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Citation
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Judgment date
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| December 2004 |
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An ex parte injunction restrained the respondent from enforcing a new rent increase pending determination of an earlier challenge.
Civil procedure – Interim injunction (ex parte) – Rent increase – Pending suit challenging prior rent increase – Abuse of court process – ss. 95 and 68(c) Civil Procedure Code, 1966.
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29 December 2004 |
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Specific performance granted after vendor disappeared; damages refused for lack of proof.
* Land — Contract for sale of land — existence and terms of contract proved by affidavits and magistrate-witnessed document — entitlement to specific performance. * Specific performance — appropriateness where vendor disappears after partial payment and transfer not effected. * Damages — claim for special/anticipated losses requires specific proof; absence of such evidence defeats claim. * Interim or supplementary relief — premature where part of purchase price remains unacknowledged despite funds deposited in court.
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28 December 2004 |
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Specific performance ordered where plaintiff proved contract and payment on the balance of probabilities; damages not proved.
* Contract law – sale of land – existence and performance of contract – specific performance granted where contract proved on balance of probabilities; * Evidence – affidavits and documentary proof sufficient to establish entitlement to equitable relief; * Remedies – specific performance granted; claim for special damages not proven and dismissed; * Procedure – substituted service and ex parte proceedings allowed where defendant cannot be traced.
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28 December 2004 |
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Whether circumstantial and forensic evidence proved the accused’s participation in a bombing conspiracy.
Criminal law – Conspiracy to murder – Circumstantial evidence – Requirement to exclude every reasonable hypothesis of innocence – Forensic evidence and risk of contamination – Association and shared use of property insufficient to prove guilt.
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22 December 2004 |
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Reported
Terrorism - Conspiracy to commit murder -Accused had no knowledge of plans and activities of conspirators - Whether there is a basis for inferring guilt of accused.
Criminal law - Terrorism - Conspiracy to commit murder - Accused had no knowledge of plans and activities of conspirators - Whether there is a basis for inferring guilt of accused.
Evidence - Circumstantial evidence - Accused was a friend of conspirators — Accused had no knowledge and activities of conspirators - Whether accused guilty of conspiracy to commit murder. |
22 December 2004 |
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Failure to plead required land value ousts Land Division jurisdiction; separate preliminary‑objection notices contravene procedural rules.
Civil procedure – preliminary objections – notice of preliminary objection filed separately contravenes Order VIII Rule 2 and may be disregarded; Locus standi – challenges based on authority/heirs require evidential resolution; Land jurisdiction – section 37 Act No.2 of 2002 requires pleading the monetary value of land-related claims for High Court (Land Division) pecuniary jurisdiction; Failure to plead value may lead to striking out plaint rather than merit dismissal.
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20 December 2004 |
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Fine and forfeiture set aside: shotgun not covered by s.71 and compounding officer lacked authority.
Criminal law – Wildlife Conservation Act s.71 (possession offences) – statutory items and required circumstances; compounding of offences – authority under s.82(2); admissibility/voluntariness of composition form signature.
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20 December 2004 |
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17 December 2004 |
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An injunction against the respondent was refused because a government demolition notice rendered relief futile.
* Temporary injunction — application to restrain eviction and interference with business operations under a marketing licence
* Road reserve / public land — allegation premises occupy road reserve; TANROADS demolition notice
* Futility of relief — interim order inappropriate where third‑party governmental demolition may supersede
* Balance of convenience and irreparable harm — injunction refused where relief would be ineffective
* Proper defendant for injunctive relief — injunction should target the party with enforceable control over the land
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15 December 2004 |
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Appellant's two‑year sentence for abusive language exceeded six‑month statutory maximum; appeal allowed and appellant released.
Criminal law – Sentencing – Section 89(1)(a) Penal Code (abusive/insulting language) – statutory maximum six months – appellate variation of illegal/excessive sentence.
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10 December 2004 |
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High Court lacks jurisdiction over appeals originating in a Ward Tribunal; appeal dismissed for want of jurisdiction.
