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Citation
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Judgment date
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| June 2009 |
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The applicant's robbery conviction was quashed due to inconsistent evidence and an improper mismatch between charge and conviction.
Criminal law – Robbery with violence – burden of proof – inconsistencies in testimony regarding recovery of property. Criminal procedure – Conviction under different Penal Code section than charged – miscarriage of justice
Evidence – failure to call material witness and inadequate consideration of defence render conviction unsafe
Appeal – appellate court may quash conviction where trial court misapplied law or misweighed evidence
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29 June 2009 |
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A property cannot be administered in two separate probates; later probate orders affecting an earlier-administered house are set aside.
Probate law – single property cannot be subject of two separate probates – earlier probate prevails over subsequent probate including same property
Succession/administration – improper inclusion and order to sell property already administered under prior probate must be set aside. Property classification – house built by decedent while living alone not matrimonial property
Remedies – disputed proprietary interest should be pursued by civil action to establish title or interest
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29 June 2009 |
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A property cannot be the subject of two separate probates; duplicate inclusion and sale order set aside.
Probate law – same property cannot be subject of two probates – exclusion of property from duplicate probate – determination whether property is matrimonial or sole estate asset – setting aside order to sell improperly included asset.
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29 June 2009 |
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Appeal dismissed: appellant's guilty plea was unequivocal and appeal barred under section 360(1) CPA.
Criminal law – Plea of guilty – Whether plea was unequivocal – Effect of section 360(1) CPA barring appeals from guilty pleas Criminal procedure – Plea-taking procedure – charge identification, jurisdiction, and factual admission Evidence – Allegation of police coercion raised on appeal as afterthought Sentencing – Lawfulness of statutory minimum sentence for armed robbery
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26 June 2009 |
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26 June 2009 |
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Appeal dismissed: conviction upheld on recent possession and corroborating witnesses; s57(1) inapplicable to sungusungu statements.
Evidence — reliance on multiple witnesses and recovery of stolen property supporting conviction; recent possession doctrine applicable
Confession — section 57(1) CPA inapplicable where statements were not police interviews (made to sungusungu). Criminal procedure — prosecution’s discretion in witness selection; failure to call particular local leader not necessarily fatal. Fair trial — prior conviction by same magistrate in a different case does not automatically establish prejudice
Sentence — lawful minimum sentence upheld
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26 June 2009 |
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26 June 2009 |
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A familiar eyewitness identification aided by lighting and corroborative evidence sufficed to convict the accused of murder.
Criminal law – murder – visual identification by a single witness – Waziri Amani caution; corroboration by post-mortem and exhibits; conviction and death sentence.
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26 June 2009 |
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Application to stay a dismissal order was dismissed; extension/set‑aside application struck out for wrong citation of enabling law.
Civil procedure — appeal dismissed for want of prosecution — application to stay execution of dismissal order not executable — Order 39 Rule 5(3) (delay and security) — extension of time and setting aside lumped in one chamber summons — citation of enabling provisions essential — Order IX Rule 4 governs setting aside dismissals — affidavits must state facts within deponent’s knowledge (Order XIX Rule 3).
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26 June 2009 |
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An application to stay a dismissal order is incompetent; failure to cite specific enabling rules (Order IX r4) led to striking out the restoration/extension application.
Civil Procedure — Competence of applications — An order dismissing an appeal for want of prosecution is not ordinarily executable; applications to stay such dismissal are incompetent
Civil Procedure — Stay of execution — Order 39 Rule 5(3) requires no unreasonable delay and security; prolonged delay in seeking stay defeats the application
Civil Procedure — Form of application — Lumping extension of time and substantive relief in one chamber summons is not automatically fatal but may be improper depending on dependency of prayers
Civil Procedure — Enabling provisions — Failure to cite specific enabling provisions (e.g. Order IX Rule 4) can render an application incompetent; general provisions (Sections 68, 95) do not cure that defect
Evidence — Affidavits — Affidavits must be confined to facts within the deponent’s personal knowledge per Order XIX Rule 3; hearsay or undisclosed sources render affidavit evidence unreliable
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26 June 2009 |
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Bill of costs dismissed as time-barred and for non-compliant written submissions lacking preparer’s endorsement.
