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Citation
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Judgment date
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| December 2015 |
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Invoice-discounting does not bar the applicant's ordinary recovery absent a bona fide dispute.
Commercial law – invoice discounting facility – scope of bank’s recovery rights; Civil procedure – summary recovery (Order XXXV) – bona fide dispute requirement; Contract – alleged misrepresentation/coercion in issuance of post-dated cheques; Personal guarantee – enforceability and bank’s recourse.
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23 December 2015 |
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Court declared a valid sale and transfer of ten shares; damages unproven; costs and interest awarded to plaintiff.
Company law – transfer of shares; admissibility and weight of minutes, transfer form and handwriting expert report; pre-emptive rights in articles as control not absolute bar; bona fide purchaser; damages require proof of loss; costs and interest awarded.
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15 December 2015 |
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Uncontested affidavit supported grant of six‑month interlocutory injunction restraining dealings with company assets and mining licences.
Commercial injunctions; uncontested ex parte affidavits may be relied upon unless palpably false; interlocutory injunction test — Atilio v Mbowe (serious question, irreparable harm, balance of convenience); Cogecot/TANESCO principle (fruits of judgment) not applicable where no decree possession; temporary restraint on dealing with shares, assets and specified mining licences granted for six months.
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14 December 2015 |
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Court granted a six‑month interlocutory injunction restraining respondents from dealing with the 6th respondent's assets, shares and mining licences.
Commercial injunctions; ex parte interlocutory relief on uncontested affidavit; AtiUo v Mbowe criteria (serious question, irreparable injury, balance of convenience); Cogecot Cotton/TANESCO ‘fruits of judgment’ principle considered; restraint on dealings with shares, assets and mining licences pending trial.
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14 December 2015 |
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Extension of time denied where applicant failed to show sufficient, substantiated reasons for procedural delay.
Commercial Procedure – extension of time – requirements for showing sufficient cause; Civil Procedure Code Order VII r.13 and Order VIII r.1(1) – time limits for replies and defences to counter-claims; discretion to extend time – need for material justification; inaction/negligence of party or counsel not excused.
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14 December 2015 |
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Court found a term loan agreement and executed securities (debenture and guarantees); further findings on breach not provided.
* Commercial law Term loan Existence and enforceability of facility agreements, debentures and personal guarantees
* Evidence Reliance on documentary exhibits (loan application, board resolution, loan agreement, debenture, guarantees) where defence does not effectively deny execution
* Defence plea Allegation of non-disbursement due to managing directors death and its effect on liability
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11 December 2015 |
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Overdraft claim struck out for lack of proper demand; business loan recovery awarded with contractual and decretal interest.
Banking law – overdraft payable on demand requires a proper demand notice; business loan repayable by instalments may be enforced on default without prior notice; joinder of claims proper where loans arise from same transaction; frustration defense requires evidence and that the unforeseeable event be fundamental to the contract.
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10 December 2015 |
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Withdrawal of an unargued application does not justify denying respondents their usual costs; costs follow the event.
Civil procedure – withdrawal of application – costs – general rule that costs follow the event – failure to argue application not a sufficient reason to depart – respondents entitled to costs for counter‑affidavits and attending court.
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8 December 2015 |
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Suit struck out: High Court lacked jurisdiction under section 13 CPC; pecuniary jurisdiction depends on substantive claim.
Civil Procedure – Jurisdiction – Section 13 CPC mandates suit be instituted in the lowest grade competent court; High Court jurisdiction subject to other written laws; pecuniary jurisdiction determined by substantive claim not quantified general damages. Limitation – accrual of cause of action is a factual issue unsuitable for resolution as a preliminary objection. Pleadings – plaintiff may not be allowed to amend to cure jurisdictional defect after preliminary objection where that would pre-empt the objection.
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7 December 2015 |
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A registrar must file a presented arbitral award; courts cannot entertain limitation objections before registration.
* Arbitration law – filing and registration of arbitral awards – meaning of 'cause the award to be filed' – arbitrator may authorise another person to file award.
* Registrar’s duty – mandatory filing/registration on presentation – no power to refuse, delay or adjudicate objections before filing.