Civil procedure – Jurisdiction – Appeals – Appeals from Ward Tribunal – Section 20, Ward Tribunal Act No.7/1985 requires appeals from Ward Tribunal to lie to District Court; High Court cannot entertain such appeals directly.
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7 December 2004 |
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Application to review a long‑standing ex parte judgment was procedurally incorrect, time‑barred and dismissed with costs.
* Civil procedure – appeals from Primary Courts – Civil Procedure Code 1966 inapplicable; Magistrates' Courts Act 1984 and GN No.312/1964 apply.
* Ex parte judgments – correct remedy is application to set aside, not review, where entered after substituted service.
* Delay – inordinate delay (15 years) can justify dismissal of late challenges and indicate intent to delay execution.
* Evidence – allegations about lack of letters of administration require supporting affidavit from the person concerned.
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7 December 2004 |
| November 2004 |
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An application for stay pending appeal was struck out for citing an inapplicable procedural provision and failing Rule XXXIX requirements.
* Civil Procedure – Stay of execution pending appeal – Appeal court applications must be brought under Order XXXIX Rule 5(1) not Order XXI Rule 24.
* Civil Procedure – Competence of proceedings – A Chamber Summons citing an inapplicable provision cannot be rescued by vague reference to "any other enabling provision".
* Civil Procedure – Requirements for stay under Order XXXIX Rule 5(3) – must depose to substantial loss, absence of unreasonable delay, and security.
* Civil Procedure – Fundamental procedural defects may warrant striking out rather than amendment.
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30 November 2004 |
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An appellate stay must be sought under Order XXXIX Rule 5(1); invoking Order XXI Rule 24 is incompetent.
Civil procedure — Stay of execution — Application to appellate court must be made under Order XXXIX Rule 5(1) — Order XXI Rule 24 inapplicable where decree not sent for execution — Chamber summons’ vague citation cannot cure invocation of wrong provision — Failure to allege Rule 5(3) facts fatal.
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30 November 2004 |
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An unopposed ex parte adoption/guardianship petition under the Adoption Ordinance was granted; petitioners appointed guardians ad litem.
* Adoption Ordinance (Cap. 335) – appointment of guardians ad litem – ex parte petition – unopposed application – grant of petition.
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29 November 2004 |
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An unopposed adoption petition was heard ex parte and the court granted appointment of the petitioners as guardians ad litem.
Adoption — Appointment of guardian ad litem — Petition under Adoption Ordinance — Ex parte hearing where no objection — Petition granted.
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29 November 2004 |
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29 November 2004 |
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Whether the High Court may, under s.78(6), preserve caveats and protect equitable interests absent a pending suit.
Land Registration Ordinance s.78(6) — Court’s power to give directions where caveat exists; chamber application vs main suit; caveats protecting equitable interests; s.78(7) construed with s.78(6) — second caveat prohibition not determinative on preliminary objection; locus standi of persons claiming equitable interests.
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19 November 2004 |
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Plaintiff’s statutory notice to the council held valid; plaint disclosed no cause of action against third defendant for plot 954, amendment allowed.
* Civil procedure — Preliminary objections — statutory notice to municipal authority — absence of prescribed format; validity of annexed notice letter. * Cause of action — sufficiency of plaint — whether plaint and annexures disclose a cause of action against a defendant regarding land allocation (plot No. 954). * Amendment of plaint — leave to amend under GN No. 288 of 1971 (Order VII, First Schedule to the Civil Procedure Code).
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17 November 2004 |
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Court may order formal proof at trial of facts deemed proved at preliminary hearing where interest of justice requires.
* Criminal procedure – Preliminary hearing (s.192) – Memorandum of agreed facts – Whether matters 'deemed proved' at PH can be directed to be formally proved at trial (s.192(4)). * Court discretion and interest of justice – accused's claim of not understanding PH memorandum may require prosecution to prove disputed facts. * Burden of proof – prosecution remains obliged to prove criminal case beyond reasonable doubt.
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8 November 2004 |
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Appellate court dismissed challenge to rape conviction, finding evidence (including medical corroboration) credible and no judicial bias or unfair trial.
