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Citation
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Judgment date
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| December 2005 |
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Where an appeal is available, a revision application is inappropriate; the applicant must appeal.
Civil procedure – Revision versus appeal – Revision lies only for material error on face of record; where an appeal is available, revision does not lie; jurisdictional rulings by lower courts are challengeable by appeal.
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30 December 2005 |
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Appeal allowed: conviction quashed because complainant and witness evidence was found fabricated and unsafe.
Criminal law – Evidence – Credibility of complainant and witness – Improbabilities and inconsistencies undermining prosecution case; Sexual offences – Non-retrospectivity of Sexual Offences Special Provisions Act No.4 of 1998; Unsafe conviction – quashing where principal evidence fabricated or unreliable.
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30 December 2005 |
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Appeal dismissed: child’s clear identification and corroborative medical and eyewitness evidence upheld conviction.
* Criminal law – Rape – Evidence of child of tender years – corroboration by police report, eyewitness account and medical evidence.
* Identification – No parade required where victim knew accused and offence occurred in daylight.
* Procedure – Voire dire not mandatory where child witness gives clear identification.
* Defence – Accusations of coaching/grudge require evidence; failure to show such evidence is fatal.
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30 December 2005 |
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A magistrate erred by dismissing a suit without hearing; a prior court-ordered sale did not bar the claim of a non-party.
Civil procedure — preliminary objection — dismissal without hearing — pre-judgment/abdication of judicial duty — res judicata — prior court-ordered auction does not bind non-parties — remittal for rehearing.
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30 December 2005 |
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Appeal allowed: conviction quashed due to fabricated, unreliable witness evidence and non‑retroactive application of 1998 Act.
* Criminal law – Rape – Credibility of complainant and accompanying witnesses – Improbabilities and inconsistencies may render prosecution case unsafe. * Criminal law – Fabrication of evidence – Group-collusion to manufacture charges. * Statutory interpretation – Sexual Offences Special Provisions Act No.4 of 1998 – No retrospective application to conduct occurring before enactment.
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30 December 2005 |
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An equivocal guilty plea that fails to record essential elements of the offence renders the conviction null and void.
Criminal law – plea of guilty – equivocal plea – requirement that recorded facts disclose essential ingredients of the offence (rape) – conviction based on inadequate facts null and void – sentence set aside – release order.
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30 December 2005 |
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Appeal partly allowed: carrier held partly negligent; general damages reduced and unproven prepaid freight rejected; each party to bear own costs.
Contract and carriage of goods by air – delay and death of live animals – carrier's duty to take reasonable measures to avoid loss – Order XIV CPC issues framing – parties cannot introduce new issues by written submissions – assessment of general and special damages – requirement of proof for special damages; rejection of unproven prepaid freight claim.
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29 December 2005 |
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Carrier found partly negligent for failing to mitigate loss after rerouting; damages adjusted and prepaid freight claim rejected.
• Contract and carriage of goods – live animals – carrier’s duty to mitigate loss after rerouting and delay due to weather.• Civil procedure – framing of issues – court’s discretion to frame/amend issues; parties cannot introduce new issues by way of submissions.• Damages – need for evidentiary proof for special damages; assessment and reduction of unsupported general damages.• Proof of payment – claimant must prove prepaid freight to recover it.
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29 December 2005 |
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Applicant's complaints about locus visit, prior case and denial of defence rejected; appeal dismissed.
Criminal procedure – locus in quo visits – timing of site inspection does not automatically vitiate proceedings; Distinct offences – separate prosecutions for separate intrusions; Right to defend – opportunity to testify and call witnesses shown on record; Witness relevance – lack of shared boundary does not per se disqualify testimony.
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28 December 2005 |
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Long permissive occupation induced by a relative does not amount to adverse possession; the respondent was a licensee.
* Land law – Adverse possession v. licensee – whether permissive occupation, maintained by a third party's interventions, constitutes adverse possession.
* Possession – effect of owner’s repeated demands and third‑party interference on acquisition of title by long possession.
* Compensation – entitlement for improvements by a permissive occupant.
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27 December 2005 |
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A sale in defiance of a valid prohibitory order is void; the appellant who bought at auction is a bona fide purchaser.
* Property law – Prohibitory orders/attachment – Effect of sale made in defiance of a prohibitory order – Sale void and no title passes. * Auction sales and execution — Court-ordered sale purchaser as bona fide purchaser entitled to possession. * Remedies — aggrieved private purchaser to recover price from vendor’s estate.
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26 December 2005 |
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Court dismissed ex parte application to restrain announcement of presidential results for lack of credible evidence and irreparable harm.
