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Citation
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Judgment date
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| December 1993 |
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Conviction stands despite erroneous citation where particulars were clear; sentence substituted with a fine as imprisonment without option was improper.
Criminal law – particulars of offence – erroneous statutory citation – defect cured where particulars unequivocal and accused understood charge; Criminal procedure – section 388 (revision) – technical defects not occasioning failure of justice; Sentencing – where statute prescribes fine or imprisonment, courts should normally give first offenders the option of a fine unless good reasons exist.
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31 December 1993 |
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Appeal against theft conviction and three-year sentence dismissed; prosecution witnesses found credible and sentence not excessive.
Criminal law – Theft – Sufficiency and credibility of prosecution evidence; burden and standard of proof; failure to call potentially corroborative witness not fatal if point undisputed; sentencing – excessiveness review.
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31 December 1993 |
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Conviction upheld despite defective statutory citation; two-month imprisonment set aside and substituted with a fine for failure to afford fine option.
Criminal law – defective charge – citation of repealed provision – particulars may cure defect if accused not misled or prejudiced; Sentencing – where statute permits fine option court must afford it or state reasons for denial; absence of reasons entitles accused to benefit of fine option.
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31 December 1993 |
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Conviction based on inadequate evidence and an improperly accepted guilty plea was quashed and sentence set aside.
Criminal procedure – Plea of guilty – Magistrate’s duty to ensure voluntariness and understanding of facts before treating plea as conviction; sufficiency of evidence to support conviction; appellate relief by quashing conviction and setting aside sentence.
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30 December 1993 |
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Appeal against conviction for procuring Centre funds by forged/unauthorized letters dismissed; court upheld documentary and handwriting-based findings.
* Criminal law – Forgery and obtaining money by false pretences – Documents purporting to authorize payments – Proof of genuineness of signatures and provenance of letters.
* Evidence – Documentary and handwriting opinion evidence – admissibility and weight – role of office procedure evidence in proving forgery.
* Appeal – Interference with trial court’s credibility findings – standard of review.
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30 December 1993 |
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30 December 1993 |
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Conviction for indecent assault upheld; original sentence unlawful and reduced to five years, compensation order upheld.
Criminal law – Sexual offences – Corroboration and credibility of complainant’s evidence in indecent assault; Criminal procedure – Appellate review of sentence – limits on subordinate courts’ sentencing powers for non‑scheduled offences; Compensation orders in sexual offence matters.
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17 December 1993 |
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A chamber application for temporary injunction against demolition was struck out for defective affidavits and improper procedure involving the government.
Land — Demolition notices — Temporary injunction application — Chamber procedure — Defective/unauthorised affidavits — Common affidavit for multiple independent plaintiffs improper — Relief against Government requires appropriate procedure — Application struck out.
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15 December 1993 |
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No evidence of enticement and section 140 bars compelling a wife to return; appeal dismissed with costs.
Family law – Enticement and loss of consortium – Requirement of evidence of inducement; Law of Marriage Act s.140 – prohibition against compelling cohabitation; necessity of hearing before ordering return of spouse.
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14 December 1993 |
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An arresting officer’s shooting during a resisted arrest was held reasonable and the accused acquitted of manslaughter.
Criminal law – Use of force when effecting arrest; defence of arrest and self‑protection; reasonableness and proportionality of firearms use by arresting officer; manslaughter v. lawful use of force; assessors’ unanimous finding.
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13 December 1993 |
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Unreliable single-witness night and voice identifications, without corroboration, insufficient to prove murder beyond reasonable doubt.
Criminal law – Murder – Identification evidence – Single-witness night identification and voice identification require great caution and corroboration; contradictions undermine credibility. Circumstantial evidence and mere presence/employment at scene insufficient for conviction; burden of proof beyond reasonable doubt not met.
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13 December 1993 |
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Spousal identification evidence may be unreliable; reasonable doubt entitled the appellant to acquittal and release.
Criminal law – Identification evidence; spousal witnesses – no rule requiring corroboration but caution warranted; benefit of reasonable doubt; appellate intervention where conviction is unsafe.
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10 December 1993 |
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Reported
Civil Practice and Procedure - Consolidation of civil cases - Oral application for — Whether competent - Rule 2 of Order 43 of the
Civil Procedure Code. |
10 December 1993 |
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DPP appeal allowed; acquittal set aside and respondent convicted of careless driving causing deaths and injury.