Criminal law – rape – evidence of complainant and medical corroboration; Evidence Act and sexual offences amendments – corroboration not required if court satisfied with victim's credibility; Criminal Procedure – applicability of committal-statement provisions to High Court trials only; judicial recusal – withdrawal requires evidence of close relationship or interest; right to defend – accused must avail procedural rights.
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1 November 2004 |
| October 2004 |
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25 October 2004 |
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Whether a court broker may recover extra execution expenses where a sale order was made then stopped under Rule 13 proviso.
* Taxation – Court broker fees and disbursements – Interpretation of item 1, Part I, Second Schedule and Rule 13 of GN 315 of 1997 – whether 2% fee covers disbursements or additional expenses available under proviso when order for sale is stopped.
* Procedure – Review/cross-reference against Taxing Master – requirement to follow proper procedure and limited appellate interference absent error in principle.
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25 October 2004 |
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Inter partes stay struck out for failing to cite the statute; omission renders application incompetent.
Civil procedure — Competence of application — Requirement to cite statute and legal provision — Section cited without naming statute renders application incompetent — Defect not cured by ex parte urgency or post-service amendment.
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22 October 2004 |
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Failure to cite the enabling statute in a chamber summons renders an inter partes application incompetent and liable to be struck out.
Civil procedure — Preliminary objection — Non‑citation of enabling statute in chamber summons — Court not properly moved — Application incompetent — No curing by reading in or post‑service amendment — Ex parte urgency exception distinguished — Binding Court of Appeal authority.
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22 October 2004 |
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Court reviewed and set aside part of an interlocutory order obtained by procedural irregularity, directing both parties off the premises pending trial.
* Civil procedure – interlocutory/urgent applications – necessity to specify ex parte or inter partes hearing and proper form of orders
* Civil procedure – extracted orders and enforcement – validity where procedural irregularity/misleading information led to eviction
* Review – power to review or vary interlocutory order obtained by misleading the court
* Interim relief – ordering mutual exclusion from occupation pending suit determination
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20 October 2004 |
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Specific performance denied where statutory nationality condition was unmet; payment did not create an enforceable land sale contract.
Land law – sale by public body – invitation to tender and conditional offer – nationality requirement for ownership – contingent contract unenforceable until condition fulfilled – specific performance unavailable where legal condition remains unsatisfied; public-policy prohibition on circumventing statutory land allocation to non-citizens; mesne profits for unlawful occupation.
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15 October 2004 |
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An accused properly charged with armed robbery under sections 285–286 is barred from bail by statute; Act No.4/2004 is non‑retrospective.
* Criminal procedure – Bail – Whether bail may be granted to an accused charged with armed robbery – effect of amendments barring bail for specified offences.
* Penal law – Armed robbery – recognition as species of robbery where particulars allege use or threat with dangerous/offensive weapon under ss 285 & 286.
* Statutory interpretation – Act No.4/2004 (s.287A) not retrospective; earlier amendments to Criminal Procedure Act can bar bail.
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11 October 2004 |
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Court permits withdrawal to pursue mediation, refuses defendant's costs, and orders settlement timetable notification within 60 days.
Mediation/settlement — Withdrawal with leave under Order 23 CPC — Court may encourage settlement but refuse costs where settlement process lacks transparency — Court may condition leave to withdraw by requiring notification of settlement schedule.
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11 October 2004 |
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Reported
Civil Practice and Procedure - Bill of Costs - Judge orders bill of costs to be presented before a Taxing Officer for taxation - Taxing officer refuses to Conduct taxation of the bill of costs - Whether proper.
Civil Practice and Procedure - Bill of Costs — Instruction fees — Whether or not an advocate has been instructed to be determined during taxation. |
5 October 2004 |
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Interim application struck out for procedural and jurat defects, but leave granted to refile within 14 days.
* Civil procedure — interim relief — proper provision for interim/ex parte orders — Order XXXVII Rules 1–3 and section 95 (inherent jurisdiction).
* Civil procedure — mode of application — requirement for Chamber Summons under Order XLII Rule 2 (and related proviso to Order XLIII Rule 2).
