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Citation
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Judgment date
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| December 1998 |
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Plea upheld despite discrepancy in gun count; sentence reduced for mitigation, licence-fees ordered and immediate release granted.
Criminal law – unlawful possession of firearm – plea of guilty – discrepancy between charge and facts – whether plea equivocal; Sentencing – mitigation where firearm defective, inherited and licence expired – reduction of sentence and imposition of fine and licence-fee arrears.
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26 December 1998 |
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Application to file notice of appeal out of time dismissed for late filing, non‑service and inordinate delay.
Appeal procedure – notice of appeal – timeliness and service – leave to file notice of appeal out of time – requirement to show good cause and promptness – inordinate delay and abuse of process – costs on dismissal.
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13 December 1998 |
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Tribunal’s stop order caused crop loss but claimant failed to strictly prove special damages, so only nominal damages awarded.
Land dispute – Tribunal’s interim stop order – Effect on crops – Special damages must be strictly proved – Burden of proof for quantum – Appellate review of findings of fact and damages.
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11 December 1998 |
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Appellant failed to prove abusive language; trial court properly acquitted respondents under section 31(1).
Criminal law – offence of using abusive language (Penal Code s.89(1)(a)) – no case to answer – Primary Courts Criminal Procedure Code s.31(1) – credibility of witnesses and appellate interference with trial court findings.
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11 December 1998 |
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Amendment refused without hearing violated right to be heard; evidence established partnership and malicious prosecution, judgment for appellant.
Civil procedure — amendment of pleadings — right to be heard — dismissal of application without hearing unlawful; Partnership law — existence of partnership shown by agreement, profit sharing and conduct; Malicious prosecution — lack of reasonable and probable cause and presence of spite/malice justified damages; Evidence — business registration and witnesses substantiated joint venture and joint use/ownership of assets.
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10 December 1998 |
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Continuous occupation and abandonment, not an unproven reconciliation-board award, determined ownership of the disputed land.
Land law – continuous and long occupation as basis for ownership; Abandonment of land and failure to enforce awards; Reconciliation board determinations not res judicata absent proof; Burden to prove title/inheritance.
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10 December 1998 |
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Appellate court quashed award on unfiled counterclaim and held borrower liable for Shs.5,946,625.85 with specified interest rates.
Civil procedure – counterclaim – defence pleading alleging over-deduction not a counterclaim; unfiled counterclaim attracts no judgment. Contract/loan – cash loan distinct from earlier crop sale receipts; pre-dating receipt does not discharge later loan. Agency/primary society – remittance by primary society is separate obligation; shortfall does not extinguish borrower’s debt to lender. Interest – where commercial rate not proved court may estimate; applied 10% p.a. (1/1/96–17/6/97) then 7% p.a. thereafter.
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8 December 1998 |
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Where ownership of property is contested, civil proceedings for declaration of title, not criminal prosecution, are the proper remedy.
* Criminal law – Stealing by agent (s.273 Penal Code) – Appropriateness of criminal prosecution where title to property is disputed.
* Civil procedure – Disputed ownership – Remedy is civil action for declaration of title and damages, not criminal prosecution.
* Costs – In such criminal matters where prosecution is inappropriate, no order for costs; parties to bear their own costs.
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8 December 1998 |
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Criminal appeal dismissed; applicant must pursue a civil suit to determine ownership against the respondent.
Criminal law – Stealing by agent (s.273 Penal Code); Property dispute – title vs. criminal prosecution; Civil remedy required to determine ownership before criminal charges; Attendance and service on appeal.
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8 December 1998 |
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4 December 1998 |
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Application for leave to appeal dismissed as time-barred; statutory custody and maintenance award upheld; one-head-of-cattle payment ordered.
* Civil procedure – leave to appeal – application time-barred and lacking credible explanation for delay. * Family law – custody and maintenance – application of Marriage Act s.125(3) regarding custody of children under five. * Restitution/dowry – recipient of dowry refund liable to meet maintenance obligations; compensatory award properly assessed.
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1 December 1998 |
| November 1998 |
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Conviction quashed because the charge cited the wrong statutory provision, failing to disclose the offence.
Criminal procedure — statement of offence — mis-citation of statutory provision — particulars must disclose the offence — mis-citation fatal to conviction; forfeited property ordered returned.
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28 November 1998 |
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27 November 1998 |
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An appellate court should not reverse trial credibility findings merely because the respondent produced more witnesses.
Appeal — reversal of trial court findings — credibility and demeanour — number of witnesses not determinative — material inconsistencies may undermine title claim.
