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Citation
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Judgment date
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| July 2009 |
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Conviction quashed for trial bias; retrial denied because applicant served a substantial part of the sentence.
Criminal procedure — Judicial bias and recusal — Unexplained cancellation of bail and refusal to disqualify magistrate — Reasonable apprehension of bias. Remedy — Quashing conviction and sentence; retrial discretionary where substantial sentence already served. Fair trial — Justice must be seen to be done.
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27 July 2009 |
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Conviction for rape based on single, uncertain identification and missing medical evidence was quashed for insufficient proof.
Criminal law – Rape – Identification in darkness – application of Waziri Aman; requirement for corroboration in sexual offences; failure to tender PF3; voluntariness of admissions where accused unrepresented.
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27 July 2009 |
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Preliminary objections raising disputed factual issues are improper; court dismissed all such objections under the Mukisa test.
Civil procedure — Preliminary objections — Mukisa test: objection must be pure point of law, not factual — Locus standi; cause of action; corporate board resolution — Pleadings: quantification of general damages permissible; absence of annexures and alleged immaterial pleadings raise factual issues.
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24 July 2009 |
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Substituting charges without arraignment renders the trial a nullity; conviction set aside and retrial ordered.
Criminal procedure – arraignment – substitution of charges – new charge must be read and accused required to plead; non-compliance renders trial a nullity; proceedings set aside and retrial ordered.
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24 July 2009 |
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Application struck out because the affidavit's jurat omitted the place, an incurable statutory defect not curable under Article 107A(2).
Judicial review – Certiorari and mandamus – Affidavit jurat – Notaries Public and Commissioners for Oaths Act s.8 – mandatory requirement to state place and date – omission of place is incurable – Article 107A(2) cannot cure statutory jurat defects – preliminary objection – striking out application.
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24 July 2009 |
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Conviction quashed where no identification evidence and mere possession of stolen phone did not prove armed robbery.
Criminal law – Armed robbery – Identification evidence – Conviction cannot rest where no witness identified appellant at scene; Possession of complainant’s property – Insufficient alone to prove robbery where reasonable doubt exists; Burden of proof – Prosecution must prove guilt beyond reasonable doubt.
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24 July 2009 |
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Failure to state the subject-matter value in the plaint renders the High Court incompetent; plaint must be returned to the lower court.
Civil procedure — Order VII Rule 1(1)(i) CPC — mandatory requirement to state value of subject matter in plaint — effect on jurisdiction and competency; Commercial Division concurrent but pecuniarily limited jurisdiction; remedy under Order VII Rule 10 to return plaint to lower court.
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23 July 2009 |
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Court granted extension of time and stayed execution where appeal was struck out due to a defective decree and counsel acted diligently.
Civil procedure — extension of time to file notice of appeal — defective decree — appeal struck out on technical ground; stay of execution pending appeal — Order XXXIX Rule 5(2)–(4), Rule 35(1); sections 93 & 95 CPC; Law of Limitation Act s.21(2)–(3) (exclusion of time) — discretion to grant relief where party acted diligently.
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23 July 2009 |
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Court substituted theft conviction for stealing-by-agent and reduced an excessive sentence, awarding compensation.
Criminal law – Distinction between stealing by agent (s.273) and theft (s.265) – conversion after lawful possession. Criminal procedure – Substitution of conviction for a lesser offence where proved facts reduce the charged offence. Evidence – admissibility of eyewitness testimony and relevance of hosting evidence; lack of documentary proof not fatal. Sentencing – mitigation for first offenders and proportionality to value of stolen property.
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20 July 2009 |
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Appeal dismissed: prosecution proved rape beyond reasonable doubt and 30-year sentence upheld.
Criminal law – Rape – Sufficiency and consistency of prosecution evidence – Credibility of victim and witnesses – Proof of age by birth certificate – Appellate review of conviction and sentence.
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20 July 2009 |
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The plaintiff's action challenging the sale was dismissed as res judicata and an abuse of process; bona fide purchaser protected.
Civil procedure – res judicata – earlier final decision on same property and issue bars subsequent suit. Civil procedure – res subjudice/abuse of process – concurrent or repetitive litigation barred; appeal is proper remedy. Property law – sale of mortgaged premises – protection of bona fide purchaser under s.135 Land Act. Civil Procedure Code (sections 8 and 9) – stay and bar against multiplicity of proceedings.
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17 July 2009 |
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Conviction based on untested child testimony and uncorroborated medical report was quashed; sentence set aside.