* Affidavits — jurat formalities — identification before Commissioner for Oaths; defect and curability.
* Remedy — striking out defective application with leave to refile; no order as to costs.
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5 October 2004 |
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Conviction for obtaining money by false pretences quashed where funds were advanced under a contract to supply timber.
* Criminal law – Obtaining money by false pretences – elements and proof required – distinction between fraud and unpaid contractual debt.
* Civil v criminal remedy – breach of contract/restitution as appropriate remedy for failure to supply goods.
* Evidence evaluation – trial and first appellate courts’ duty to properly assess documentary and oral evidence (Exhibit A).
* Improper use of criminal prosecution to recover commercial debts.
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4 October 2004 |
| September 2004 |
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Failure to hold mandatory pre-trial conference and mediation vitiated subsequent proceedings; court quashed orders and directed restart from earlier date.
Civil procedure – pre-trial conference and mediation – mandatory nature of pre-trial/mediation procedures; failure to conduct them vitiates subsequent proceedings – Order XXII r.4 (joinder of legal representative) and Limitation Act period for substitution of deceased party; remedial order to quash and restart from pre-defect stage.
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23 September 2004 |
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Identification evidence sufficiently established guilt; conviction upheld, but caning reduced to statutory twelve strokes.
* Criminal law – armed robbery – identification evidence – adequacy of observation, lighting, prior acquaintance, and independent witness corroboration.
* Evidence – alleged interested witnesses – requirement for corroboration where complainants are related or have interest.
* Criminal procedure – alibi defence – incompatibility with positive identification.
* Sentence – corporal punishment – statutory limit of twelve strokes.
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13 September 2004 |
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Taxing Master erred by applying Schedule XI instead of Schedule IX; perusal fees are separate and taxation remitted for correction.
Advocates' fees – GN 515/1991 – Rule 40 and Schedules – omission of Schedule IX construed as lapsus; Schedule IX (fees for contentious proceedings) applies to instruction fees; perusal is a separate taxable item; liquidated vs unliquidated claims; taxing officer’s discretion must be judicially exercised; remittal for taxation with directions.
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10 September 2004 |
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Preliminary objections (jurisdiction, non-joinder, cause of action) dismissed; suit proceeds despite road-reserve complications.
* Civil procedure – Preliminary objections – requirements of Mukisa Biscuit test – objection must raise a pure point of law to dispose of suit.
* Jurisdiction – Pecuniary jurisdiction – court not ousted by informal valuation; registered valuer’s report required; plaint’s claimed amount important.
* Joinder – Non-joinder of Government/TANROADS not automatically fatal where plaintiff has no complaint against third party; efficacy of injunction may be affected by third-party actions (demolition notice).
* Relief – Inconsistencies in plaint as to damages, declaratory relief and specific performance considered but not determinative at preliminary stage.
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8 September 2004 |
| August 2004 |
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Prior suit withdrawn without leave precluded reinstitution; present action held res judicata and dismissed with costs.
* Civil procedure – Res judicata – Suit previously withdrawn with costs but without leave to refile – Subsequent fresh suit precluded under section 9 and section 10 of the Civil Procedure Code and Order XXIII. * Civil procedure – Withdrawal of suit – Requirement of express leave to reinstitute to avoid bar on fresh proceedings. * Limitation – Time-bar objection raised but not determined as preliminary objections were dispositive. * Jurisdiction – Question raised whether customary/deemed occupancy matters lie within Village Land Councils/Ward Tribunals or High Court (not decided).
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24 August 2004 |
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Plaintiff’s land claim struck out for failure to plead cause of action and comply with probate/representative requirements.
Land law – pleadings – Order VII Rules 1(e) and 4 CPC – Probate and Administration Ordinance Cap 445 – cause of action – locus standi – non-joinder of administrators of deceased estate – Attorney-General not necessary where no claim against Government.
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14 August 2004 |
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Late notice of appeal received outside the statutory ten-day period is invalid; no application for extension, appeal struck out.
Criminal procedure – Notice of appeal – Section 361(1) – ten-day filing period – date of filing/receipt controls – late notice ineffective – leave to file out of time requires formal application – failure to apply renders appeal incompetent.