* Jurisdiction – High Court acquires jurisdiction over an award only after filing/registration; preliminary objections (e.g., time-bar) premature.
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4 December 2015 |
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The applicant proved respondents’ surety liability for unpaid staff group loans; judgment awarded with interest and costs.
Banking law – group personal loans – employer as surety/suretyship – guarantor liability; evidence and burden of proof; creditor’s right to collect from borrowers; account reconciliation and alleged unauthorized debits; award of interest and costs.
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4 December 2015 |
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A sentence imposed without a formal conviction is a fatal irregularity, voiding trial and appellate proceedings and requiring a proper judgment.
Criminal procedure — requirement that conviction precedes sentence (s.235(1), s.312(2) Criminal Procedure Act) — Failure to enter conviction is a fatal irregularity rendering judgment null — Appeals from null proceedings invalid — Order to compose proper judgment.
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2 December 2015 |
| November 2015 |
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Stay refused where arbitration clause covered only part of claim and applicant failed to show readiness to arbitrate.
Arbitration — stay of proceedings under s.6 Arbitration Act — applicability of arbitration clause to dispute; readiness to arbitrate; undisputed claims; undue expense and prejudice as grounds to refuse stay.
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30 November 2015 |
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A withdrawn application does not exempt the applicant from costs; costs follow the event absent good reason.
Civil procedure — Withdrawal of application — Costs normally follow the event — Section 30(2) Civil Procedure Code requires reasons to depart — Notice of intended withdrawal insufficient to deny costs — Successful party entitled to costs where respondent incurred expenses preparing and attending.
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27 November 2015 |
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A bill of costs must be filed within 60 days of judgment pronouncement; late taxation is incompetent for want of jurisdiction.
* Taxation of costs – Bill of costs is an application under item 21, Part III, First Schedule to the Law of Limitation Act – 60-day limitation period. * Limitation accrues from date judgment/decree is pronounced; no requirement to attach judgment/decree when filing bill of costs. * Filing a bill of costs after the 60-day period renders taxation proceedings incompetent for want of jurisdiction. * Discretion on reasonableness of disbursements not reached where jurisdiction is lacking.
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26 November 2015 |
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A bill of costs must be filed within 60 days of pronouncement of judgment; late taxation was incompetent and set aside.
* Civil procedure – Taxation of costs – Bill of costs falls under item 21 Part III First Schedule Law of Limitation Act – 60‑day limitation applies. * Limitation – commencement – limitation period for bill of costs runs from date judgment/decree is pronounced; absence of appended judgment/decree does not delay commencement. * Jurisdiction – proceedings filed after limitation period are incompetent; Taxing Officer lacks jurisdiction.
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26 November 2015 |
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A sale was frustrated by a government ownership claim; court denied specific performance and ordered refund of the deposit with interest.
Contract law – frustration of contract by third‑party government claim; effect of frustration relieving both parties from performance; remedy of restitution under s.73 Contract Act; refusal of specific performance where contract objective is frustrated and significant time has elapsed; award of interest and partial costs.
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26 November 2015 |
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Application to extend time for filing a witness statement struck out for being incompetently brought and lacking sufficient cause.
* Civil Procedure/Commercial Rules – Extension of time to file witness statements – Rule 50 not a proper basis; witness statements are evidence-in-chief not appeals or applications under Limitation Act; recourse to section 95 CPC appropriate.
* Procedure – Competency of application – Court may strike out application suo motu under rule 63(b).
* Delay – Applicant must account for each day of delay and show that proposed witness was uniquely competent to testify.
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26 November 2015 |
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Court appointed NCC as arbitrator after respondent's unproven objections to the applicant's proposed nominee.
Arbitration Act s.8(2) – Court power to appoint arbitrator; impartiality and qualifications of nominee; institutional arbitration under NCC/TIArb rules; evidentiary burden for disqualifying an arbitrator.
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25 November 2015 |
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A suspension that prevents licence performance may constitute termination and breach where justification is unproven.
* Commercial law – Marketing Licence Agreement – existence established by opponent’s admission and annexed copy in witness statement. * Contract law – suspension vs termination – a suspension that prevents contractual performance may amount to termination and breach. * Evidentiary burden – party alleging non-performance must produce credible inspection, sales or financial evidence; mere credit request insufficient.
