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Citation
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Judgment date
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| December 1998 |
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A statutory appeal fatally flawed by procedural errors and party misjoinder could not stand, rendering the High Court's orders a nullity.
Civil procedure – statutory appeals – section 14 Expropriated Properties Act – necessary parties – absence of Attorney General – procedural irregularities – interlocutory applications not ruled on – mistrial – nullity of proceedings – joinder of parties – when to institute a separate civil suit for proprietary relief.
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23 December 1998 |
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Court affirms malicious prosecution finding, upholds trial judge’s credibility findings, and dismisses appeal with costs.
Malicious prosecution – elements: instigation by complainant, lack of reasonable/probable cause, malice, favourable termination; Evidence – witness may testify to what was heard at a meeting (s.58(b) Evidence Act); failure to challenge or call rebutting evidence affects credibility; appellate review – trial judge’s assessment of witness credibility afforded deference.
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22 December 1998 |
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16 December 1998 |
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Failure to prove lawful importation/ownership justified condemnation of seized goods despite procedural irregularity on an alternative acquittal.
Customs and excise – forfeiture/condemnation of seized goods – onus under s.167 to prove lawful importation/ownership – competence of lay witness with practical experience to identify forged documents – effect of acquittal on alternative count on forfeiture orders.
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14 December 1998 |
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Court finds affidavit objection for lacking source of information unfounded, overruling procedural contravention claim.
Civil Procedure - Affidavit - Requirement to state source of information - Grounds of belief versus source of information.
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3 December 1998 |
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Appeal dismissed: contract and particular partnership (or holding out) established; special and general damages and interest award upheld.
Contract for sale of goods — proof by LPO, cheque and conduct; Particular partnership and/or holding-out (s.18 Partnership Act) — liability for credit given; Assessment of special and general damages — proof and quantum; Judicial discretion to award interest on decretal sums (Civil Procedure Act) — commercial loss and rate of interest.
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2 December 1998 |
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Reinstatement was wrongly granted: a cash security order cannot be satisfied by an unaccepted guarantee and delays were not proven.
Civil procedure – Order 23 Rule 2(1) & (2) – reinstatement of suit dismissed for failure to deposit security for costs; sufficiency of cause; substitution of guarantee for court-ordered cash deposit; international transfer delays as justification; costs follow the event.
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1 December 1998 |
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EPA claims for improvements must go to the Verification Committee; High Court owes appellate, not original, jurisdiction.
Expropriated Properties Act – compensation for improvements – Regulation 8(1) Verification Committee – Section 11(2) liability for improvements – Section 12 valuation by Minister with Board of Valuers – Section 14(1) appeal to High Court – High Court has appellate, not original, jurisdiction in EPA compensation claims; failure to follow statutory procedure renders trial a nullity.
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1 December 1998 |
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Commission payable only upon legal completion of sale; appellant bound by written acknowledgement and pleadings, appeal dismissed.
Property law – broker/agent commission – commission payable only on completion of sale (transfer of title) – Registration of Titles Act s.51; Contract law – effect of receipt/acknowledgement containing conditional refund clause; Evidence & procedure – parties bound by their pleadings; part performance insufficient to override statutory requirement for completion.
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1 December 1998 |
| November 1998 |
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Damages
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29 November 1998 |
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Payment or clandestine possession alone does not make an oral land sale enforceable; possession prevails against subsequent intruders.
* Land law – Contracts for sale of land – Statutory requirement for written evidence or equitable part performance.
* Part performance – Payment of purchase price and clandestine possession do not amount to part performance without vendor's consent.
* Transfer by registered proprietor – Cannot validate an unenforceable parol contract if transferor was not party to the agreement.
* Possession – Possession is the root of title as against subsequent intruders; third parties cannot enforce others' contracts.
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26 November 1998 |
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Cancellation of a fraudulently obtained certificate of title voids the respondent’s lease, entitling the appellant to eject unlawful structures.
Land law – title and leases – minute offering lease referring to different person/plot – administrative irregularity; Registration of Titles Act s.76 – cancellation of certificate of title procured by fraud renders it void; ministerial consent for lease – absence may affect validity; appeal – trial judge’s mis-evaluation of evidence and legal effect of cancellation.
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24 November 1998 |
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23 November 1998 |
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23 November 1998 |
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A statutory 90‑day time limit for election petitions is directory and does not oust the court’s jurisdiction if expired.
Local Government Act s143(2) – election petitions – statutory 90-day hearing requirement construed as directory, not jurisdictional; construction of "shall"; court retains jurisdiction and inherent power to manage time limits; late judgments not automatically null and void.
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20 November 1998 |
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Section 143(2)’s 90‑day limit is directory, not jurisdiction‑ousting; appeal dismissed and costs awarded.