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27 November 1998 |
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Appellate court restored the trial court's ownership finding, rejecting reversal based on witness numbers and inconsistent evidence.
Land dispute — ownership of shamba — credibility and demeanour — appellate deference to trial court — numerical superiority of witnesses not decisive — contradictions in evidence undermine title claim.
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27 November 1998 |
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Appellant’s convictions quashed for lack of admissible evidence and excessive sentencing.
Criminal law – Evidence – Conviction requires admissible evidence proving guilt beyond reasonable doubt; hearsay inadmissible to prove truth of statements by absent declarants; unproved written confession that is retracted requires corroboration; loss/destruction of records undermines prosecution case. Sentencing – trial court exceeded statutory maximum custodial sentence where offences not subject to Minimum Sentences Act.
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27 November 1998 |
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Convictions quashed for insufficient admissible evidence and for imposition of unlawful excessive sentence.
Criminal law — stealing by servant — sufficiency of evidence; hearsay inadmissibility; unidentified/unproved confession; requirement for corroboration of retracted confession; destruction of accounting records by prosecution undermining proof; sentencing limits under s.170(1)(a) Criminal Procedure Act.
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27 November 1998 |
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High Court holds that a son without title could not validly sell his mother’s house; sale null, ownership restored to appellant.
* Property law – ownership dispute – validity of sale by a person without title – sale held null and void. * Evidence – assessment of witness credibility and contemporaneous independent evidence. * Remedies – restitution of purchase money and conditional alternative purchase priority where sale is void. * Appellate review – first appellate court’s inference and reversal found erroneous; trial court finding affirmed.
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27 November 1998 |
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27 November 1998 |
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Whether a son could validly sell the appellant’s house and the legal effect of that sale on ownership.
* Property law – ownership dispute – whether mother or deceased son owned house – validity of sale by person lacking title. * Evidence – assessment of witness credibility where witnesses have inconsistent accounts and possible interest. * Civil procedure – appellate review of factual inferences (abandonment from prolonged absence). * Remedies – declaration of nullity of sale, refund of purchase price, conditional right to purchase, costs.
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27 November 1998 |
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A guilty plea bars appeal against conviction; ten-year sentences for simple unlawful firearm possession reduced to three years.
Criminal law – Plea of guilty – Effect of plea on right to appeal against conviction (s.360(1) Criminal Procedure Act) – Charge-sheet irregularity – Curable under s.388 Criminal Procedure Act – Sentencing – Manifestly excessive maximum sentence reduced for first offenders in simple unlawful firearm possession.
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27 November 1998 |
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Unlawful licence refusal constituted misfeasance in public office, entitling the applicant to assessed lost‑earnings damages.
* Administrative law – Misfeasance in public office – unlawful refusal of licence attracts liability for pecuniary loss.
* Evidence – Proof of special damages – need for specific, first‑hand evidence; agent’s testimony cannot substitute for donor’s own evidence.
* Damages – Assessment of lost earnings – court may adjust pleaded period and deduct salary, maintenance and tax when not fully proved.
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25 November 1998 |
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A voluntary gift transferred title and long continuous possession plus registration barred the applicant’s land claim.
* Land law – disposition by gift – Gratuitous disposition transfers immediate and good title to the donee, preventing donor’s later reclamation.
* Adverse possession/limitation – Continuous possession by donee and successors for over 12 years bars recovery by the original owner.
* Land registration – Survey and issuance of right of occupancy support the purchaser’s title against prior informal claims.
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25 November 1998 |
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Contradictions and absence of a close witness, explained by cultural and protective reasons, did not undermine the indecent assault conviction.
Criminal law – indecent assault – contradictions between complainant and eyewitness – explanation for discrepancies – failure to call close relative witness – cultural sensitivities – absence of rape charge does not necessarily vitiate indecent assault conviction.
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24 November 1998 |
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20 November 1998 |
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Allowing a relative to represent a party while the party later testifies is an incurable procedural irregularity.
Magistrates' Courts Act s33(2) – Representation by relative – Representation intended as substitute for party's appearance – Abuse of s33(2) – Parties must be identifiable – Procedural irregularity amounting to failure of justice – Incurable irregularity under s37(2) – Trial de novo ordered.
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20 November 1998 |
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Termination without notice, even with terminal benefits, is summary dismissal and ousts magistrates’ court jurisdiction.
