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Citation
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Judgment date
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| December 2007 |
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Buyer who inspected and accepted possession of second‑hand machine cannot later reject it; ex parte order must be set aside before appealing.
Contract — Sale of goods — inspection and acceptance — purchaser who inspected, paid advance, took possession and used second‑hand machine cannot later reject for defects discovered after possession; Civil procedure — ex parte proceedings in Primary Courts — Rule 29 and Rule 30 GN 310/1964; setting aside ex parte orders; curable irregularity under section 37(2) Magistrates' Courts Act.
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13 December 2007 |
| November 2007 |
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A spouse is entitled to a share of matrimonial property regardless of monetary contribution; children’s welfare guides property division.
* Family law – Division of matrimonial property – entitlement to share irrespective of monetary contribution – authority: Bi Hawa Mohamed v Ally Sefu (1983). * Family law – Custody and maintenance – children's welfare paramount in property division (Law of Marriage Act, ss.125–126). * Interpretation and application of s.114(2)(a)–(c) of the Law of Marriage Act in property division.
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23 November 2007 |
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A homemaker spouse is entitled to a share of matrimonial property irrespective of monetary contribution; children’s welfare guides division.
Family law — Division of matrimonial property — Non-monetary contributions by homemaker entitle spouse to share; children's welfare paramount; interpretation of section 114(2) Law of Marriage Act; Bi Hawa Mohamed precedent.
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23 November 2007 |
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Whether the respondent inherited the disputed land and whether the appellant was liable for the claimed crop damages.
* Land law – ownership by inheritance – credibility and evaluation of oral evidence – burden on party alleging invalidity of prior sale to prove lack of local authority sanction. * Civil procedure – appeals – fresh complaints not proved at trial cannot succeed on appeal. * Damages – requirement to prove causal link and provenance of administrative orders; hearsay evidence insufficient to establish liability for crop loss.
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16 November 2007 |
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Claims against a specified public corporation by creditors provable in bankruptcy require High Court leave before suit proceeds.
Public Corporations Act s43(1) – specified public corporation – commission as official receiver – incorporates rights under Bankruptcy Ordinance; Bankruptcy Ordinance s9(1) – creditors with debts provable in bankruptcy barred from suing without leave; jurisdiction – requirement of High Court leave for proceedings affecting specified public corporations; declaratory relief vs. claim provable in bankruptcy; procedural competence of suits against parastatals.
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14 November 2007 |
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14 November 2007 |
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Application struck out: wrong procedure and defective affidavit; advocate’s lack of licence not automatically fatal to respondent’s pleadings.
Advocates Act – practising without certificate – filings by unqualified advocate; Civil Procedure – competence of interlocutory application – Order III rr.1-2 and s.95 CPC; Jurisdiction – substantive declaratory relief requires proper suit or Companies Act petition; Affidavits – legal opinion, conclusions and hearsay render affidavit fatally defective.
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1 November 2007 |
| October 2007 |
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Whether a wrongful-termination claim is a "trade dispute" under the Industrial Court Act, ousting High Court jurisdiction.
Industrial Court jurisdiction – definition of "trade dispute" – disputes connected with employment or non-employment – wrongful termination claims fall within Industrial Court's jurisdiction – High Court lacks original jurisdiction.
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25 October 2007 |
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Court upheld visual identification, substituted stealing conviction for robbery, and reduced each appellant's sentence to 15 years.
Criminal law – Identification evidence – reliability where victims knew accused and there was lighting and torch; Robbery vs stealing – threats with weapons and forcible entry at night establish robbery; Appeal – appellate substitution of conviction and sentence reduction.
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19 October 2007 |
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Whether failure to file court‑ordered written submissions justifies dismissal for want of prosecution and requires appellate clarification.
Appellate jurisdiction — certification of point of law and leave to appeal; procedural law — failure to file court‑ordered written submissions; discretion to dismiss appeals for want of prosecution; conflict of High Court authorities requiring Court of Appeal clarification.