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24 November 2015 |
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Pleadings must be signed by an advocate on the roll; firm-name endorsement is defective but curable by amendment.
Advocates Act — definition of "advocate" — pleadings must be signed/endorsed by an individual advocate on the roll; law firm name alone is not a recognised advocate; defect is irregular but amendable under substantial justice principle.
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20 November 2015 |
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Diligence and lack of notice can justify extension of time to challenge dismissal for want of prosecution.
Extension of time – Section 14, Law of Limitation Act – Application to set aside dismissal for want of prosecution under Rule 31(1)(a) – Diligence by applicant and lack of notice from registry – Each case decided on its facts; extension granted.
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20 November 2015 |
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Attachment application dismissed for failure to prove ownership and lacking required official searches.
* Execution – Attachment of immovable property – Requirement that properties to be attached be proved to belong to the judgment debtor – Order XXI Rules 12 and 15, Civil Procedure Code (Cap.33 R.E.2002).
* Evidence – Official searches and title documents – photocopy of foreign title insufficient without recent official search to establish current ownership.
* Execution procedure – Court may dismiss defective execution application but allow refiling if applicant complies with statutory requirements.
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16 November 2015 |
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Court dismissed counterclaim for lack of pleaded valuation and ordered amendment of defective defence pleadings.
Commercial procedure – pecuniary jurisdiction – plaintiff’s valuation controls – substantive claim value governs jurisdiction, not quantified general damages; pleadings format – Rule 19(1) non‑compliance is procedural irregularity to be cured by amendment rather than dismissal; counterclaim dismissed for lack of valuation/valuation report.
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13 November 2015 |
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Agent who collected municipal levies but failed to remit funds breached the contract; defendant's counterclaim granted.
Contract law – breach by agent for failure to remit collected public levies; agency/representative evidence; negligent misstatement – no liability where municipal direction to collect at reduced lawful rate; counterclaim for unpaid levies granted.
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13 November 2015 |
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A missing drawer’s name/signature does not fatally defect a plaint signed by a qualified advocate; preliminary objection overruled.
Advocates Act ss.43–44 – signature and name of drawer of pleading – provisions target unqualified persons, not qualified advocates; preliminary objection on technicality; sparing use of constitutional arguments; dispensing justice without undue technicalities.
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12 November 2015 |
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Reported
A plaint signed by the applicant's advocate is not fatally defective for omitting the drawer's name under the Advocates Act.
* Advocates Act (ss.43–44) – applicability to unqualified persons versus qualified advocates; pleading formalities – requirement for drawer's name/signature. * Civil procedure – preliminary objection – striking out for technical non‑compliance. * Constitutional law – avoid invoking Constitution where ordinary law suffices; spare use of constitutional provisions.
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12 November 2015 |
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Whether a plaint without the drawer's name/signature is fatally defective when signed by a qualified advocate.
Advocates Act ss.43–44 – Requirement of name/signature of drawer – Applicability to unqualified persons not to qualified advocates; Preliminary objection – technicalities versus substantive justice; Constitution – reserve use where statutory law suffices.
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12 November 2015 |
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Unproven settlement and unsubstantiated fraud allegations do not amount to sufficient cause to set aside an ex parte judgment.
* Civil procedure – Setting aside ex parte/default judgment – Order IX r.13 CPC – requirement to show lack of service or sufficient cause. * Settlement agreements – effect on pending proceedings – failure to record/raise settlement does not excuse non-appearance. * Fraud/misrepresentation – higher evidential standard required to vitiate judgment. * Discrepancy in execution amount not a ground to set aside default judgment.
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12 November 2015 |
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Applicant failed to prove sufficient cause or fraud to set aside an ex parte judgment; application dismissed with costs.
Civil procedure – Setting aside ex parte judgment under Order IX r.13 – requirement to show lack of service or sufficient cause; Settlement agreements reached outside court – effect on attendance; Allegations of fraud/misrepresentation – higher standard of proof in civil cases; Discrepancy in execution sum not ground to set aside ex parte decree.
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12 November 2015 |
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Court struck out late counter-affidavits for non-compliance with timetable; oral extension without leave was incompetent.