Criminal law – Sexual offences against children – Evidence of a child of tender years – requirement and recording of voir dire to establish understanding of duty to tell the truth. Criminal procedure – Admission of medical report (PF3) – accused’s right to require the doctor’s attendance for cross‑examination. Evidence – Sufficiency and corroboration – single untested child witness and uncorroborated medical findings may occasion failure of justice. Sentencing – Penal Code s.154: life imprisonment prescribed for unnatural offences against children under ten.
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17 July 2009 |
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Convictions for armed robbery quashed due to unsafe, contradictory identification evidence and trial court misdirection.
Criminal law – armed robbery – identification evidence – contradictions between eyewitness accounts and inadequate description of lighting/distance – unsafe conviction; burden of proof – conviction must rest on strength of prosecution; consolidation of appeals arising from same transaction; return of seized property (Exh. P3).
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16 July 2009 |
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Whether the house was matrimonial property divisible and whether the district court ignored the appellant's written submissions.
Family law — division of matrimonial property — whether a house is matrimonial property acquired jointly and therefore divisible; Civil procedure — alleged failure by appellate court to consider written submissions; Evidence — assessment of credibility and re-evaluation on second appeal; Succession/alienation — distinction between a will and an inter vivos assignment.
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16 July 2009 |
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15 July 2009 |
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The appellant’s challenge to a Shs.100,000 monthly maintenance order was dismissed for failure to rebut income evidence.
Family law — Maintenance — Father’s duty to maintain under s.129(1) Law of Marriage Act 1971 — Maintenance payable despite separation. Evidence — Failure to produce material financial evidence — Adverse inference permissible. Appeal — Second appeal — Re-evaluation of evidence on maintenance amount and means. Procedure — Custody issue not entertainable where not raised at trial.
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15 July 2009 |
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Appeal withdrawn to correct defective drawn order; liberty to reinstitute granted; court refused to fix time limit; costs awarded.
Civil procedure — defective drawn order (date mismatch) — remedy: withdraw appeal with liberty to reinstitute and file fresh appeal after obtaining properly dated drawn order — Order 20, rule 7 CPC — court discretion not to fix time limit — costs to respondent.
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13 July 2009 |
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Failure to recall witnesses, improper quorum and absent voting record rendered the Board's judgment a nullity.
Rent Restriction Board — fresh rehearing — recall of witnesses vs reading dispositions — ss. 9(3), 9(5) — quorum requirements s. 6A(3) — majority vote and record of voting s. 6A(4) — procedural irregularities rendering decision a nullity — retrial ordered.
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13 July 2009 |
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Muslim will upheld only to one-third of estate; joint administrators appointed to divide and administer estate.
Probate and administration; validity of Muslim (Mohammadan) will; testamentary power limited to one-third of net estate; excess bequest ineffective without heirs' consent; witness/form requirements for Islamic testamentary dispositions; joint letters of administration ordered for divided estate administration.
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13 July 2009 |
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A Mohammedan will disposing more than one third is effective only to one third; court appointed joint administrators accordingly.
Probate/Administration – letters of administration – caveat based on a purported will; whether administrator or executor should be appointed. Islamic (Mohamedan) law – testamentary limitation – bequest limited to one third of residuary estate; excess requires heirs' consent. Formalities – Mohammedan will need not be in writing or have formal attestation; magistrate presence and oral declaration can suffice. Remedy – partial recognition of will; joint administration, valuation, deduction of funeral expenses and debts.
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13 July 2009 |
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10 July 2009 |
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Acquittal where dying declaration and visual identification were unreliable and prosecution lacked corroborative evidence.
Criminal law – Murder: reliance on dying declaration; visual identification – caution in identification from poor conditions; dying declaration as confession against co-accused requires corroboration; necessity of forensic/corroborative evidence.
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10 July 2009 |
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Court expunged specified offensive paragraphs of a counter-affidavit but refused to strike it out; preliminary objection dismissed.
Civil Procedure – Affidavits – Order XIX Rule 3(1) CPC – affidavits confined to facts within deponent's knowledge; legal arguments, conclusions and prayers impermissible. Originating summons – affidavits are subject to same statutory requirements as other applications. Preliminary objections – objection to defective counter-affidavit is maintainable; offensive paragraphs may be expunged rather than striking out entire affidavit. Verification – qualified verification acceptable as to remaining paragraphs after expungement.
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10 July 2009 |
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Appellate court affirms rape conviction; refuses belated admission of caution statements and deems PF.3 irregularity harmless.