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18 October 2007 |
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Detention and subsequent procedural missteps did not justify extending time to seek revision of an appealable matrimonial judgment.
Extension of time – computation of limitation – exclusion of period in remand custody – procedural error (letter of complaint) and negligence not sufficient cause – distinction between appealable matters and revision for error apparent on face of record.
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17 October 2007 |
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The applicant's conviction and two-year sentence upheld despite omission of 'unlawfully' in the charge.
* Criminal law – Causing grievous harm (s.225 Penal Code) – sufficiency of evidence – medical report (PF3) and complainant's credibility. * Criminal procedure – Form and substance of charge – omission of "unlawfully" not fatal where evidence establishes offence. * Defence law – alibi – procedural requirements for properly raising alibi at trial. * Sentencing – appropriateness and proportionality of two-year custodial sentence.
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16 October 2007 |
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Omission of "unlawfully" in the charge not fatal; evidence proved grievous harm and two-year sentence upheld.
* Criminal law – Grievous harm (s.225 Penal Code) – sufficiency and credibility of eyewitness and medical evidence.
* Criminal procedure – Form of charge – omission of word "unlawfully" not fatal where evidence proves offence.
* Criminal defence – Alibi – requirement that alibi be properly raised at trial to be considered on appeal.
* Sentencing – Appropriateness of custodial term for grievous harm.
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16 October 2007 |
| September 2007 |
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Refusal to grant VAT waiver without reasons or considering statutory factors amounted to abuse of discretion by the respondent.
Tax Revenue Appeals Act s.12(3) – discretion to allow reduced or deferred payment pending objection; requirement to consider uncertainty, hardship/equity, impossibility or undue difficulty of recovery; duty to give reasons; breach of natural justice; certiorari and prohibition for abuse of discretion.
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20 September 2007 |
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Recent possession of identified stolen items and broken padlock supported conviction for housebreaking; appeal dismissed.
* Criminal law – housebreaking and theft – broken padlock and removal of household items – evidence of housebreaking. * Criminal law – stolen property – recent possession of identified items as implicatory evidence. * Evidence – contradictions in accused’s accounts and afterthought defences undermining credibility. * Sentence – assessment of concurrent five-year terms upheld.
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14 September 2007 |
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The applicant's armed robbery conviction was quashed due to contradictions in prosecution evidence; release ordered.
Criminal law – burden of proof – sufficiency of prosecution evidence – contradictions in prosecution witnesses – appellate power to quash unsafe conviction and set aside sentence.
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10 September 2007 |
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Conviction for armed robbery quashed due to prosecution's failure to prove guilt beyond reasonable doubt; sentence set aside.
Criminal law – Armed robbery – Prosecution’s burden to prove guilt beyond reasonable doubt – Serious contradictions in prosecution witnesses’ evidence – Conviction unsafe – Appeal allowed – Conviction quashed; sentence set aside; release ordered if not otherwise lawfully held.
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10 September 2007 |
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Whether an order dismissing a review under O. XLII r.7 CPC is appealable and fit for the Court of Appeal's consideration.
Civil Procedure — Review — Order XLII rule 7 of the Civil Procedure Code — Appealability of orders dismissing review applications — Leave to appeal under s.5(1) Appellate Jurisdiction Act — Certificate/point of law for Court of Appeal.
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6 September 2007 |
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Leave to appeal granted because the appealability of an Order XLII review rejection raises a point of law for the Court of Appeal.
Civil Procedure — Revision and Appeal — Whether an order rejecting an application for review under Order XLII of the Civil Procedure Code is appealable — Order XLII rule 7 — Leave to appeal under s.5(1) Appellate Jurisdiction Act — Requirement for certificate on point of law.
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6 September 2007 |
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Applicant granted leave to appeal to resolve whether a review dismissal is appealable under Order XLII rule 7.