Civil procedure – Bill of costs – time bar under Law of Limitation Act (Item 21, Part III) – application dismissed as time-barred. Advocacy practice – Advocates Act s.44(2) – written submissions must bear name of preparer/endorser; non-compliance renders submissions defective. Procedural consequence – failure to respond to duly served legal objections permits court to uphold objections and dismiss application
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25 June 2009 |
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Court reviewed its earlier ruling but dismissed extension of time to seek prerogative orders due to delay and misconceived challenges.
Administrative law – review of court’s own ruling for error on the face of the record; prerogative orders – time limit for leave to apply (six months); judicial review precluded where appellate remedies have been pursued and determined; extension of time – inordinate delay and ignorance of law not good cause; statutory provisions: Local Government Service Act s.14A(d), Law of Limitation Act s.21, time limit for prerogative orders.
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25 June 2009 |
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Procedural omissions are irregular but not fatal; special damages must be specifically pleaded and strictly proved.
Civil procedure — Order VIII A (scheduling and settlement conference): mandatory in form but non-compliance is not per se fatal; procedural irregularity assessed for prejudice. Civil procedure — Order XIV r.1(5): failure to frame issues at first hearing is curable if issues later framed and decided. Civil procedure — Order IX r.2: non-service does not automatically require dismissal; dismissal discretionary and must be sought
Evidence — Special damages: must be specifically pleaded and strictly proved; uncorroborated oral assertions insufficient. Burden of proof: plaintiff must prove claims on balance of probabilities
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25 June 2009 |
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Failure to plead and strictly prove special damages and loss of business justified setting aside the damages award.
Civil procedure – Order VIIIA (scheduling/settlement conference) – non‑compliance an irregularity not necessarily fatal; Order XIV (framing issues) – failure to frame issues at first hearing remedied if issues later framed; Service of summons – dismissal discretionary under Order IX(2); Evidence – special damages must be specifically pleaded and strictly proved; burden of proof in civil cases – balance of probabilities; Road Traffic collision – liability findings unaffected by procedural irregularities but damages must be proved.
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25 June 2009 |
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Court reviewed its earlier ruling, dismissed extensions for delayed judicial review and struck out related applications.
Administrative law – judicial review – prerogative orders – limitation period for leave to apply for certiorari and mandamus – effect of appeals on availability of judicial review – error apparent on the face of the record where court omits to determine issues raised in the chamber summons.
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25 June 2009 |
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Failure to attach the petition to an application for leave to appeal out of time breached mandatory Rule 3; dismissal quashed and refiling ordered.
Civil procedure – Appeals from Primary Courts – Rule 3, Civil Procedure (Appeals in Proceedings Originating in Primary Courts) Rules, 1963 – application for leave to appeal out of time must be accompanied by petition of appeal – constitutional principle against undue technicality (Article 107A(2)(e)) – courts may not dispense with mandatory procedural requirements absent injustice – improper dismissal vs. striking out/incompetency.
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23 June 2009 |
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22 June 2009 |
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Proceedings stayed: suit found res subjudice due to earlier pending case over same registered trade mark.
Civil Procedure – res subjudice (section 8 Civil Procedure Act) – trademark disputes – whether matters are directly and substantially the same – assignment of trade mark – registration of assignment under Trade and Service Marks Regulations – preliminary objection and disputed facts (Mukisa Biscuits principle).
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22 June 2009 |
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Omission of identification in a jurat breaches the Oaths and Statutory Declarations Act and renders the affidavit incurably defective.
Evidence Affidavits Jurat of attestation Oaths and Statutory Declarations Act (s.10) Mandatory form and identification of deponent; non-compliance renders affidavit incurably defective. Procedure Preliminary objection Competency of application supported by defective affidavit. Notaries Public and Commissioner for Oaths Act Place and date in jurat insufficient to cure absence of identification clause
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22 June 2009 |
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First appellant properly identified and convicted; convictions of second and third quashed for lack of identification.