Local Government Act s.143(2) — statutory time limit for election petitions; "shall" — directory vs mandatory; jurisdiction; extension of time; purposive construction; inherent jurisdiction to prevent injustice; election petitions.
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20 November 1998 |
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Plaintiff may sue one of several jointly and severally liable defendants; unobjected exhibits and explanations admissible; appeal dismissed.
• Civil procedure – joinder and severance of defendants – plaintiff entitled to pursue one jointly and severally liable defendant.
• Civil procedure – striking off unserved defendants – preferable to remove unserved defendant when plaintiff declines to proceed.
• Evidence – admissibility of documents and explanatory oral evidence where no objection is raised and documents corroborate testimony.
• Burden of proof – civil standard on balance of probabilities; respondent discharged evidential burden.
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20 November 1998 |
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An innocent purchaser cannot acquire title where fraudulent Mailo titles were created over the respondent’s freehold.
Land law – creation of titles – fraudulent superimposition of Mailo titles on existing Freehold – cancellation permissible; Registration of Titles Act – bona fide purchaser protection unavailable where no valid title existed to be conveyed; Estoppel – proprietor’s advisory correspondence did not estop enforcement of superior Freehold title; Trespass – nominal damages appropriate for infringement of legal right; Costs – follow the successful party.
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19 November 1998 |
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Completed customary succession under Toro law cannot be undone by later Administrator General grants.
* Succession – customary succession (Toro) – installation of heir and distribution by clan elders – effect of completed customary administration on statutory administration. * Evidence – onus of proving native customary law rests on party relying on it; proof may be by elders/eyewitnesses. * Succession (Amendment) Decree, 1972 – does not affect estates whose administration was completed before coming into force. * Administrator General – limits to intervening where customary installation and distribution have been completed.
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19 November 1998 |
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Pauper application under Rule 112(1) denied because a prior Supreme Court decision made the intended appeal unarguable.
Court of Appeal – Rule 112(1) – Pauper status for appeals – two-limb test: lack of means and reasonable possibility of success – unchallenged affidavit evidence – binding effect of prior Supreme Court decision preventing grant where intended appeal is unarguable.
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11 November 1998 |
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Sub‑hiring a hired vehicle to strangers without consent amounts to conversion; theft after wrongful parting does not defeat detinue claim.
Contract/hire agreements – meaning of “self-drive” and scope of control; Bailment/detinue and conversion – wrongful parting with possession and continuing duty to deliver; Knowledge of loss – subsequent awareness of theft does not defeat conversion/detinue claim; Frustration – not available where contract was already breached by wrongful parting.
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10 November 1998 |
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Whether distraint and eviction were lawful where the manager had a valid power of attorney and bailiffs acted through a licensed court bailiff.
* Property law – Distress for rent – Distress for Rent (Bailiffs) Act, Cap. 68 – who may levy distress (landlord, landlord’s attorney, legal owner of reversion, or person authorised by certifying officer). * Agency and authority – Validity and effect of power of attorney to manage property and instruct bailiffs. * Execution – Use of licensed court bailiff through his firm; employee acting on firm’s behalf lawfully executing distraint and eviction. * Civil procedure – Admissibility of documents: trial judge should rule on admissibility when issue is raised.
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5 November 1998 |
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Whether eviction and distraint were lawful under the Distress for Rent Act and executed by authorized agents.
* Property law – distress for rent – persons entitled to levy distress under Distress for Rent (Bailiffs) Act, Cap. 68; power of attorney and manager’s authority. * Execution – lawfulness of eviction when carried out by an employee of a firm whose proprietor is a licensed court bailiff. * Evidence – trial judge’s duty to rule on documentary admissibility at time objection is raised.
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4 November 1998 |
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1 November 1998 |
| October 1998 |
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29 October 1998 |
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Loan for a printing press was general, bank not liable for supplier’s non-delivery or borrowers’ corrupt acts; mortgage remained enforceable.
Contract law – loan for setting up business – description of intended goods not necessarily an essential term; Acceptance – later document ineffective where acceptance occurred earlier; Agency and bank liability – acts of individual officer not binding absent authorization; Illegality – borrowers cannot rely on their own corrupt acts to avoid obligations; Procurement – bank as facilitator not guarantor of supplier’s delivery; Mortgage enforceability despite non-delivery.
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28 October 1998 |
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Written order specified William Street premises and the monthly contract had lapsed, so no liability for the theft.
Contract interpretation – clarity of written order; location specified as 'situation: shop Plot No. 288 William Street' – extrinsic evidence unnecessary; Contract duration – monthly contract payable in advance; lapse where advance payment for subsequent month not proved; Estoppel – not established; vicarious/liability – no contractual duty at time of theft.