Appellate Jurisdiction Act s.5(1) – leave to appeal; Civil Procedure Code Order XLII r.7 – review versus appeal; whether an order dismissing a review is appealable; duty to refer point of law to Court of Appeal.
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6 September 2007 |
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Appeal allowed: Primary Court decision restored because matter was res judicata and respondent failed to prove ownership.
* Civil procedure – res judicata – earlier adjudication in Primary Court (Emaoi Primary Court Civil Case No.32/91) bars relitigation of same subject matter where party was bound. * Civil procedure – judgment formalities – assessor’s signature; alleged defect must be established on record and does not automatically invalidate decision when signatures are present. * Evidence – burden of proof in civil claims – ownership must be proved on balance of probabilities.
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6 September 2007 |
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Claim for land dismissed as res judicata; primary court judgment properly signed and restored, appeal allowed with costs.
Civil procedure – appeal – appellate court's reversal of primary court decision; res judicata – prior Primary Court judgment bars relitigation where same parties and subject matter; procedure – compliance with rule 3(2) G.N. No.2/1988 concerning assessor signatures; evidentiary standard – failure to prove ownership on balance of probabilities.
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6 September 2007 |
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The earlier Primary Court judgment barred the respondent’s land claim; the appellate reversal was set aside and original judgment restored.
Civil procedure – res judicata – prior Primary Court judgment as bar to subsequent claim; Compliance with G.N. No. 2/1988 (rule 3(2)) – assessor’s signature; Evaluation of evidence – burden to prove ownership on balance of probabilities.
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6 September 2007 |
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Court granted extension to appeal where certified judgment was read in applicant’s absence and forgery allegations lacked proof.
Leave to appeal out of time; reliance on certified copy of judgment showing parties absent; preliminary jurat defect not fatal; allegation of forgery requires proof; good cause established where judgment delivered in absence without notice.
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3 September 2007 |
| August 2007 |
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Appeal dismissed: repayment of mortgage effected sale, respondent declared lawful owner; forgery and wife's consent claims rejected.
* Land law – mortgage redemption – whether repayment of debtor's mortgage by another person can operate as consideration for sale, effecting transfer of ownership.
* Evidence – concurrent findings of fact – appellate review where lower courts’ credibility assessments are upheld.
* Evidence – alleged forged document – necessity of convincing proof to impugn admitted exhibit.
* Family/matrimonial property – claim that spouse's consent required for alienation of land – raised late and found without merit.
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30 August 2007 |
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Repayment to redeem a mortgage was held to constitute a sale transferring ownership to the respondent; appeal dismissed with costs.
* Land law – mortgage redemption versus sale – whether repayment of mortgage in consideration for land constitutes transfer of ownership.
* Evidence – evaluation of testimony and documentary evidence; allegation of forged agreement.
* Family/matrimonial property – claim of required spouse consent to sale of land assessed and rejected as after‑thought.
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30 August 2007 |
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Clear admissions in the defence warranted judgment on admission; alleged frustration failed as the event post-dated the repayment obligation.
Civil procedure – Order XII r.4 – Judgment on admissions – Discretion of court; Pleadings – Admissions in written statement of defence can support judgment on admission if clear and unequivocal; Contract law – Frustration – doctrine inapplicable where alleged supervening event post-dates contractual breach or repayment date; Hardship alone not frustration.
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17 August 2007 |
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Where pleadings contain clear admissions of default, a court may enter judgment on admission; frustration inapplicable if the supervening event post‑dates the breach.
* Civil procedure – Judgment on admission (Order XII r.4) – court’s discretion – requirement that admissions be clear and unequivocal.
* Contract law – Doctrine of frustration – effect of timing of supervening event; mere hardship or inconvenience not frustration.
* Pleadings – admissions in written statement of defence can sustain judgment on admission where they unequivocally concede liability.
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17 August 2007 |
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Whether an inspection note issued in revisional proceedings is an appealable order under the Magistrates' Courts' Act.