Road Traffic — appeal against acquittal — collision with stationary vehicle — extent to which third party negligence absolves following driver — temporary dazzlement by oncoming lights — careless driving (s.41) — appropriate conviction and sentence.
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10 December 1993 |
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Appellate court upheld conviction and minimum sentence for theft by a public servant on credible evidence.
Criminal law – Theft by a public servant – Sufficiency of evidence and witness credibility – Replacement of taken property – Sentence: minimum prescribed imprisonment and compensation upheld.
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8 December 1993 |
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Procedural irregularities and failure to follow statutory transfer rules warranted setting aside conviction, sentence and restitution; retrial ordered.
* Criminal procedure – irregular trial record – transfer of magistrate and failure to invoke s.214 continuation on recorded evidence – prejudice to accused.
* Criminal law – theft/stealing – identification and proof of ownership of alleged stolen property insufficient on record.
* Remedy – conviction, sentence and restitution order set aside; retrial de novo ordered.
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8 December 1993 |
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Reported
Civil Practice and Procedure - Adjournment — Advocate of a party engaged in another court - Whether ground for adjournment - Order 17 Rule 1 (2)(c) Civil Procedure Code and the mischief the rule was intended to curb. |
6 December 1993 |
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Payment after the applicant eloped with respondent's daughter was customary compensation, not dowry; appeal dismissed.
Customary law – GN 279/63 – Article 89 (compensation for inducing a daughter to run away) and Article 91 (compensation not to be counted as dowry); distinction between fidia/faini (compensation) and mahari (dowry); characterization of payments following elopement.
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6 December 1993 |
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4 December 1993 |
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Plaintiff's plaint rejected for non-compliance with Advocates Ordinance s.44 endorsement requirement; service defects also noted.
* Civil procedure – service on foreign defendants – compliance with procedural rules for service required before proceeding against unserved parties.
* Statutory formality – Advocates Ordinance s.44 – mandatory endorsement of name and address of person preparing instrument; registering authority may not accept instruments lacking endorsement.
* Effect of non-compliance – documents not properly before court; plaint liable to rejection.
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3 December 1993 |
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Trial court’s finding of irretrievable breakdown upheld; appellate court’s interference set aside; custody orders must be considered.
Family law – divorce – whether marriage irretrievably broken down – sufficiency of evidence of ill-treatment and assaults; appellate interference – limits on appellate court upsetting trial findings; family law – duty to consider custody of minor children.
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2 December 1993 |
| November 1993 |
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Respondents' long possession and residential use, supported by valid grant findings, defeat appellant's land claim; appeal dismissed with costs.
* Land law – disposition of a right of occupancy – requirements under Land Regulations for valid disposition – distinction between deemed right of occupancy and contractual right of occupancy; effect of long possession and residential improvements on right to occupy.
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30 November 1993 |
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26 November 1993 |
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Court accepted the National Construction Council valuation and awarded the applicant the balance after insurer’s payment.
Damages — valuation of property damage — admissibility and weight of expert valuation by National Construction Council carried out in absence of parties — defendants’ non-attendance — deduction of prior insurer payment from judgment.
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26 November 1993 |
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Conviction for malicious damage affirmed; compensation order set aside for lack of evidence; civil suit suggested.
Criminal law – malicious damage to property – trespass by cattle – conviction supported by independent witness evidence; Compensation – award set aside where no evidence of value; Allegation in charge is not evidence; civil remedy available for monetary recovery.
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25 November 1993 |
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Court found counsel’s uncontradicted excuse for non-appearance credible and held an incorrect statutory citation is curable by amendment.
* Civil procedure – restoration of dismissed chamber application – sufficiency of advocate’s explanation for non-appearance – curability of erroneous citation of statutory provision (s.95 C.P.C. / s.6(6) C.P.C.).
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23 November 1993 |
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A petitioner may choose the forum for matrimonial proceedings; section 76 Law of Marriage Act grants concurrent jurisdiction and territorial limits do not bar filing in High Court.
Family law – Matrimonial jurisdiction – Divorce proceedings – Section 76 Law of Marriage Act 1971 – Concurrent original jurisdiction of resident magistrate’s court, district court and primary court – Choice of forum – Territorial jurisdiction not ousting petitioner’s option to file in High Court.
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22 November 1993 |
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Weak night-time identification, failure to call a key witness and credibility defects led to acquittal for lack of proof beyond reasonable doubt.