Civil procedure – compliance with court orders – late filing of pleadings – exercise of inherent powers not to cure counsel’s negligence; Order XLIII CPR – applications to be by chamber summons supported by affidavit unless leave obtained; striking out late affidavits and loss of right to oral reply.
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12 November 2015 |
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Court granted temporary injunctions restraining share settlement and transfers pending suit, limited to six months, costs in the cause.
Civil Procedure – Interim injunctions under Order XXXVII r.1 and r.3 – restraints on stock exchange and share transfer registration pending main suit; duration limited to six months (extensions up to one year aggregate); costs in the cause where respondents concede.
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12 November 2015 |
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An application to extend a commercial case lifespan filed after the prescribed window is time-barred and incompetent.
Commercial Court practice — lifespan of cases (10–12 months) — Rule 32(3) prescribes oral application within 30 days before expiry — absence of post-expiry extension by design; Rule 4 and s95 CPC cannot circumvent specific time limits; missed window requires s14(1) Law of Limitation Act application first.
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10 November 2015 |
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Court disallowed late attempt to summon an unlisted witness without a required witness statement, finding it circumvents Commercial Rules.
* Civil Procedure – Order 16 Rule 1 CPC – scope and application to party witnesses; cannot be used to add unlisted witnesses without filed witness statements under Commercial Rules.
* Commercial Division Procedure – Rule 49 – mandatory filing of witness statements within seven days after failed mediation and before settlement of issues; no provision for late additions or extensions.
* Court’s power to summon strangers – Order 16 Rule 14 CPC – court may of its own motion summon persons not called by parties.
* Abuse of process – using Order 16 Rule 1 to circumvent Rule 49 amounts to procedural abuse.
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9 November 2015 |
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Admission of a mortgage loan plus evidence of part-payment can justify leave to defend a mortgage summary suit.
Mortgage summary proceedings; Order XXXV Rule 3 as amended by section 25(b) Mortgage Financing (Special Provisions) Act 2008; leave to defend requires demonstration that loan (or portion) was discharged or not taken; admission plus proof of part-payment may satisfy threshold; arguable title-transfer issue affecting mortgagor status warrants full trial.
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6 November 2015 |
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Reported
Contractual overpayment claims against the supplier (2006–2009) were time-barred; bank’s preliminary objections were overruled.
Civil procedure — preliminary objections — limitation of actions — Law of Limitation Act (six-year period for contract claims) — when cause of action accrues — cause of action and pleadings — frivolous/vexatious and abuse of process.
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6 November 2015 |
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6 November 2015 |
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The respondent's counterclaim against the supplier was dismissed as time‑barred; the applicant's preliminary objections were overruled.
Law of Limitation – contractual claims governed by six‑year limitation (Part I, item 7); accrual dates determinative of limitation; Preliminary objections – limitation issues requiring factual/record scrutiny are unsuitable for summary disposal; Cause of action – material facts alleging transfers and non‑payment suffice to plead cause of action; Counterclaim – not frivolous or vexatious where it arises from same transactions as main suit.
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6 November 2015 |
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Applicants failed to show sufficient reasons to extend time to file witness statements; application dismissed with costs.
* Civil procedure – extension of time – application to enlarge time to file witness statements – requirement to show sufficient reasons and account for each day of delay.
* Evidence – affidavits – necessity of supporting affidavit from alleged custodian of documents.
* Procedure – reliance on illness or unavailability of counsel as ground for enlargement of time – insufficiency without corroboration.
* Court of Appeal Rules – Rule 8 (points of law) not directly analogous to justify extension in Commercial Division without sufficient reasons.
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4 November 2015 |
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Res subjudice applies only where a prior suit's entire subject matter is identical; the plaintiff's loan claim may proceed.
* Civil Procedure – res subjudice – section 8 Civil Procedure Code – applicability requires identity of whole subject matter, same parties/title, prior suit pending in competent court.* Res subjudice vs common issues – ‘directly and substantially in issue’ demands entire subject matter identity, not mere overlap.* Preliminary objection – pleadings-tested on balance of probabilities.* Authorities: Mulla on CPC; Supreme Court of India guidance; local precedent on identity of subject matter.