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26 October 1998 |
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Whether a clear written security contract covered the burgled premises and whether it subsisted at the time of theft.
Contract interpretation — clear written terms prevail; extrinsic evidence not admissible to vary unambiguous document; monthly security contract payable in advance — expiry for non-payment; no contractual liability when no subsisting contract; estoppel and vicarious liability not established.
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26 October 1998 |
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Appeal struck off where appellant disowned the filed record and failed to file a substitute; no order as to costs.
Appeal procedure – Record of Appeal – Disownment of record by appellant – Failure to file substitute record – Appeal struck off; no order as to costs.
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26 October 1998 |
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23 October 1998 |
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Court refused substitution of missing specimen signature as manufactured evidence and ordered retrial with parties to bear costs.
* Evidence - Missing trial exhibit (specimen signature) - whether substitution on appeal permissible under Rule 29(1)(b).
* Evidence - Manufacturing evidence - fresh specimen signatures on appeal prohibited.
* Civil procedure - absence of vital evidence on appeal - retrial as appropriate remedy.
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20 October 1998 |
| September 1998 |
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Section 21 Limitation Act does not bar executors' applications for probate; such applications are not claims to estate shares.
* Limitation Act s.21 – scope – does not apply to applications for probate or letters of administration; applies to claims to shares or interests in an estate.
* Probate – applying for probate is not a claim to beneficial interest but an application to administer the estate.
* Civil procedure – preliminary objection – time‑barred defence properly rejected where limitation provision inapplicable.
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24 September 1998 |
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Unregistered debentures at Land Registry do not invalidate receivers’ sales; purchaser’s title stands absent proved fraud.
Debentures and charges – debentures registered at Companies Registry – crystallisation on appointment of receivers – receivers’ authority to sell and execute transfers under an express power of attorney clause – Registration of Titles Act not automatically invalidating transfers where debentures are not registered at Land Registry – bona fide purchaser for value – fraud must be specifically pleaded and strictly proved – burden of proof.
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15 September 1998 |
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Receivers appointed under debentures validly sold charged land; purchaser was bona fide and fraud was not proved.
* Company/secured transactions – Debentures registered at Companies Registry – legal charge/crystallisation – powers of receivers to sell. * Property law – Registration of Titles Act vs Companies Act – effect of non-registration at Land Registry. * Conveyancing – validity of transfers executed by receivers/agents and protection of bona fide purchasers. * Evidence – fraud must be specifically pleaded and strictly proved; burden of proof.
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15 September 1998 |
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Transfers by receivers under crystallised debentures were valid; fraud must be specifically pleaded and proved to impeach a purchaser’s title.
Company/secured transactions – debentures registered at Companies Registry; receivers’ powers and agency; enforceability of sales under crystallised charges; Registration of Titles Act — interplay with Companies Act; fraud — requirement of specific pleading and strict proof; bona fide purchaser protection.
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15 September 1998 |
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Filing fees must be paid when lodging an appeal; formal decree extraction is not a prerequisite to appeal; application dismissed.
Civil procedure — Appeal competence — Filing fees must be paid at time of lodging; no document properly filed until fees paid — Extraction of formal decree no longer a legal prerequisite — Record of appeal must contain judgment or reasoned order — Irregularities in extraction may be challenged in High Court.
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14 September 1998 |
| July 1998 |
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Court strikes out appeal for lacking a valid notice of appeal, denying adjournment, awarding costs to respondent.
Civil procedure – appeal – notice of appeal – requirement for notice – adjournment for filing out of time.
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31 July 1998 |
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Ministerial repossession letters under the Expropriated Properties Act conferred locus and rendered the suit not time-barred.
Expropriated Properties Act 1982 – remedial statute – Section 3 directory not mandatory; Minister’s power to issue notices and accept late repossession applications; ministerial letters held to amount to certificates of repossession; nulled private transfers; consent judgment not binding non-parties; locus standi and cause of action; counter-claim does not abate automatically.
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3 July 1998 |
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Ministerial repossession letters under the Expropriated Properties Act can cure delay, confer locus to sue, and defeat occupant’s consent judgment.
Expropriated Properties Act 1982 – Section 3 directory; remedial statute to be liberally construed – Ministerial General Notice and SI extending application period validly issued; administrative letters (Annexture B and F) can constitute Certificates of Repossession if substance complies with Act; equitable right and locus to sue arise on repossession certificate; consent judgment cannot bind non-party former owner nor override statutory nullification of title; counter-claim does not abate when main suit dismissed and must be heard on merits.
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3 July 1998 |
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Leave for certiorari was time‑barred and prerogative relief inappropriate where a statutory appeal existed; appeal dismissed.