Criminal law — Murder — Identification evidence — Visual identification at night — dangers of mistaken identity where visibility, suddenness of attack and opportunity to observe are not established; voice identification unreliable in such circumstances. Evidence — Failure to call material witness — adverse inference under evidence law. Credibility — Delay in reporting and inconsistent conduct of eyewitness as factor undermining prosecution case. Burden and standard — prosecution must prove guilt beyond reasonable doubt.
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19 November 1993 |
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Convictions cannot rest on uncorroborated voice identification and unreliable witness conduct; accused acquitted for lack of proof.
Criminal law – Murder – Identification evidence – Voice-only identification – reliability and dangers of voice recognition – delay and inconsistent testimony – failure to call material witnesses – proof beyond reasonable doubt.
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19 November 1993 |
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Conviction quashed for insufficient, unreliable documentary and caution-statement evidence and unresolved reasonable doubt.
Criminal law – sufficiency of evidence; circumstantial/documentary evidence – gate passes v cash sale receipts; admissibility and reliability of cautioned statement given suspect medical condition; onus of proof and reasonable doubt; requirement to investigate alternative explanations and involve other witnesses (gatekeeper/customers).
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18 November 1993 |
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Circumstantial evidence tied the appellant to theft of government tyres; appeal against conviction, sentence and compensation dismissed.
* Criminal law – Obtaining government goods/false pretences – unauthorised removal of stores (motor tyres).
* Criminal evidence – Circumstantial evidence – inference of knowledge and participation from conduct of driver.
* Criminal procedure – Appeal against conviction and sentence – sufficiency of evidence and appropriateness of sentence.
* Restitution – Compensation order affirmed.
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17 November 1993 |
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Respondent’s ownership of disputed land upheld due to stronger, corroborated evidence; appeal dismissed.
Land dispute – ownership contested – oral gift/transfer without written proof – credibility and corroboration of witnesses decisive; appellate review of Primary and District Court findings; procedural continuity where parties/judge die (Order XXII Rule 6).
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12 November 1993 |
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Appellant failed to prove an oral collateral agreement to vary the written sale; appeal dismissed and first appellate judgment upheld.
Property law – sale of land – written receipt versus alleged collateral oral agreement; Parol evidence rule – admissibility of oral evidence to vary a written contract only if mistake, fraud, or separate consistent/subsequent agreement proved; Evidence – credibility and corroboration of independent witness; Conduct of parties as relevant to credibility and relief.
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5 November 1993 |
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A counterclaim must disclose an independent cause of action and may be decided even where the plaintiff fails to reply.
Civil procedure — Counterclaim — Must disclose independent cause of action capable of standing on its own — Distinction between counterclaim, cross-claim and set-off — Failure to reply to properly pleaded counterclaim does not automatically bar adjudication.
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4 November 1993 |
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Appellate court remitted land dispute for additional oral evidence because the trial court failed to hear material witnesses.
Appeal – additional evidence – Order XXXIX (1) & (2) Civil Procedure Code 1966 – where trial record inadequate, appellate court may order recording of further oral evidence – remittal to another primary court to record witnesses (including village elders) – land dispute and credibility/locality evidence.
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4 November 1993 |
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Appeal dismissed: fine within statutory limits and three-year mandatory licence cancellation under Road Traffic Act upheld despite appellant's livelihood argument.
Road Traffic Act – section 63(2) – fines within statutory limits; Road Traffic Act – section 27(1)(a) – mandatory minimum three-year cancellation where offence falls under section 41; Dependence on licence for livelihood not a special reason to avoid mandatory cancellation.
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4 November 1993 |
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Fresh psychiatric evidence rendered the appellant’s guilty plea unsafe; conviction and sentence were set aside and release ordered.
Criminal law – guilty plea – appealability – s.360(1) Criminal Procedure Act restricting appeals after guilty plea except on sentence – exception where fresh material evidence (mental incapacity) renders plea unsafe – conviction and sentence liable to be set aside.
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2 November 1993 |
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Non-retirement of authorised imprests is a civil debt, but failure to account for entrusted goods can amount to stealing; sentence reduced.
Criminal law – Stealing by servant – Non-retirement of lawfully authorized imprests does not necessarily amount to theft; such matters may be civil debts – Conversion/appropriation of entrusted movable property may constitute stealing – Sentence may be reduced where original term is excessive given value and mitigation.
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1 November 1993 |
| October 1993 |
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Possession alone, without recentness or other linking evidence, cannot sustain a robbery with violence conviction.
