADS demolition notice
* Futility of relief — interim order inappropriate where third‑party governmental demolition may supersede
* Balance of convenience and irreparable harm — injunction refused where relief would be ineffective
* Proper defendant for injunctive relief — injunction should target the party with enforceable control over the land
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15 December 2004 |
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Where two sales conflict, the earlier valid sale prevails; unreliable seller testimony defeated the later purchaser's claim.
* Land law – competing sales – priority of sale – earlier valid sale prevails over subsequent sale. * Evidence – credibility of vendor – inconsistent testimony undermines purchaser’s claim. * Civil procedure – appellate review – when appellate court may reverse trial court despite locus in quo inspection.
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14 December 2004 |
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Convictions quashed where trial record lacked arrest, seizure and caution-statement compliance; retrial ordered under a new magistrate.
* Criminal procedure – adequacy of trial record – requirements for convictions to rest on unequivocal facts. * Evidence – cautions/confessions – whether statements were read to accused and compliance with s.127 Evidence Act, 1967. * Chain of custody – proof of arrest and seizure circumstances for exhibits. * Remedy – convictions quashed and retrial ordered where material procedural and evidentiary gaps exist.
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14 December 2004 |
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Supplier awarded damages and interest for unlawful premature termination and continued use of installed equipment.
Contract law – supply/lease agreement – supplier’s obligation to install and maintain equipment; unlawful premature termination without contractual notice; assessment of damages for lost profit, equipment value and renovations; failure to plead set‑off with particulars; inadmissibility of damages for advertising/signpost not authorised by contract.
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14 December 2004 |
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High Court has jurisdiction over a commercial claim exceeding the District Court threshold; preliminary objections dismissed.
Commercial law – Pecuniary jurisdiction – Effect of Act No. 4 of 2004 limiting District Court commercial jurisdiction to shs 30,000,000; High Court jurisdiction for greater claims; Cause of action – plaint and annexures read together disclose a probable claim; Interest claimed may be included in assessing pecuniary jurisdiction; Preliminary objections on particulars/legibility inappropriate at jurisdictional stage.
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14 December 2004 |
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Reported
Banking law - Loan facility - Loan Agreement not stating whether interest to be charged is “simple interest” but the bank charges “compound interest” - Whether the charging of compound interest is lawful.
Banking — Loan facility — Compound interest charged on loan facility — Compound interest defined. |
13 December 2004 |
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Conviction for arson upheld on identification and credibility; fourteen-year subordinate-court sentence quashed as ultra vires, reduced to four years.
* Criminal law – Arson – Identification evidence – admissibility and sufficiency where accused admits presence and distinctive clothing matched witness description. * Criminal procedure – Sentencing – Limits of subordinate court sentencing powers under section 170 Criminal Procedure Act; sentence ultra vires and excessive. * Appeal – conviction upheld but sentence varied.
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13 December 2004 |
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Court allowed tender of unstamped agreements after defendant failed to produce originals, applying Evidence Act presumptions.
Evidence Act — ss.64, 67(1)(a)(iii), 98 — admissibility of documents — originals produced by one uniform process — notice to produce — presumption documents called for and not produced were duly attested, stamped and executed.
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13 December 2004 |
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Applicants supplied goods during receivership; only the receiver and the company, not the purchaser or debenture holder, may be liable.
Commercial law – receivership and sale of assets; application of sale proceeds and priority of preferential creditors; liability of purchaser versus receiver; receiver as agent of company under debenture; evidence – admissibility of delivery notes; remedies against receiver and company for unpaid supplier claims.
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13 December 2004 |
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Appellate court quashed conviction where evidence was weak, substituted charge unclear, and trial magistrate failed to scrutinise evidence.
* Criminal law – Corruption/false pretences – Sufficiency of evidence to prove solicitation or receipt – where money received by another person, prosecution must prove receipt on accused's behalf.
* Criminal procedure – Substitution of charge – record must clearly reflect any substitution; unclear substitution may render conviction unsafe.
* Appeal – Trial court's failure to scrutinise evidence can render conviction unsafe and justify quashing and acquittal or setting aside conviction.
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10 December 2004 |
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Sale set aside because auctioneer sold whole plots contrary to court order and out-of-court payments were not certified per Order XXI CPC.
* Execution of decrees – Order XXI, Rules 1–2 CPC – requirement that out-of-court payments be certified/recorded by Court to be effective. * Payment to decree-holder – effect of informal notice to auctioneer versus formal certification to Court. * Auction/sale – extent of property sold – auctioneer’s authority limited by court order; sale in excess of order is voidable and may be set aside. * Remedies – setting aside sale, refund of purchase money, allocation of aborted-auction costs.
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10 December 2004 |
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Appellant's two‑year sentence for abusive language exceeded six‑month statutory maximum; appeal allowed and appellant released.
Criminal law – Sentencing – Section 89(1)(a) Penal Code (abusive/insulting language) – statutory maximum six months – appellate variation of illegal/excessive sentence.
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10 December 2004 |
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An internal bank write‑off does not extinguish debt; borrower and guarantors remain liable, High Court retains jurisdiction.
Banking law – internal off‑balance sheet write‑off does not extinguish borrowers' liability; estoppel inapplicable. Recovery – account statements and contractual rate govern interest calculation. Guarantors – liability coextensive with principal debtor; suing principal does not discharge guarantors. Debenture enforcement – realization ancillary to commercial claim; Commercial Division has jurisdiction despite s.167 Land Act. Remedies – decretal interest at 7% and enforcement (sale/vacant possession) if unpaid.
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10 December 2004 |
Banking - Debtors - Discharging a debtorfrom liability - Whether the bank’s
internal mechanism of'writing offdebts or losses discharges a debtorfrom ®
liability.