Criminal law – Robbery with violence – Identification evidence – proximity and time of observation – Positive identification of co-accused required for conviction; absence of identification requires quashing conviction.
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19 June 2009 |
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A claim for unpaid wages is not inevitably a summary dismissal; respondent's employment established where employer fails to produce records.
Employment law – jurisdiction – unpaid wages versus summary dismissal – whether a claim for salary arrears converts to summary dismissal. Employment law – proof of employment – admissibility of employee statements where employer fails to produce employment records (s.40(5), Employment Act)
Evidence – assessment of witness credibility – appellate restraint in overturning trial-court findings. Labour procedure – labour report under s.141 actionable in ordinary court where dispute concerns unpaid wages
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18 June 2009 |
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A claim for unpaid wages is actionable in ordinary court; employer's failure to produce employment records undermines its defence.
Employment law – unpaid wages v. summary dismissal – distinction determines jurisdiction under Employment Act
Employment Act s36(3) – notice of termination may be verbal
Employment Act s40 – employer’s duty to produce employment records; failure renders employees' statements admissible. Appellate review – deference to trial court credibility findings
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18 June 2009 |
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Court lacks jurisdiction to grant interim injunctions before a dispute is submitted to arbitration; petition struck out with costs.
Arbitration — Interim/conservatory measures — Whether Court may grant interlocutory injunctions before submission to arbitration — Section 3 Arbitration Act; Rule 5 Arbitration Rules
Jurisdiction — Petition premature in absence of pending arbitral proceedings. Rule‑making — Section 20 vests regulatory power in Minister, not Court. Petition struck out with costs
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17 June 2009 |
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17 June 2009 |
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16 June 2009 |
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Appeal struck out for being filed against a non‑existent statutory entity whose existence had ceased.
Civil procedure — Preliminary objections — competence of appeal; Limitation — amended memorandum of appeal filed pursuant to court order — original appeal timely; Corporate identity/succession — appeal filed against a repealed/non‑existing statutory entity; Remedy — striking out incompetent appeal; Costs — each party to bear its own costs.
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15 June 2009 |
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The appellant lacked any right to the plot; the respondent’s village allocation and long occupation established ownership, appeal dismissed with costs.
Land law – allocation by village council – continuous and uninterrupted occupation as evidence of rightful possession
Trespass – unlawful occupation by third parties and remedies at Ward and District Land Tribunals. Appellate review – High Court will not disturb concurrent tribunal findings supported by allocation and long possession. Credibility and lack of evidence – unsupported personal claims (e.g., oppression as a widow) do not defeat title or possession findings
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12 June 2009 |
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Appellate court affirms village allocation and long occupation as basis to dismiss a trespasser's land claim.
Land law - Allocation by village council; continuous uninterrupted occupation as basis for right to land; trespass by a later occupant; appellate review of tribunal's factual findings; unproven allegations of oppression by claimant do not defeat allocation-based possession.
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12 June 2009 |
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High Court set aside appellate restoration of detained engine, restoring primary court's conditional handover due to lack of proof of ownership or company existence.
Civil procedure – appeal – appellate court must not rely on unproved assumptions regarding existence of business entity or ownership of detained property
Evidence – burden of proof – party alleging existence of company or ownership must prove it on balance of probabilities. Possessory liens/security – retention of property as security for unpaid debt where ownership and debtor identity are in dispute
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11 June 2009 |
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First Appellate Court erred by assuming existence of 'Madrid' and respondent's ownership without proof; Primary Court judgment restored.
Civil procedure – appellate review: appellate court must not assume existence of facts without proof; party alleging a fact must prove it on balance of probabilities; ownership of property must be established by evidence; detention of chattel as security for debt; misdirection by first appellate court warrants setting aside its judgment.
