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Citation
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Judgment date
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| December 2005 |
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Court upheld Taxing Master’s instruction-fee award; interference only for wrong principle or manifest excess.
Taxation — instruction fees; discretion of Taxing Master; interference only for wrong principle or manifestly excessive award; Advocates Remuneration and Taxation of Costs Rules (Schedule IX) as guiding scales; instruction fee accrues once defence filed; relevance of claim value in taxation.
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22 December 2005 |
| November 2005 |
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Appellant proved unlawful arrest; appellate court increased damages after trial court applied an inappropriate 'appeasement' principle.
Tort — Unlawful arrest by a private person; assessment of general damages; appellate interference where trial court applied wrong principle; public humiliation as aggravating factor in damages.
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1 November 2005 |
| October 2005 |
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Extension granted to the applicant due to the court’s failure to notify; ss.26 and 40A require appellate interpretation.
• Extension of time – sufficient cause – court’s failure to notify parties of date of ruling – delay excused.
• Labour law – Security of Employment Act, 1964 – interpretation of ss.26 and 40A regarding reinstatement versus statutory compensation.
• Procedural irregularity – omission to give notice – justifies extension where no negligence by applicant.
• Citation error (Employment Ordinance v Security of Employment Act) treated as oversight, not fatal to application.
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25 October 2005 |
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Court recorded parties' consent deed as its decree, settling the appeal with agreed payment, confidentiality, and costs terms.
Civil procedure – Settlement of pending appeal – Parties may record a deed of settlement and have it adopted as court order/decree; consent orders enforce payment terms, confidentiality, costs allocation, and without-admission clauses.
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18 October 2005 |
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A memorandum of appeal lacking the appealed order (decree) is incompetent; a ruling does not substitute for the required order.
Civil procedure – Order XXXIX r.1(1) – memorandum of appeal must be accompanied by copy of decree/order and judgment – mandatory requirement; Distinction between 'order' and 'ruling' – a ruling does not substitute for the order required; Non‑compliance renders appeal incompetent and subject to dismissal.
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12 October 2005 |
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The applicant's suit was dismissed for failure to give statutory 90‑day notice, being time‑barred and res judicata.
Government Proceedings Act s6 – mandatory 90‑day notice for suits against the State; Limitation Act – contractual claims time‑barred; Security of Employment Act s28 – Minister’s decision final and conclusive; res judicata and lack of jurisdiction; declaratory relief cannot circumvent statutory notice or limitation requirements.
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1 October 2005 |
| September 2005 |
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Court revoked administratrix (no fraud found) and appointed Administrator General due to family discord.
Probate and administration – late filing of inventory – redemption of mortgaged estate property – alleged fraud/misrepresentation in inventory and undervaluation – estimates of property value – revocation of administratrix due to family discord – appointment of Administrator General under s.49(2).
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19 September 2005 |
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Convictions for firearm possession and conspiracy quashed for insufficient evidence and reliance on an untendered caution statement.
* Criminal law – unlawful possession of firearm – burden of proof – necessity of independent evidence linking weapon to accused.
* Criminal procedure – admissibility of caution statement – must be tendered and tested for voluntariness before reliance.
* Evidentiary doctrine – res ipsa loquitur is inapplicable in criminal prosecutions.
* Conviction on insufficient evidence – appellate intervention to quash and set aside sentence.
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16 September 2005 |
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Whether an unincorporated sports association can own property and whether accomplice evidence sufficed to prove theft.
* Criminal law — Theft — Whether an unincorporated association can be an owner or person capable of owning property for purposes of the Penal Code. * Evidence — Accomplice evidence — Categories of accomplices and required corroboration. * Criminal law — Uttering a false document — proof of passing/uttering and intent to defraud. * Criminal law — Obtaining money by false pretences vs theft — distinguishing fraudulent retirements of imprest. * Appeal — Appellate review of magistrate’s judgment — misdirection, extraneous matters and bias.
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1 September 2005 |
| August 2005 |
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A defective trial judgment—procedural and substantive irregularities—was set aside and the matter ordered reheard de novo.
* Employment law – proceedings as representative suit – requirement for leave under Order 1 Rule 8 before representative proceedings. * Procedural irregularities – mismatch between framed issues, evidence and decision; failure to quantify awards. * Judgment formalities – necessity of points of determination, decision and reasons; defective judgment set aside. * Remedy – order for rehearing de novo by another magistrate.