* Civil procedure – Appealability – Inspection note issued on revisional inspection of Primary Court record – Whether such an inspection note is an appealable order under section 25(1)(b) of the Magistrates' Courts' Act.
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13 August 2007 |
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The applicant’s application to restore an appeal dismissed for non-appearance was granted under section 9 of the Limitation Act.
* Civil procedure – Restoration of appeal – Appeal dismissed for want of appearance – Restoration permissible where sufficient cause shown.
* Limitation law – First Schedule s.9, Law of Limitation Act 10/71 – application for restoration and promptness in taking steps after dismissal.
* Procedure – Merits of intended appeal not to be considered at restoration stage; enquiry limited to cause for non-appearance.
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7 August 2007 |
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Uncorroborated medical record insufficient to set aside dismissal for want of prosecution; application dismissed with costs.
Application to set aside dismissal for want of prosecution; leave to appeal out of time; alleged illness as sufficient cause; insufficiency of unverified outpatient record; requirement for corroborative medical affidavit.
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7 August 2007 |
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Conviction for careless driving quashed for lack of evidence; appellant released and licence restored.
* Traffic law – careless driving – whether prosecution proved careless driving beyond reasonable doubt; evidential weight of sketch plan and vehicle inspection.
* Criminal procedure – accused's silence – failure to call evidence does not justify conviction where prosecution's case is insufficient.
* Sentence – sentencing considerations for first offenders following quashed conviction.
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1 August 2007 |
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Conviction for careless driving quashed where evidence showed avoidance, not negligence, by the appellant.
* Road traffic offence – careless driving – sufficiency of evidence – requirement to prove negligence beyond reasonable doubt. * Evidence – role of sketch plan and vehicle inspection report in determining manner of collision. * Criminal procedure – accused’s silence does not negate prosecution’s duty to prove guilt. * Sentence – appellate consideration unnecessary where conviction unsustainable.
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1 August 2007 |
| July 2007 |
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31 July 2007 |
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Suit struck out for lack of jurisdiction under Land Disputes Courts Act after transitional period expired.
Land law; jurisdiction; Land Disputes Courts Act 2002; s.54 transitional provisions; expiry of transitional/grace period; effect of post-commencement transfer of land dispute jurisdiction; striking out for want of jurisdiction.
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18 July 2007 |
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Court struck out suit for lack of jurisdiction because claims arose from a land dispute and transitional extensions expired.
* Jurisdiction – land disputes – whether claim arises from a dispute concerning land – effect of Land Disputes Courts Act 2002 and transitional provisions (s.54(3),(4)).
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18 July 2007 |
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Appellant’s proof of private gift and long possession upheld; district court erred in factual evaluation.
Land law – proof of ownership and possession – gift by private owner – requirement for clan witnesses where land is not clan land – appellate review of factual findings.
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3 July 2007 |
| June 2007 |
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Respondent bank lawfully succeeded debts; expiry of facility did not discharge default; interest awards modified (pre-judgment struck, post-judgment set at 7%).
Bank reorganization – succession to assets and liabilities – borrower’s duty to inquire; Contract law – expiry of facility does not discharge indebtedness where in default; Evidence – borrower’s admissions and correspondence as proof of default; Limitation – twelve-year period for recovery of money secured by mortgage and arrears of interest; Civil procedure – pre-judgment interest must be pleaded; post-judgment interest governed by Order 20 r.21(1) (default 7%).
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28 June 2007 |
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Court struck out applicant's suit for lack of jurisdiction; it arose from a land dispute and the grace period expired.
Land law; jurisdiction of ordinary civil court versus Land Division under Land Disputes Courts Act 2002; application and expiry of transitional provisions s.54(3)–(4); claims for compensation and wrongful allocation as land disputes.
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18 June 2007 |
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The applicant’s counsel failed to show sufficient grounds for adjournment, leading to striking out the plaint with liberty to refile.