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11 June 2009 |
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Conviction for sodomy of a seven‑year‑old upheld despite improperly tendered PF3; sentence substituted to life imprisonment.
Criminal law – Unnatural offence (sodomy) involving a child – conviction upheld; improper tendering of PF3 by non‑doctor reduces its value
Evidence – medical report admissibility – compliance with section 240(3) Criminal Procedure Act required
Evidence – child witness – unsworn testimony after voire dire (s.127(7) Evidence Act) may be sufficient if reasons recorded and corroborated
Evidence – non‑expert witness’ direct observations admissible under s.62(1)(a)
Sentence – offence against a seven‑year‑old attracts life imprisonment under relevant Penal Code provisions
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11 June 2009 |
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Child's unsworn testimony and parent's direct observations can support conviction; sentence revised to life imprisonment.
Criminal law – Unnatural offence; admissibility of PF3 under s240(3) Criminal Procedure Act; direct non‑expert observations admissible under s62(1)(a) Evidence Act; unsworn child evidence after voir dire under s127(7) Evidence Act can be sole basis for conviction; appellate revision powers s30(1)(e) Magistrates' Courts Act; sentencing — life imprisonment under s154 Penal Code for offence against a child.
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11 June 2009 |
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Convictions quashed where a key documentary exhibit was improperly admitted and not linked to the accused.
Criminal law – burglary and stealing; variance of dates in charge and evidence; compliance with s.192 Criminal Procedure Act; admissibility of documentary evidence (copy vs original); proof of link between exhibits, place of search and accused; improper admission of exhibit leading to quashing of conviction.
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10 June 2009 |
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Application to strike out improperly grounded where no scheduling order existed, so Order 8A(4)-(5) inapplicable.
Civil Procedure — Order 43 r.2 (chamber summons by affidavit); Order 8A r.4–r.5 — scheduling conference orders, speed-track assignment, amendments and orders against defaulting parties; requirement that cited provisions correspond to established facts before relief is sought.
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9 June 2009 |
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An application to strike out failed because Order 8A was inapplicable: no scheduling order or speed track existed.
Civil Procedure Code – Order 43 r.2 (chamber summons and affidavit) – Order 8A r.4 (prohibition on amendment of scheduling conference orders) – Order 8A r.5 (orders against defaulting parties) – scheduling conference – speed track assignment – striking out for reliance on inapplicable provisions.
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9 June 2009 |
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8 June 2009 |
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Application for revision against interlocutory subordinate‑court orders is barred; objections left to trial or appeal.
Criminal procedure – Revision – Effect of Act No.25/2002 (s.43(2) Magistrates Courts Act and s.372(2) Criminal Procedure Act) barring revision of interlocutory or preliminary orders; supervisory jurisdiction – limited to cases of real confusion or competing orders; jurisdictional pleas (DPP consent, extraterritoriality, diplomatic immunity) and procedural objections (video/teleconferencing) are to be raised in trial court or on appeal.
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8 June 2009 |
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Bail granted pending manslaughter trial with monetary bond, verified sureties, travel restriction and monthly reporting.
Criminal procedure – Bail pending trial – Grant of bail where application is tenable and prosecution raises no objection – Imposition of sureties, monetary bond, travel restriction and regular reporting to registrar. Judicial administration – Role of District Registrar in verifying sureties and maintaining temporary case file
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8 June 2009 |
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Court may appoint multiple administrators and give effect to the deceased's oral wish even if respondent is not a blood heir.
Probate and administration – appointment of administrators – court’s discretion under Magistrates' Courts Act (Fifth Schedule, Rule 2(a)) to appoint one or more administrators and regard to deceased’s wishes; Evidence – admissibility and weight of deceased’s oral expression of wish; Family election not determinative of court’s power to appoint administrators.
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5 June 2009 |
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The applicant's cattle unlawfully seized by a village 'Ritongo' must be returned; the District Court wrongly ousted Primary Court jurisdiction.