Electoral law — interlocutory relief — ex parte injunction to restrain announcement of election results — sufficiency of evidence — photocopies vs originals — irreparable harm requirement — discretionary refusal to grant interim order.
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20 December 2005 |
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19 December 2005 |
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The applicants' subsistence-allowance claim failed for lack of nexus to the respondent and due to trade-dispute jurisdiction.
* Trade dispute – definition and jurisdiction under the Industrial Court Act – disputes connected with employment fall within Industrial Court jurisdiction. * Cause of action – requirement to show legal nexus between claim and defendant; lack of nexus defeats claim. * Execution/attachment – prior appellate finding (Civil Appeal No.293/01) relevant to liabilities and asset attachment. * Subsistence allowance – characterized as arising from delayed terminal benefits; pleaded claim must link defendant to employer's liabilities.
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19 December 2005 |
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Application to file Notice of Appeal and appeal out of time dismissed: alleged prison inaction insufficient given strength and seriousness of conviction.
Criminal procedure – extension of time – leave to file Notice of Appeal and appeal out of time; notice required by s.361(a) CPA; sufficiency of reasons test (Republic v Yona Kaponda) – delay considered together with nature of decision, surrounding circumstances and weight of issues; prison officers’ alleged inaction; seriousness of offence and statutory minimum sentence; uncontradicted victim evidence.
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16 December 2005 |
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An appeal filed beyond the 30-day statutory limit without leave is incompetent and is struck out with costs.
Appeal and procedure; statutory time limit for appeals (section 25(1)(b), Magistrates' Courts Act) — late filing without leave renders appeal incompetent; land law — possession and occupation as title, encroachment; appellate review of factual findings.
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16 December 2005 |
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15 December 2005 |
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Municipal order to relocate an allegedly obstructive billboard was reasonable and did not breach natural justice.
Administrative law – Judicial review – Certiorari, prohibition and declaratory relief – Municipal authority to order removal/relocation of advertising signage – Reasonableness, safety and nuisance considerations – Alleged breach of natural justice.
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15 December 2005 |
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Parties may raise preliminary objections after a pre‑trial scheduling order if new events, like a later appeal, make the suit subjudice.
Civil procedure – Preliminary objections – Whether a party may raise a preliminary objection after a First Pre‑Trial scheduling order when new circumstances arise; Sub judice – objection based on a subsequent appeal; Court’s power to depart from scheduling orders in the interests of justice.
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15 December 2005 |
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Joinder of an official receiver is permissible under Order 1 r.3 and r.5; preliminary objection dismissed with costs.
Civil Procedure – Joinder of parties – Order 1 r.3 permits joining persons against whom a right to relief arises from the same act/transaction – Official receiver may be joined where plaintiff may obtain relief from receiver – Order 1 r.5: defendants need not be interested in all reliefs claimed.
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15 December 2005 |
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Dismissing the applicant’s appeal without hearing breached audi alteram partem and was quashed.
Natural justice – audi alteram partem; Right to fair hearing on appeal; Voidness of decision where party not heard; Remittal for rehearing by different magistrate.
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15 December 2005 |
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Conviction entered in accused's absence without statutory safeguards quashed; appeal allowed and sentence set aside.
Criminal procedure — conviction in absence — non‑compliance with s.214(2)(a) and s.226(2) of the Criminal Procedure Act — accused’s right to demand re‑summoning and re‑hearing of witness — setting aside convictions and sentences — retrial vs release.
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13 December 2005 |
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Subrogation and assignment objections premature; plaint discloses cause of action; winding-up rules inapplicable.
Preliminary objections — Subrogation and assignment — Pre-emptive objections to be determined after hearing evidence; Bankruptcy/Companies (Winding-up) Rules — Applicability limited to debts provable in bankruptcy and adjudicated bankrupts; Cause of action — Pleadings disclosing collision, damage and insurance policy; Joinder — official receivership justifies joinder for relief.
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8 December 2005 |
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A party cannot file a bill of costs for taxation where the judgment contains no order as to costs; appeal is the proper remedy.
Costs – Bill of costs – Taxation of costs requires a prior order awarding costs; cannot tax costs where judgment contains no costs order; proper remedy is appeal against judgment omitting costs.
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8 December 2005 |
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A mediator cannot enter judgment for non-appearance; improper ex-parte judgment was quashed and matter remitted for mediation/trial.
Civil procedure – Mediation – Whether a mediator may enter judgment for non-appearance; mediator’s role is facilitative not adjudicative; adjournment proper where party absent; setting aside ex-parte judgment where defendant misled by court official.
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8 December 2005 |
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Long-term cohabitation may be presumed a marriage under s.160(1), entitling division of matrimonial assets.