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25 August 2005 |
| July 2005 |
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Advocate’s attendance in another court is not sufficient cause to set aside an ex parte decree.
* Civil procedure — Setting aside ex parte decree — Order 9 Rule 13(1) CPC — requirement to show summons not duly served or sufficient cause for non-appearance.
* Civil procedure — Adjournments — Order 17 Rule 1 CPC — an advocate's engagement in another court is not ground for adjournment.
* Evidence — Conflicting affidavits — courts should exercise caution and preferably allow cross-examination where affidavits are the sole, irreconcilable evidence.
* Procedure — Service and registry practice — parties expected to follow up filings and ensure service; failure to arrange substitute or notify court undermines claim of sufficient cause.
* Affidavit formalities — jurat should indicate whether deponent is known to Commissioner for Oaths (practice noted).
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15 July 2005 |
| April 2005 |
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Appellants' convictions upheld on admissible caution statements and corroboration; restitution reduced for lack of valuation evidence.
Criminal law – admissibility and weight of caution statements – section 31 Law of Evidence Act; corroboration of co-accused statements – section 33; trial within a trial only where assessors sit; sufficiency of evidence to convict; sentences within statutory limits; restitution reduced for lack of valuation evidence.
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29 April 2005 |
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Matrimonial home found to have been built during marriage; respondent entitled to one-third of its value, appellate increase to one-half unjustified.
* Family law – matrimonial property – determination of share in house built during marriage – contributions both financial and non-financial considered.
* Evidence – appellate variation of award – need to give reasons when altering lower court’s assessment.
* Law of Marriage Act, 1971 – section 114 – shares to reflect parties’ respective contributions.
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25 April 2005 |
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Ex parte judgment entered without proof of service was illegal and was quashed, matter remitted for inter partes trial.
Civil procedure — Ex parte judgment — Requirement of proof of service of summons under Order IX r.6(1)(a)(ii)(B) for subordinate courts — Misapplication of High Court provision — Procedural irregularities — Quashing and remittal for inter partes trial.
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14 April 2005 |
| March 2005 |
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An appellate court erred by reversing a trespass finding for not calling an unnecessary witness instead of remitting or calling evidence.
* Civil procedure – appellate review of magistrates' findings; sufficiency of evidence and locus visit to prove trespass; duty of appellate court to summon or remit for additional evidence under s.21(1)(a) Magistrates' Courts Act; failure to call a transferor is not necessarily fatal.
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4 March 2005 |
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Respondent’s notice to argue a point of law was incompetent; proper remedy was cross-appeal or revision, so notice struck out with costs.
Civil procedure – Notice of intention to argue point of law under Order XXXIX r.33 – Competency of procedure; appellate remedy – necessity of filing cross-appeal or revision to challenge a lower court decision – preliminary objection previously overruled.
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4 March 2005 |
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High Court retained jurisdiction to hear a probate revocation after the notice of appeal was withdrawn (no appeal pending).
Probate and administration – revocation of letters of administration – jurisdictional effect of a notice of appeal; Court of Appeal Rules r.84 – deemed withdrawal for failure to institute appeal; preliminary objection on jurisdiction; res judicata point abandoned by respondent.
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4 March 2005 |
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Plaint discloses a cause of action; preliminary objection dismissed and 2nd defendant not struck out; costs each party to bear.
Civil procedure – plaint vs suit – rejection of plaint for failure to disclose cause of action (O. VII r.11(a) CPC); distinction between cause of action and legal right to sue; joinder of defendants and leave to join; waiver of preliminary objections; premature striking out of defendant.
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4 March 2005 |
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The respondent lawfully exercised discretion to reinstate and reprimand for a first disciplinary breach.
Labour law – Disciplinary Code – distinction between simple and aggravated negligence (para (e) v para (h)) – penalties for first breach – administrative law – ministerial discretion under Security of Employment Act (s.26(2), s.24(b)) to impose lesser disciplinary penalty – reinstatement and reprimand lawful.
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2 March 2005 |
| February 2005 |
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Provability of claims in bankruptcy and receiver’s liability are triable issues; second defendant’s preliminary objection dismissed.