Security of Employment Act s.28 – jurisdiction – summary dismissal defined as dismissal without notice; payment of terminal benefits does not negate summary dismissal – employment claims arising from summary dismissal are not cognisable in ordinary courts but fall to statutory conciliation procedures – revision under CPC s.79 where subordinate court exercises jurisdiction not vested by law.
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20 November 1998 |
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Concurrent findings that a valid sale transferred the disputed land to the respondent were upheld; appeal dismissed with costs.
Land law – ownership dispute over smallholding – proof of sale by oral and written testimony and witnesses – credibility of concurrent findings of fact – appeal on facts dismissed.
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20 November 1998 |
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Appellate court affirms respondent’s ownership based on written sale agreement and credible witness evidence; appeal dismissed with costs.
* Property law – Sale of land – Transfer of ownership – Effect of written sale agreement and witness testimony in proving transfer on balance of probabilities.
* Appeals – Concurrent findings of lower courts – Scope for interference – appellate court will not disturb findings supported by credible evidence.
* Evidence – Credibility and weight of witness testimony and documentary proof in ownership disputes.
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20 November 1998 |
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A prior threat alone cannot establish guilt beyond reasonable doubt in a cattle-theft prosecution.
Criminal law — circumstantial evidence — requirement that such evidence exclude all reasonable hypotheses of innocence — prior threat as evidence — uncorroborated threats insufficient to prove theft beyond reasonable doubt — suspicion cannot replace proof.
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20 November 1998 |
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A prior threat alone cannot support the applicant’s conviction; suspicion does not meet proof beyond reasonable doubt.
Criminal law – circumstantial evidence – prior threat – threat alone insufficient to ground conviction – suspicion is not proof beyond reasonable doubt.
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20 November 1998 |
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An applicant cannot claim dowry refund without a divorce; the appeal was dismissed as frivolous with costs.
Family law – dowry refund – refund claim requires prior divorce; Civil procedure – wrongful party sued – defendant may be entitled to dismissal where he is not the administrator; Appeals – frivolous appeal dismissed with costs.
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18 November 1998 |
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A dowry refund claim cannot succeed without a divorce; appeal dismissed as frivolous with costs.
Family law – Dowry (bridewealth) – Refund claims require prior divorce; procedural capacity to sue – defendant may resist if wrongly sued or sued in incorrect capacity; frivolous appeals – dismissal with costs.
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18 November 1998 |
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Failure to protest reallocation and acquiescence bars land claim; compensation for respondent’s improvements was properly awarded.
Land law – clan land – reallocation by village authority – acquiescence and delay in protesting – entitlement to possession; Compensation – improvements on reallocated land – proof of expenses for claimed amount; Civil procedure – second appeal – findings of fact upheld where adequately supported by evidence.
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13 November 1998 |
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Acquiescence to land reallocation barred appellants' claim; they must pay compensation for respondent's improvements.
Land law – clan land – reallocation by village authority – acquiescence and delay in protesting – compensation for improvements – evidential sufficiency of quantum of damages for buildings.
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13 November 1998 |
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Appeal allowed: allocation evidence and sketch plan displaced respondent’s unilateral tree-marking; suit not time-barred.
Land law – allocation of occupied land in owner’s absence – prescription – credibility of village allocation witnesses and sketch plan; boundary demarcation – unilateral tree-planting not constituting official boundary; reallocation of occupied land requires strong justification.
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13 November 1998 |
From the decision of the District Court of Mbeya at Mbeya in Civil Appeal No. 32 of 1995, S. Musa, District Magistrate) Customary Law - Limitation period - Limitation period for recovery of clan land - Item 6 ofthe Customary Law (Limitation of Proceedings) Rules p 1963, Government Notice Number 311 of 1963. Primary Court - Assessors - Substitution of assessor after trial has commenced — Effect thereof— Section 7 ofthe Magistrates' Courts Act 1984. G Civil Practice and Procedure - Irregularity in the trial proceedings - Whether appellate Court may vary or alter the decision - Section 37 (2) of the Magistrates' Courts Act 1984. Civil Practice and Procedure - Primary Court — Irregularity in Primary Court proceedings - Judgment signed by magistrate only and not signed by assessors - Whether curable. |
13 November 1998 |
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Land claim was time-barred and primary court judgment nullified due to assessor substitution and missing assessors' signatures.
* Customary law – limitation – recovery of clan land – item 6, G.N. 311 of 1964 prescribes 12-year limitation period.
* Civil procedure – substitution of assessors during trial – generally nullifies proceedings if it occasions failure of justice.
* Magistrates' Courts (Primary Courts) (Judgment) Rules, G.N. No.2 of 1988 – requirement to consult assessors and for assessors to sign judgment.