Civil procedure – Adjournment under Order XVII R.1 – sufficiency of reasons; Duty of counsel to inform and prosecute; Failure to prosecute – striking out plaint; Land disputes – jurisdictional/time-frame considerations; Costs awarded each party to bear their own.
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8 June 2007 |
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Court entered ex‑parte judgment for the applicant against the respondent for diverting company funds, awarding damages, interest and costs.
Civil procedure — Ex parte proceedings under Order IX r.6(1)(a) of the Civil Procedure Code; Company law — director's diversion of company funds/breach of fiduciary duties; Remedies — recovery of special damages, award of general damages, interest and costs.
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6 June 2007 |
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Ex-parte judgment awarding plaintiff US$109,530 for diversion of company funds by an absconding director.
Civil procedure – ex parte proceeding under Order IX r.6(1)(a) – Director’s contract with company – Diversion/misappropriation of company receipts into personal account – Proof on affidavit and documentary exhibits – Award of special and general damages, interest and costs.
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6 June 2007 |
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Citation of s.95 CPC was a curable error; court should have allowed amendment or proceeded under Order XLII R.1 & R.3 rather than striking out.
Civil Procedure – Review applications – Proper provision for review: Order XLII R.1 & R.3 – Inherent powers (s.95 CPC) mis-invoked where specific provision exists – Error curable; dismissal for mere mis-citation was inappropriate.
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4 June 2007 |
| May 2007 |
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A valid inter vivos gift vested title in the appellant; inheritance claim by the respondent failed.
* Succession and property law – inter vivos gift – effect of valid, witnessed transfers during lifetime – such gifts vest title in donee and exclude inheritance claims. * Civil procedure – extension of time for appeal under MCA s.25(1)(b). * Pleadings – defective verification clause removable without striking out. * Letters of administration – unnecessary where owner validly disposed of property during lifetime.
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31 May 2007 |
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The court granted leave to appeal on a point of law about the primary court’s procedure and ordered no costs.
• Civil procedure – leave to appeal – Court of Appeal – grant of leave where a point of law concerning primary court procedure arises; • Interest of justice; • No order as to costs.
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28 May 2007 |
| April 2007 |
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Affidavits sworn before prison officers with defective jurats are invalid; related applications are struck out.
* Criminal procedure — Affidavits — Jurat requirements (place, date, authorised signature) — Notaries Public and Commissioners for Oaths Ordinance (Cap 12) — persons authorised to administer oaths — prison officers not authorised — defective jurats invalidate affidavits — applications struck out.
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27 April 2007 |
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Convictions for robbery with violence quashed for lack of evidence of violence and insufficient proof of stolen amount.
Criminal law - robbery with violence; standard of proof beyond reasonable doubt; requirement of evidence of violence at time of taking; proof of amount stolen; appellate review of inadequate trial proceedings.
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2 April 2007 |
| March 2007 |
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Appellant proved purchase and long possession of land; trial judgment quashed and vacant possession granted.
Land law – unregistered land – proof of sale and possession – credibility of witnesses – evaluation of evidence on balance of probabilities – appellate intervention where trial court misapplies evidentiary assessment.
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8 March 2007 |
| February 2007 |
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Application for extension of time to appeal dismissed as incompetent and for failure to show sufficient cause for a four-day delay.
Civil procedure — Applications for extension of time to appeal — Competence of application requiring citation of empowering statute (s.25(1)(b) Magistrates' Courts Act) — Computation of appeal period from receipt of judgment — Requirement to show sufficient cause for delay.
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23 February 2007 |
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When a subordinate court cancels bail, the accused must appeal under s.161 CPA rather than bring a fresh High Court application.
* Criminal procedure – Bail – Cancellation of bail by subordinate court – Remedy is appeal under s.161 Criminal Procedure Act, not fresh High Court application; s.150 change of circumstances may justify re-admission. * Procedure – High Court may dispense with personal attendance where application is clear and applicant incarcerated distant remand prison.
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12 February 2007 |