Criminal law – robbery with violence; possession of alleged stolen property – doctrine of recent possession; requirement of recency to raise presumption of guilt; possession alone insufficient where significant lapse of time and no other linking evidence.
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29 October 1993 |
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Court grants leave to raise a constitutional challenge on appeal and orders filing of petition within fourteen days.
* Constitutional law – leave to raise constitutional questions for the first time on appeal – Court of Appeal’s discretion to grant leave.
* Criminal procedure – statutory time limits (s.351 Criminal Procedure Act) – effect of delay and power to permit petition outside ordinary time.
* Procedure – application by notice of motion for leave to institute constitutional proceedings – respondent’s objection overruled.
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26 October 1993 |
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25 October 1993 |
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Conviction for criminal trespass quashed where appellant showed bona fide purchase, possession and the dispute was civil in nature.
Criminal law – Trespass (s.299 Penal Code) – Conviction unsustainable where accused shows bona fide purchase, possession and documentary evidence – Dispute over land title is essentially civil and not properly resolved by criminal trespass prosecution.
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25 October 1993 |
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Disqualification of a judge does not automatically mandate a retrial; successor may continue from the predecessor’s stage.
* Civil procedure – Succession of judge – Order 18 r.10(1) – Successor judge may deal with evidence recorded by predecessor and proceed from predecessor’s stage if exercised judicially and parties heard.
* Judicial disqualification – Disqualification of judge does not automatically require rehearing of entire trial.
* Evidence – Recorded testimony before a disqualified judge not automatically struck out as hearsay; party must show material defect.
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22 October 1993 |
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Court dismissed application for extension of time to appeal, finding the proposed appeal hopeless despite wrong statutory citation.
* Criminal procedure – extension of time to appeal – wrong citation of statute (Limitation Act) does not necessarily defeat application if affidavit contains material facts – court may treat application under Criminal Procedure Act. * Extension of time – guided by whether proposed appeal has realistic/overwhelming chance of success; hopeless appeals should not be admitted. * Conviction – corroborative evidence, identification and cautioned statements may render intended appeal bound to fail.
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22 October 1993 |
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Court ordered interlocutory public sale of disputed rice to prevent natural decay, with proceeds deposited subject to protective conditions.
Civil procedure – interlocutory relief – sale of perishable/deteriorating goods by court broker – necessity of pre‑sale inspection – protection of competing rights and deposit of proceeds.
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21 October 1993 |
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Leave to appeal refused where alleged vehicle breakdown was not sufficient cause to set aside a default judgment.
Civil procedure — Setting aside default/ex parte judgment — Sufficiency of cause — Advocate’s transport breakdown — Leave to appeal under s.5(1)(c) Appellate Jurisdiction Act — No arguable prospect of success.
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15 October 1993 |
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A disputed motor‑vehicle sale was a civil contract, not obtaining money by false pretences; conviction quashed.
Criminal law – Obtaining money by false pretences – Distinction between civil contract dispute and criminal deception – Requirement of false representation/pretence and criminal intent – Insufficient evidence and failure to prove offence beyond reasonable doubt.
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13 October 1993 |
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Conviction for obtaining money by false pretences quashed where transaction was a contractual sale lacking intent to defraud.
Criminal law – Fraud/false pretences – Whether conduct constitutes obtaining money by false pretences – Requirement of false representation and intent to defraud – Distinction between civil contract disputes and criminal fraud – Insufficiency of evidence where sale and payment negotiations existed.
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13 October 1993 |
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Appeal allowed: retrial-order ground irrelevant and conviction quashed for insufficient evidence and trial misdirection.
Criminal law – stealing by agent – sufficiency of evidence; appellate review of trial magistrate’s inferences and misdirections; effect of High Court retrial orders on separate subordinate court proceedings (retrials must relate to same original cause); requirement to prove guilt beyond reasonable doubt; treatment of possibly interested or collusive witnesses.
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11 October 1993 |
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Carrier held liable for wilful misconduct and diversion of cargo; plaintiff awarded value of cobalt, containers, freight, interest and costs.
Carriage of goods by rail – non-delivery and diversion of cargo – admissibility and weight of shipping/railway documents – wilful misconduct by carrier’s servants – fundamental breach of contract of carriage – Owner’s Risk/exemption clause in tariff inapplicable where wilful misconduct proved – damages for loss of cargo, containers and freight; interest and costs.
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7 October 1993 |