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10 August 2004 |
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Interim status quo protects lawful occupants; leave for prerogative relief and injunction granted despite strike‑out and time‑bar objections.
Administrative law – prerogative orders (certiorari, prohibition, mandamus) – leave to apply; Contempt – breach of interim status quo order by receiver/manager; Civil procedure – representative suits (Order 1 Rule 8); Time bar – applicability of Cap 360 limitation to administrative sale decisions; Interim injunction – prima facie case, irreparable harm and balance of convenience.
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5 August 2004 |
| July 2004 |
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Procedural lapses in interdiction entitled the applicant to arrears and leave pay, but not to unproven general damages.
Employment law – Civil Service retrenchment and interdiction – procedural requirements of Standing Orders; entitlement to interdiction pay, leave pay, interest and costs; rejection of unproven general and allowance claims.
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8 July 2004 |
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Applicant failed to prove seller’s insanity or interest; trial court’s finding that the house forms part of the estate was upheld.
Property law – succession and estate assets – whether disputed house forms part of deceased’s estate; Sale and capacity – allegation of seller’s insanity and effect on validity of sale; Documentary evidence – forged medical report and its effect on proof; Standard of proof – balance of probabilities and appellate deference to trial court credibility findings.
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6 July 2004 |
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High Court refused leave for out-of-jurisdiction land suit but granted a three-month interim restraint against demolition.
Civil procedure – leave to file suit – jurisdictional limits of High Court under Courts (Land Disputes Settlements) Act – preliminary objections on merits inappropriate at leave stage – interim relief under section 68(e) CPC and inherent powers to preserve status quo – restraint against demolition pending institution of action in District Land and Housing Tribunal.
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5 July 2004 |
| June 2004 |
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Applicant lacked locus standi under s.78(1) Cap 334 and the matter was improperly instituted while related proceedings were pending.
Land law; locus standi under s.78(1) Land Registration Ordinance (Cap 334); res judicata / res sub judice; proper forum/registry; preliminary objections; dependence on pending Civil Case No.152/2003 and Civil Appeal No.2/2004; dismissal with costs.
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28 June 2004 |
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Court struck out an O.1 r.8 representative application for failing to show common interest on its face.
* Civil Procedure – Order 1 Rule 8 CPC – Representative actions – requirement to show common interest on the face of the application – sufficiency of annexures and mandate of deponents.* Land law – challenge to demolition notices – use of O.1 r.8 to represent numerous persons.* Procedural compliance – failure to establish common interest may justify striking out representative application.
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21 June 2004 |
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Representative-suit permission denied for failure to show common interest and comply with Order 1 Rule 8 CPC.
Representative actions — Order 1 Rule 8 CPC — requirement to show common interest and mandate of persons to be represented — insufficiency of a list of names and a single annexed notice — relevance of notice of institution at preliminary stage.
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21 June 2004 |
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Association failed to prove its Executive Director's authority; application to sue dismissed for lack of locus and procedural defects.
Civil procedure – locus of association to sue – authority of Executive Director – proof of appointment and tenure under association constitution; Registrar of Societies records – importance of official search; procedural requirements – advocates to sign pleadings (s.44 Advocates Ordinance) – late filings and extensions.
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15 June 2004 |
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Court restored applicants' access to premises pending suit, finding respondents breached status quo and court process.
Civil procedure — Interim relief/status quo — Oral application under section 68(e) & Order XLIII Rule 2 — Eviction and access to premises — Respect for court process — Receiver and sale of property.
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4 June 2004 |
| May 2004 |
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20 May 2004 |
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Where no appeal was pending at the land‑reform Act’s commencement, the High Court lacked jurisdiction to extend time or stay execution.
Jurisdiction – Courts (Land Disputes Settlements) Act No.2 of 2002 – disestablishment of housing tribunals; saving provisions (s.54) preserve only proceedings pending at commencement; extension of time to file appeal requires existence of a valid appeal right; stay of execution – execution justified only if instituted before Act’s commencement.
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14 May 2004 |