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3 November 2015 |
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Res subjudice under section 8 CPC requires identical whole subject matter; defendants' stay objection was dismissed.
Civil procedure – res subjudice (section 8 CPC) – requires identity of the whole subject matter; mere overlap of issues insufficient; prior land suit did not render present loan recovery suit res subjudice.
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3 November 2015 |
| October 2015 |
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An objector must prima facie prove bona fide title/registration at attachment date; failure leads to dismissal.
Execution — Order 21 Rules 57–62 — summary inquiry — objector must prima facie show possession under bona fide claim of title or registration at date of attachment; burden to adduce title documents; consent/compromise decree not set aside by Order 21 objection.
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30 October 2015 |
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Reported
Objector failed to produce prima facie title to resist attachment; summary proceedings cannot impeach a consent decree.
Civil procedure – Order XXI Rules 57–62 CPC – summary objection to attachment – objector must show prima facie title or registration/possession at date of attachment; hire‑purchase and registration establish saleable interest; consent/compromise decree not set aside in summary objection proceedings.
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30 October 2015 |
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Typographical mis‑citation and some legal wording in an affidavit do not render a leave application incurably defective; amendment permitted.
* Civil procedure — preliminary objections — mis-citation of statute — typographical error — amendment allowed under Rule 24(3)(a).
* Evidence — affidavits — permissible content — distinction between factual statements and legal argument; affidavit containing some legal content but also factual matter not incurably defective.
* Appellate practice — leave to appeal — enabling provision Section 5(1)(c) Appellate Jurisdiction Act (Cap 141).
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30 October 2015 |
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Reported
Court lifted corporate veil and held a company director personally liable for unpaid decretal sum, ordering payment within 30 days.
Civil procedure – Execution of decree – Order XXI Rules 9 & 10 – Arrest/detention of director as civil prisoner; Corporate law – Salomon principle and exceptions – Lifting corporate veil in exceptional circumstances; Execution pending appeal – Appeal does not stay execution absent order of stay; Inherent powers – Section 95 Civil Procedure Code used to lift veil and hold director personally liable.
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30 October 2015 |
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Court dismissed petition to set aside arbitral award: only misconduct, fraud, or facial error permit interference.
Arbitration Act s.16 – setting aside arbitral awards – grounds limited to misconduct, fraud/corruption or error apparent on the face of the award; Court’s supervisory role narrow – cannot re-open findings of fact or law; appeal in disguise principle; jurisdictional objections may be decided preliminarily.
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30 October 2015 |
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Applicant granted extension to apply to set aside default judgment due to substituted service and prior counsel’s mishandling.
* Civil procedure – extension of time – application to set aside default/ex parte judgment – sufficiency of reasons for delay. * Service – substituted service by publication – propriety where respondent alleged to know applicant’s whereabouts. * Inaction or mishandling by previous counsel – relevance to accounting for delay.
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29 October 2015 |
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Summary judgment entered where defendants' leave to defend was struck out and plaint's allegations deemed admitted.
* Civil Procedure – Summary judgment – Order XXXV r.2(2)(a) CPC – application for leave to defend struck out – plaint's allegations treated as admitted; * Purpose of summary procedure: expeditious disposal where defendant has no substantial defence; * Reliefs: principal, contractual interest to judgment date, post-judgment interest (7%), costs.
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29 October 2015 |
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Where defendants fail to apply to defend under Order XXXV, court may enter summary judgment for debt, interest and costs.
* Civil Procedure – Summary procedure – Order XXXV r.2(2)(a) CPC – Effect of failure to apply for leave to defend – Allegations deemed admitted and entitlement to summary judgment.
* Commercial/Banking law – Recovery of debt – Award of pre-judgment and post-judgment interest and costs in summary judgment.
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28 October 2015 |
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Failure by the applicant to cite the correct sub‑rule for leave to defend is a fatal irregularity; application struck out.
Civil procedure — preliminary objection — improper or non‑citation of enabling provisions — fatal irregularity; amendment after preliminary objection prohibited; mortgage summary suit — Order XXXV rule 3 (as amended by Mortgage Financing (Special Provisions) Act) governs leave to defend.
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28 October 2015 |