Civil procedure – jurisdiction – Primary Court authority in recovery of property seized by village assembly ('Ritongo'); Customary dispute resolution – limits and legality of self-help seizure; Criminal v civil remedies – allegations of theft must be pursued through police/criminal process, not village seizure; Liability – owner not liable for adult son's alleged crimes; Remedy – return of property or cash equivalent; costs awarded.
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5 June 2009 |
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Reported
District Court wrongly nullified Primary Court; respondent must return eleven cattle or pay equivalent; self-help seizure unlawful.
Jurisdiction – whether Primary Court lacked jurisdiction because matter not founded on customary law; appellate review of jurisdictional basis
Customary decision-making ('Ritongo') – limits and legality of village meetings seizing property
Civil v. criminal remedy – theft allegations must be pursued through criminal process; self-help seizures unsupported
Proof of ownership – burden to prove that seized property belonged to alleged thief; parent not vicariously liable for adult son's crimes
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5 June 2009 |
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High Court restored Primary Court order requiring respondent to return eleven cattle or pay cash equivalent, finding communal seizure unlawful and District Court misdirected.
Property law; seizure by traditional village assembly ('Ritongo')—lawfulness of communal seizure versus proper criminal procedure; jurisdiction of Primary Court and appellate review of nullification based on customary-law grounds.
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5 June 2009 |
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High Court quashed subordinate court judgment: specified public corporation under PSRC made RM court proceedings void for lack of jurisdiction.
Administrative law – Revision under s.44(1)(b) MCA – Jurisdiction of subordinate courts – Specified public corporations and PSRC as receiver – Interaction of Public Corporations Act and Bankruptcy Ordinance (ss.9,97) – Proceedings instituted without leave of High Court are nullities; forgery and refusal to extend time/stay not errors on face for revision.
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5 June 2009 |
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A subordinate court lacked jurisdiction to hear suit against a specified public corporation; proceedings were declared a nullity.
Public Corporations Act s43 – specification of public corporation and PSRC as official receiver; Bankruptcy Ordinance s9 and s97 – High Court jurisdiction and bar on proceedings without leave; jurisdiction of subordinate courts; revision vs appeal; forged document and reviewability.
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5 June 2009 |
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A Primary Court cannot entertain taxation proceedings when the case ended in the High Court; appellant's suit was improperly filed and dismissed.
Taxation of costs – proper forum – where matter originated in Primary Court and concluded in High Court bill of costs must be filed with the District Registrar as taxing master; Primary Court improperly entertained fresh taxation suit; District Court correctly set aside trial court decision.
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5 June 2009 |
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Where appeals reach the High Court, taxation of costs must be lodged with the District Registrar, not by a fresh primary-court suit.
Civil procedure – Taxation of costs – Proper forum and procedure for taxation where proceedings end in the High Court – Bill of costs to be filed with District Registrar (taxing master) – Primary court’s misdirection and nullity of fresh suit for taxation.
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5 June 2009 |
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Whether identification was reliable and whether prosecution proved the presence of a weapon for armed robbery.
Criminal law – Armed robbery – Elements required: identity of accused and proof of being armed with a dangerous/offensive weapon. Identification evidence – prior acquaintance, lighting and opportunity to observe
Evidence – adequacy of PF3/medical record and its role in proving weapon used
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4 June 2009 |
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4 June 2009 |
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A court may set aside an improperly entered default judgment and reopen the matter for inter partes hearing; it is not necessarily functus officio.
Civil procedure – review of default/ex parte judgment – Trial court’s power to set aside its own erroneous order – Not functus officio where earlier default judgment arose from procedural impropriety; written statement of defence filed out of time; requirement to file reply before inter partes hearing.
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4 June 2009 |
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Court granted leave to sue a public corporation over an unresolved insured motor-vehicle claim and awarded costs to the applicant.
Procedural law – leave to sue public/para-statal bodies; application under Bankruptcy Act s.9(1) and Public Corporations Act s.43; leave granted where respondents do not oppose and applicant shows unresolved insured motor-vehicle claim; costs awarded to applicant.
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3 June 2009 |