Criminal law – Rape – Admission of additional evidence on appeal – caution statements not produced at trial; Criminal procedure – Irregular admission of PF.3 under s.240(3) Criminal Procedure Act – harmless irregularity; Evidence – witness credibility and alleged bias; Magistrates' Courts Act s.29 – appellate power to receive additional evidence
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9 July 2009 |
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Peripheral contradictions and a procedural lapse in PF.3 did not render the appellant's rape conviction unsafe.
Criminal law – Rape – Sufficiency and credibility of eyewitness evidence – peripheral contradictions and procedural irregularities not necessarily fatal to conviction. Evidence – Admission of additional evidence on appeal (s.29 Magistrates' Courts Act) – relevance and materiality required. Criminal procedure – Compliance with s.240(3) Criminal Procedure Act in production of medical/ PF.3 evidence – irregularity may be non-prejudicial.
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9 July 2009 |
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High Court retains original jurisdiction in civil land disputes; suits may proceed in Civil Registry where Land Division judges are unavailable.
Land law – jurisdiction – High Court original jurisdiction in civil land disputes – Land Division – Courts (Land Disputes Settlement) Act – purposive interpretation. Procedural law – High Court Registries Rules (Rules 5E,7,10) and Civil Procedure Code (Order IV r.3, Order VII r.10) – interlocutory relief in district registries. Access to justice – practical effect of understaffed Land Division – refusal to transfer where doing so would deny timely remedies.
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9 July 2009 |
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The court held the action was for false imprisonment, not malicious prosecution, and upheld Tsh.500,000 compensation for wrongful confinement.
Tort – False imprisonment (wrongful confinement) – Distinction from malicious prosecution – Pleadings determine the cause of action – Arrest vs mere interrogation – Failure to call uncontroversial police witnesses not fatal to finding of detention; damages assessment and reduction justified.
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8 July 2009 |
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Conviction for rape and impregnating a schoolgirl quashed for lack of independent corroboration and reliance on hearsay evidence.
Criminal law – Evidence – Sexual offences – Necessity of independent corroboration where credibility is in issue; hearsay and failure to call material witnesses undermine proof beyond reasonable doubt; conviction unsafe and quashed.
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6 July 2009 |
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Appellant’s theft conviction quashed for lack of mens rea; co-accused’s conviction and restitution upheld.
Theft — identification of stolen property — identification by colour alone is weak; recent possession doctrine; evidential weight of confessions before traditional leaders; mens rea (animus furandi) required for conviction.
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6 July 2009 |
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Whether a prior monogamous civil marriage bars a later customary marriage and related matrimonial claims.
Family law – Admissibility of documentary evidence; presumption that civil marriage is monogamous (s.10(2)(b) Law of Marriage Act); capacity to contract subsequent customary marriage; matrimonial property requires valid marriage; maintenance requires proof of parentage.
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6 July 2009 |
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A proved prior civil monogamous marriage precludes a later customary marriage, negating matrimonial claims without proof of parentage.
Family law – admissibility of civil marriage certificate – presumption of monogamy in civil marriages under Law of Marriage Act – capacity to contract subsequent marriage – matrimonial property and maintenance dependent on existence of marriage and proof of parentage.
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6 July 2009 |
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A prior civil marriage presumed monogamous precludes a subsequent customary marriage and related property and maintenance claims.
Family law – validity of marriage – effect of prior civil marriage presumed monogamous under Law of Marriage Act – incapacity to contract a subsequent customary marriage. Evidence – admissibility of documentary evidence – trial court duty to determine admissibility of exhibits before judgment. Matrimonial property – requirement of valid marriage to attract equal distribution of jointly acquired assets. Maintenance – necessity of proof of parentage to establish maintenance obligations.
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6 July 2009 |
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Application to set off appeal costs against decretal costs and to pay by installments dismissed; consent and timely taxation required.
Set-off of costs; mutual debts; requirement for lodged/taxed bill of costs; Order XX Rule 11(2) CPC — payment by installments requires decree-holder's consent; time limits under Limitation Act; execution proceedings; refusal to entertain suo motu review of underlying decree.
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3 July 2009 |
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A live preliminary objection raising res judicata must be decided before considering an application for amendment.
Procedure – Preliminary objection – Where a res judicata preliminary objection exists it should be resolved before applications for amendment; written submissions refused as unnecessarily prolonging proceedings.
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1 July 2009 |
| 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 |