Family law – Presumption of marriage from long-term cohabitation – s.160(1) Law of Marriage Act, 1971; division of matrimonial assets; distinction between concubinage and de facto marriage; appellate review of Primary Court orders.
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6 December 2005 |
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A counterclaim alleging theft should be pursued by criminal prosecution, not adjudicated as a civil claim.
* Civil v Criminal procedure – counterclaim alleging theft – appropriateness of civil determination of criminal allegations; * Private prosecution – remedy where criminal allegations reported to police and accused absconds; * Propriety of converting criminal allegations into civil recovery claims.
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6 December 2005 |
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Lumping an extension of time and a leave-to-appeal application in one summons, supported by one affidavit, is impermissible.
Civil procedure — chamber summons — improper to lump distinct applications (extension of time and leave to appeal) in one chamber summons — every application must be supported by affidavit per Order XLIII r.2 Civil Procedure Code — procedural sequence: extension first, then application for leave to appeal.
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6 December 2005 |
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6 December 2005 |
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Court granted leave under Rule 17 to amend plaint and increase claimed compensation, ordering amended plaint filed within two months.
Civil procedure – Amendment of pleadings – Rule 17 Civil Procedure Code, 1966 – Leave to amend claim amount – Court’s discretion to allow amendments to determine real questions in controversy.
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6 December 2005 |
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District court decision quashed for misconstruing appellant's application; matter remitted for rehearing, each party to bear own costs.
Civil procedure – misconstruction of pending application – decision based on non-existent ground – quashing of judgment – remit for rehearing by competent magistrate – costs each party.
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6 December 2005 |
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Court allowed leave to appeal out of time in a summary-procedure land-trespass suit, finding a reasonable chance of success.
Civil procedure — Leave to appeal out of time — Application allowed where serious land-trespass dispute and plausible explanation for delay; Order XXV (summary procedure) — failure to file written statement of defence — need for leave to defend — amicable settlement as reason for delay.
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6 December 2005 |
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Preliminary jurisdictional objection to High Court enforcement of a Conciliation Board decree rejected; merits to be heard.
Execution of Conciliation Board decisions – jurisdictional competence of High Court versus lower courts – preliminary objection raising substantive issues to be determined with merits – effect of appellate order on execution proceedings.
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5 December 2005 |
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A belated, procedurally defective intestacy claim on an already-administered estate was dismissed with costs.
* Succession law – intestacy proceedings – later application dismissed where earlier valid letters of administration exist; * Civil procedure – procedural defects in intestacy applications (undated form; failure to state relationship; lack of estate particulars) justify dismissal; * Property – eviction upheld against person who forcefully entered estate property; * Res judicata/identity of subject matter – subsequent claims on same administrated estate are incompetent.
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2 December 2005 |
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NGO public-interest challenge succeeds: election "takrima" exemptions discriminatory, disproportionate and struck down as unconstitutional.
Constitutional law – Elections law – "Takrima" exemptions for "normal or traditional hospitality" – discrimination and inequality before the law (Art.13) – right to free and fair elections (Art.21) – public-interest standing of NGOs – proportionality and necessity of limiting fundamental rights.
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1 December 2005 |
| November 2005 |
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Cohabitation over two years presumes marriage; desertion justifies dissolution and limited, non‑equal property award.
Law of Marriage Act s.160(1) – Cohabitation for two years or more creates rebuttable presumption of marriage; Matrimonial causes – desertion and irretrievable breakdown; Matrimonial property – evidentiary burden of contributions and discretionary division of assets.
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30 November 2005 |
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A court cannot decide custody or divide matrimonial assets before a marriage is dissolved or without party agreement.
* Family law – matrimonial proceedings – court cannot adjudicate custody or divide matrimonial assets before marriage is dissolved or without parties' agreement.
* Mediation/procedure – improper record of settlement/consent – misapplication of precedent (Butiku v Butiku).
* Relief – nullification and quashing of orders where error goes to root of proceedings.
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30 November 2005 |
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A foreign plaintiff without sufficient immovable property may be ordered to deposit security for costs; court fixed TShs.100,000,000.
Civil procedure – Security for costs – Order XXV(1)(1) Civil Procedure Code 1966 – Foreign plaintiff – Absence of sufficient immovable property – Shareholdings not immovable property – Quantum guided by 3% benchmark and court’s discretion.
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29 November 2005 |
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Court allowed reuse of filing fees from a struck-out suit, exercising discretion to protect access to justice.
* Commercial Court (Fees) Rules – no express provision for reuse of filing fees; * Judicial discretion – departure from procedural rules where important point of law and access to justice are engaged; * Access to court – inability to pay fresh filing fees may justify equitable relief; * Reliance on appellate authority permitting discretionary departures from rules.