Banking - Securities - Debenture - Whether guarantors discharged upon the
debtor failing to excise options provided in a debenture.
Banking — Securities - Guarantee - Whether guarantors discharged upon the
debtor failing to excise options provided in a debenture.
Contract-Liability ofa surety — Liability is co-extensive with that ofthe principal
debtor - Section 80 of the Law of Contract Act.
Contract - Estoppel - Whether a bank is estoppedfrom claiming from debtors
money due to it after using its internal mechanism ofdebt or loss write-off.
Law - Securities - Debtor of a bank is. sued - Effect ofthe suit on securities q
given by the debtor. |
10 December 2004 |
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High Court lacks jurisdiction over appeals originating in a Ward Tribunal; appeal dismissed for want of jurisdiction.
Civil procedure – Jurisdiction – Appeals – Appeals from Ward Tribunal – Section 20, Ward Tribunal Act No.7/1985 requires appeals from Ward Tribunal to lie to District Court; High Court cannot entertain such appeals directly.
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7 December 2004 |
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7 December 2004 |
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Conviction quashed where trial court improperly relied on withdrawn witness evidence and identification of stolen property was doubtful.
Criminal procedure – withdrawal of charge and substituted charge – necessity to recall witnesses; reliance on withdrawn testimony is incurable irregularity; identification of stolen property – sufficiency and corroboration; doctrine of recent possession – inapplicability where item changed hands and long lapse; standard of proof – beyond reasonable doubt.
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7 December 2004 |
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Inconsistent evidence and a repayment agreement undermined prosecution’s proof of stealing by agent; conviction quashed.
Criminal law – Stealing by agent (s.273(b)) – burden of proof – credibility and inconsistencies – hearsay – contractual repayment and mortgage undermining mens rea – civil remedy versus criminal liability.
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7 December 2004 |
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Application to review a long‑standing ex parte judgment was procedurally incorrect, time‑barred and dismissed with costs.
* Civil procedure – appeals from Primary Courts – Civil Procedure Code 1966 inapplicable; Magistrates' Courts Act 1984 and GN No.312/1964 apply.
* Ex parte judgments – correct remedy is application to set aside, not review, where entered after substituted service.
* Delay – inordinate delay (15 years) can justify dismissal of late challenges and indicate intent to delay execution.
* Evidence – allegations about lack of letters of administration require supporting affidavit from the person concerned.
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7 December 2004 |
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Donor custodian cannot override contract; certified unpaid sums payable and late, unformalized extra claims disallowed.
Contract law – donor-funded projects – third party custodian of funds (ITECO) remains outside contract and cannot override contractual payment obligations; contractor’s late/additional claims must be formalized as contract addenda; failure to pay certified sums within contractual period is a fundamental breach (Clause 59(2)(d)).
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3 December 2004 |
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An appeal does not stay execution; stay requires no delay, security for performance, and proof of irreparable loss, which were not shown.
* Civil procedure – Stay of execution – Appeal does not automatically stay execution – Order 39 rule 5(1) and (3) CPC – Conditions: substantial loss, no unreasonable delay, security for due performance.* Security – Absence of security for due performance defeats application for stay.* Irreparable loss – Intrinsic value of property and prospects of success on appeal are insufficient special circumstances to warrant stay where respondent can compensate.
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3 December 2004 |
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Caveat removed where caveator failed to show cause and relied on an apparently spurious document.
Land Registration Ordinance s.78(4) – removal of caveat; caveat must be entered in good faith; burden to show cause on caveator; failure to prosecute/attend as factor in granting relief; probative value of authenticated surveyed plan versus unsupported document.
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1 December 2004 |
| November 2004 |
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Court confirmed amendment of the applicant's memorandum clause after finding compliance with section 7 requirements.
* Companies law – alteration of memorandum of association – confirmation under section 7 of the Companies Ordinance – court satisfied statutory compliance; amendment confirmed.
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30 November 2004 |
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An application for stay pending appeal was struck out for citing an inapplicable procedural provision and failing Rule XXXIX requirements.
* Civil Procedure – Stay of execution pending appeal – Appeal court applications must be brought under Order XXXIX Rule 5(1) not Order XXI Rule 24.
* Civil Procedure – Competence of proceedings – A Chamber Summons citing an inapplicable provision cannot be rescued by vague reference to "any other enabling provision".
* Civil Procedure – Requirements for stay under Order XXXIX Rule 5(3) – must depose to substantial loss, absence of unreasonable delay, and security.
* Civil Procedure – Fundamental procedural defects may warrant striking out rather than amendment.
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30 November 2004 |
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An appellate stay must be sought under Order XXXIX Rule 5(1); invoking Order XXI Rule 24 is incompetent.
Civil procedure — Stay of execution — Application to appellate court must be made under Order XXXIX Rule 5(1) — Order XXI Rule 24 inapplicable where decree not sent for execution — Chamber summons’ vague citation cannot cure invocation of wrong provision — Failure to allege Rule 5(3) facts fatal.
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30 November 2004 |
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An unopposed ex parte adoption/guardianship petition under the Adoption Ordinance was granted; petitioners appointed guardians ad litem.
* Adoption Ordinance (Cap. 335) – appointment of guardians ad litem – ex parte petition – unopposed application – grant of petition.
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29 November 2004 |
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An unopposed adoption petition was heard ex parte and the court granted appointment of the petitioners as guardians ad litem.
Adoption — Appointment of guardian ad litem — Petition under Adoption Ordinance — Ex parte hearing where no objection — Petition granted.
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29 November 2004 |
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29 November 2004 |