* Bankruptcy — provable debts — section 35(3) Bankruptcy Ordinance (Cap.25) — whether claims arising after receivership are provable in bankruptcy; * Civil procedure — preliminary objections — triable issues vs. grounds proper for preliminary determination (e.g. no cause of action, limitation, jurisdiction, locus standi); * Procedural default — failure to file ordered submissions may amount to abandonment of objection; * Joinder for indemnity — liability of receiver contingent and requires full hearing.
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28 February 2005 |
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Application for leave to seek certiorari and mandamus was timely under the six‑month statutory limit; preliminary res judicata objection premature.
* Administrative law – leave to apply for certiorari and mandamus – time bar under s.18(3) Law Reform (Fatal Accidents Misc. Provisions) Act (six-month limitation) – calculation of limitation period using decision date and filing date.
* Civil procedure – preliminary objection – res judicata defence – premature to decide at leave/preliminary objection stage.
* Costs – each party to bear own costs.
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25 February 2005 |
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A court that has finally dismissed an application as hopelessly out of time becomes functus officio and cannot thereafter reopen the same matter.
* Civil procedure – finality of proceedings – functus officio – court loses jurisdiction to entertain the same matter after a final dismissal as hopelessly out of time.
* Civil procedure – application to set aside dismissal for want of prosecution – limits where earlier final dismissal exists.
* Probate – recognition of Primary Court probate decision upheld where appellate court lacked jurisdiction to reopen matter.
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23 February 2005 |
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Trial court judgment lacking findings and reasons and entered without proper summons was quashed; retrial ordered.
Civil Procedure — O.XX r.4 & r.5 Civil Procedure Code, 1966 — Judgment must state points for determination, findings on framed issues and reasons — Failure renders judgment a nullity; absence of parties does not excuse non-compliance. Civil procedure — Ex parte/judgment in absence — Validity requires proper service/summons; judgment without service and without statutory reasons may be quashed.
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17 February 2005 |
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Leave to appeal out of time granted due to lack of notice of judgment and reasonable cause for delay.
* Civil procedure – Leave to appeal out of time – Whether reasonable cause shown for delay – Lack of notice of judgment and undated judgment as reasonable cause – Court declines to assess merits/overwhelming chances at leave stage – Garnishee/Execution issues reserved for appeal.
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17 February 2005 |
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Blocking a tenant's toilet justified reporting; no malice or proof of defamation—damages set aside and appeal allowed.
Procedure – death of a defendant – trial court should discontinue proceedings against deceased and proceed against surviving defendant only; Tort – malicious prosecution – requirement of lack of reasonable and probable cause and malice; Tort – defamation – claimant must prove defamatory act, reputation evidence relevant only to quantum; Tenancy disputes – deprivation of services (blocked toilet) can justify reporting to police.
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17 February 2005 |
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An appeal from an order dismissing an application for non-appearance is incompetent; the remedy is to apply to set aside the dismissal.
Civil procedure — dismissal for non-appearance at mention — remedy is application to set aside dismissal, not appeal; section 74(1) CPC bars appeal from such orders; late filings without leave not considered.
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16 February 2005 |
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Revision cannot substitute for objection proceedings; administrator’s misconduct should be pursued in Primary Court, resignation negates annulment.
Probate and administration — Revisional jurisdiction — Limits of revision where alleged misconduct should be raised by objection in Primary Court; Administrator’s duty to file inventory; Resignation ends duties; Court cannot revise orders that are subject to appeal.
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16 February 2005 |
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Court records and enforces parties' settlement: payment schedule, costs order, and acceleration on default.
Settlement recorded and made an order – agreed indebtedness and instalment schedule – costs awarded – acceleration clause on default.
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14 February 2005 |
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Applicant's leave to seek certiorari and mandamus was time-barred and prerogative orders inappropriate for police dismissal.
Administrative law — Judicial review — Time limit for leave to apply for prerogative orders under s.18(3) Law Reform (Fatal Accidents & Miscellaneous Provisions) Ordinance (Cap.360) — six months. Administrative law — Prerogative remedies — Certiorari and mandamus inappropriate to challenge contractual dismissals of police/military personnel; remedy lies in damages and declaratory relief.
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3 February 2005 |
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Applicant's tort claim against the second respondent time-barred; joinder and cause of action against the third respondent upheld.
Limitation law – accrual of cause of action in tort – Law of Limitation Act 1971 s.6(e) and Part I item 6 (three-year period); Civil procedure – effect of pending criminal proceedings on civil limitation – joinder of official receiver/indemnity claims – leave to join third party.
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3 February 2005 |