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25 November 2005 |
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An unregistered voluntary agreement under section 39(4) is inoperative and is not an ordinary enforceable contract.
* Industrial Court Act s39(4) – registration of voluntary agreements – unregistered voluntary agreement inoperative and not binding.
* Collective/voluntary agreements – nature and classification – not ordinary contracts enforceable at common law.
* Judicial review – certiorari and mandamus available where a tribunal acts unlawfully by treating an inoperative instrument as binding.
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18 November 2005 |
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An appeal without the mandatory annexed copy of the decree is incompetent and is struck out.
Civil procedure – Memorandum of Appeal – Requirement to annex copy of decree – Order XXXIX r.1 CPC – Mandatory, non‑discretionary requirement – Competency of appeal – Striking out – Distinction between annexing a decree and a judgment.
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18 November 2005 |
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Extension of time for revision refused where applicant had admitted liability in pleadings and oral court proceedings.
Limitation of actions – extension of time for revision – allegation of non-admission vs recorded admission in pleadings and oral proceedings – lack of good cause to extend time – court will not revise uncontested admissions; execution to proceed.
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17 November 2005 |
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Application for extension to file revision dismissed: party had voluntarily admitted liability, no sufficient cause for delay.
• Limitation of actions – extension of time under section 14(1) – requirement to show sufficient cause.
• Civil procedure – revision – inadmissibility of revising or reopening voluntary admissions recorded in pleadings or oral court proceedings.
• Execution – party who admitted liability cannot later challenge decree based on that admission.
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17 November 2005 |
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Applicant’s written and oral admissions precluded reopening or appeal; application to set aside judgment was dismissed.
Civil procedure – admission in pleadings and oral admission in court – formalization of judgment on admission – inability to appeal or seek revision on matters admitted – delay and lack of sufficient cause to set aside judgment.
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17 November 2005 |
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High Court lacks original jurisdiction over trade disputes; suit struck out and no costs ordered.
Labour law – jurisdiction – trade dispute – Industrial Court Act s.3 and s.4 – Court of Appeal precedent – Labour Institutions Act 2004 – Labour Division of High Court – Order VII r.10(1) – preliminary objection – striking out for lack of jurisdiction.
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15 November 2005 |
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A residential house occupied by the judgment debtor cannot be attached and sold; such sale is nullified though fraud liability persists.
* Civil Procedure – Attachment and sale in execution – Section 48(1) Civil Procedure Code – residential house occupied by judgment debtor exempt from attachment and sale.
* Procedure – identity of parties/name discrepancies – court should investigate identity, but statutory prohibition against sale of occupied residential house prevails.
* Fraud – nullification of unlawful sale does not extinguish liability for prior fraudulent acts.
* Relief – order setting aside attachment and sale; remittance for fresh execution; costs awarded against appellant.
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15 November 2005 |
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Trial court wrongly dismissed claim despite defendant’s admission of vehicle ownership; High Court quashed judgment and ordered retrial.
Civil procedure – Pleadings and admissions – Order VII r.5 CPC: failure to deny a pleaded fact is admission; defendant's admission of vehicle ownership dispenses with further proof. Revision – High Court’s powers under s.44(1)(b) Magistrates' Court Act: quashing proceedings for material error causing injustice and ordering retrial. Motor-vehicle claims – ownership, vicarious liability and damages must be determined on merits.
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15 November 2005 |
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Accused found to have been insane at the time of killing; not guilty by reason of insanity and committed to a mental hospital.
Criminal law – Insanity plea – Section 13 Penal Code – criteria: incapacity to understand, appreciate or control acts; psychiatric evidence; burden on accused (balance of probabilities); special finding and disposition under section 219 Criminal Procedure Act.
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11 November 2005 |
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Accused found to have been insane (paranoid schizophrenia) at the killing and ordered detained in a mental hospital.
* Criminal law – Insanity defence – Application of section 13 Penal Code – incapacity to understand, appreciate or control actions.
* Procedure – Psychiatric examination under section 220(1) Criminal Procedure Act – admissibility and weight of expert report (Exh P2).
* Criminal procedure – Special finding of not guilty by reason of insanity under section 219(2) and detention order under section 219(3)(a).
* Onus of proof – accused must prove insanity on balance of probabilities.
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11 November 2005 |
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Lawful suspension on half pay entitles employees to half salary only; no leave or transport allowances during suspension.
* Employment law — suspension on half pay pending criminal proceedings — entitlement to half pay under s.30(3) Security of Employment Act.
* Suspensions — acquittal does not automatically entitle employee to withheld full pay absent unlawful termination.
* Leave and allowances — annual leave, leave allowance and transport allowance contingent on rendering service; not payable during lawful suspension.
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11 November 2005 |