* Magistrates' Courts Act 1984 s.37(2) – irregularities curable unless they occasion failure of justice.
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13 November 1998 |
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A dowry refund claim cannot succeed without a prior divorce; appeal dismissed with costs.
Customary marriage/dowry – refund of dowry requires a prior divorce; procedural correctness – suit must be against proper administrator; frivolous appeal – dismissal with costs.
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11 November 1998 |
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Conviction for forcible sodomy upheld where witness testimony and medical evidence corroborated; eight-year sentence affirmed.
* Criminal law – Unnatural offence (sodomy) – Evidence required to convict under section 154(1) Penal Code – Corroboration by medical report and eyewitness testimony; identification in lock-up supported by lighting.
* Criminal procedure – Appeal – Sufficiency of evidence and standard of proof beyond reasonable doubt.
* Sentencing – Eight years’ imprisonment held appropriate, not excessive.
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10 November 1998 |
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Corroborated eyewitness and medical evidence upheld conviction for forcible sodomy and affirmed an eight-year sentence.
Criminal law – Sodomy (unnatural offence) – Proof beyond reasonable doubt – Eyewitness identification in lock-up – Corroboration by co-remandees and medical (PF3) evidence – Appropriateness of sentence.
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10 November 1998 |
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3 November 1998 |
| October 1998 |
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Conviction for theft by agent upheld and immediate restitution of Tshs.1,350,000 ordered to prevent unjust enrichment.
* Criminal law – theft by agent – conversion of entrusted goods – sale of entrusted property and failure to remit proceeds constitutes theft by agent.
* Sentencing – concurrent restitution – court may order compensation in addition to imprisonment to prevent unjust enrichment.
* Evidence – entrustment, confession, failure to account, and tracing of accused support conviction for theft by agent.
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27 October 1998 |
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Convicted agent who sold entrusted goods and failed to remit proceeds was ordered to refund Tshs.1,350,000 and imprisonment upheld.
Criminal law – theft by agent – entrustment to sell goods and failure to remit proceeds – fraudulent appropriation; Restitution – obligation to refund proceeds/value of stolen property; Revision – review of conviction, sentence and awarding of compensation.
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27 October 1998 |
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Conviction for theft by agent upheld; court ordered immediate restitution of the proceeds to the victim.
Criminal law – Theft by agent – Entrustment of goods to sell and failure to remit proceeds – misappropriation of sale proceeds constitutes theft by agent; restitution may be ordered in addition to imprisonment.
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27 October 1998 |
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Applicant's appeal dismissed: acquittal upheld due to material contradictions, improper swearing of child witness, and inadequate proof of age.
* Criminal law – Defilement – proof beyond reasonable doubt – credibility and material contradictions in prosecution evidence; medical and circumstantial inconsistencies.
* Evidence Act s.127(2) – child witness – voir dire required before swearing; failure undermines admissibility/weight of testimony.
* Proof of age – certified birth entry or proper testimony required; improperly tendered birth certificate inadmissible.
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16 October 1998 |
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Offering suitable transport fulfilled repatriation duty; conviction quashed and unlawful fine set aside.
Employment law – Repatriation obligations – Offering suitable transport (school lorry) satisfies statutory duty to repatriate an employee; employee’s refusal and delay preclude entitlement to subsistence expenses – Sentencing limits under section 154 (first offender fine cap).
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16 October 1998 |
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Employer not guilty where suitable transport was provided and employee refused repatriation, conviction and unlawful fine quashed.
* Employment law – obligation to repatriate dismissed employee – adequacy of transport provided; * Employee conduct – refusal of offered transport and delay bar entitlement to subsistence; * Sentencing – fine must conform to statutory maximum under Employment Ordinance (Cap. 366).
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16 October 1998 |
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Claim for specific cattle failed for lack of identified, probative evidence; appeal dismissed with costs and re‑litigation barred.
Civil appeal – claim for specific movable property – requirement to identify particular animals and prove ownership – speculative claims unsupported by evidence – absence of cause of action – dismissal with costs and prohibition on re‑litigation of same subject matter.
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9 October 1998 |
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Owner who received sale proceeds can be held liable despite not being formally sued; omission to join parties was not fatal.
Civil procedure – non‑joinder/omission to amend parties – minor irregularity remedied where person participated and admitted liability; Sale of land – distinction between sale of trees/crops and sale of plot – conduct and use of land as evidence of transfer of land; Remedy – refund of sale proceeds where seller received purchase money.
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9 October 1998 |