Administrative law – certiorari and prohibition – time limitation under s.34(6) Judicature Act – limitation computed from decision date absent evidence of communication; Administrative law – statutory appeal (s.14 Expropriated Properties Act) must be exhausted before prerogative relief; Constitutional procedure – Article 137(5) reference is discretionary; Interim relief – injunction not granted against registered proprietor where challenge was time-barred.
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2 July 1998 |
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Ex‑parte judgment set aside where amended plaint introduced new allegations without serving the defendant and triable issues existed.
Civil procedure – Ex‑parte judgment – Setting aside under Order 9 r.24; Service of amended plaint introducing new cause of action; Discretion to grant relief where defendant shows satisfactory explanation and triable defence; Refusal of review where appropriate relief available under Order 9.
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2 July 1998 |
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Application for judicial review in expropriated property matters is barred where not filed within time and statutory appeal exists.
Judicial review – Certiorari and prohibition – Statutory limitation period – Expropriated property – Alternative statutory remedies – Prerogative writs and availability of appeal – Constitutional reference discretion.
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2 July 1998 |
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Failure to serve and retain an endorsed request for the record under Rule 82(3) is fatal and justifies striking out the notice of appeal.
Civil procedure — Court of Appeal Rules 1996 — Rule 81 application to strike out notice of appeal for failure to take essential step — Rule 82(3) requirement to serve and retain proof of service of request for record — endorsed/stamped copy as proof — affidavit of service insufficient alone — Rule 52(2)(c)/(d) jurisdiction and extension of time in strike-out applications.
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1 July 1998 |
| June 1998 |
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Appellant failed to prove fraud; respondent held to be bona fide purchaser protected by Registration of Titles Act.
* Land law – transfer of registered land – allegation of fraud in transfer – burden of proof on party alleging fraud; * Certificate of title (s.55 R.T.A.) conclusive unless fraud proven; * Bona fide purchaser for value without notice – protection under R.T.A. (ss.145,184,189); * Court’s duty not to lead evidence to fill gaps in a party’s case; * No obligation to call Ministry of Lands officer to explain standard registration procedure.
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29 June 1998 |
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Compound interest not implied in arbitration award; interest is simple and parties may not rewrite an award.
Arbitration award – interest – whether compound interest implied in award; requirement of express or implied agreement (often banker–customer) to charge compound interest; parties cannot retrospectively rewrite an award; assessment of decretal sums and execution remedies (garnishee/attachment).
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26 June 1998 |
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Whether an arbitrator’s award for interest at 30% per annum implied compound interest or only simple interest.
Arbitration award – interest – distinction between simple and compound interest – compound interest requires express or implied agreement or banker–customer relationship – parties cannot rewrite an award by subsequent negotiations; ambiguity should be referred to arbitrator.
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26 June 1998 |
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Court granted extension and validated a late appeal where delay was caused by former advocates and registry.
Civil procedure – extension of time under Rule 4 – wide discretionary powers to extend time; Rule 83(a) – notice of appeal deemed withdrawn does not preclude application for extension; pendency of an incompetent appeal not a bar to extension; delay by former advocates or registry not imputed to vigilant litigant.
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19 June 1998 |
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Court grants extension and validates out‑of‑time appeal where delay caused by former advocates and court, not applicants.
Court of Appeal – extension of time (Rule 4) – validation of documents lodged out of time – effect of notice of appeal deemed withdrawn under rule 83(a) – sufficient reason where delay due to former advocates or court – strike out application.
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19 June 1998 |
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A statute cannot oust the High Court’s constitutional unlimited original jurisdiction; specialist tribunal has concurrent, not exclusive, jurisdiction.
Constitutional law – judicial jurisdiction – Article 139(1) Constitution and s.16(1) Judicature Act – High Court’s unlimited original jurisdiction; Statute (NPART) purporting to grant exclusive jurisdiction to a special tribunal cannot oust High Court jurisdiction; concurrent jurisdiction of specialist tribunal and High Court; ordinary contract/specific performance claims not necessarily within non-performing assets tribunal’s exclusive remit.
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10 June 1998 |
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Minister wrongly relied on an unadmitted 1981 document; Act 9/82 nullified intervening transfers and appeal was allowed.
* Administrative law – Ministerial refusal of repossession certificate – adequacy of reasons and reliance on unauthorised/unproven documents.* Evidence – admissibility and evidential value of unauthorised photocopied documents not tendered in evidence.* Property law – Expropriation and repossession – effect of Expropriated Properties Act 1982 (Act 9/82) nullifying transfers/dealings between 1973 and 21 February 1983.* Civil procedure – appellate review for misdirection and failure to evaluate admitted evidence.
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1 June 1998 |
