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Citation
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Judgment date
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| December 2004 |
|
|
Court allowed a defaulting defendant to defend where a meritorious defence existed, but awarded costs to the plaintiff.
* Civil procedure — Default and late pleadings — Court discretion to allow a defendant in default to defend where a defence has been disclosed and can be compensated by costs; interlocutory judgment and failure to press for formal proof; award of costs as conditional relief.
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31 December 2004 |
|
By consent key estate documents were admitted; the plaintiff withdrew claims under O.22 r.1(2) and administrators’ defence costs were ordered paid from the estate.
Civil procedure – Scheduling conferences and consent admissions – Admission into evidence by consent of family meeting minutes and administration documents – Withdrawal of claims and counterclaims under O.22 r.1(2) CPR – Costs payable out of deceased’s estate – Administrators’ non-filing of inventory/account.
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15 December 2004 |
|
Appellant failed to prove consideration for a dishonoured cheque; appeal dismissed though trial court improperly raised an unpleaded issue.
Bills of Exchange – cheque payable on demand – consideration and holder in due course; Pleadings and issues – court raising new issues not pleaded or framed – requirement to give parties opportunity to address; Appellate review – first appeal duty to re-evaluate evidence.
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15 December 2004 |
|
Civil Procedure
|
14 December 2004 |
|
Appeal dismissed: insufficient evidence that forwarder caused vehicle damage; trial court’s factual findings and costs order upheld.
Carriage and forwarding — alleged damage to imported vehicle — burden and sufficiency of proof to attribute loss to forwarding agent; credibility and evaluation of oral evidence; consequential orders (return of log book); exercise of judicial discretion on costs.
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1 December 2004 |
| November 2004 |
|
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Civil Procedure|Pleadings
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16 November 2004 |
|
Application to reopen defence and admit unpleaded valuation report refused for delay, lack of diligence and noncompliance with pleadings.
* Civil Procedure Act s.98 – discretionary equitable relief – reopening defence; * Civil Procedure Rules Order 6 r.1(b) – requirement to accompany pleadings with list of witnesses and documents; * Late introduction of evidence excluded where not pleaded; * Applicant’s lack of diligence and counsel’s deliberate election preclude relief; * Reopening would prejudice respondent and inconvenience court.
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16 November 2004 |
|
Contract Law|Breach of Contract
|
15 November 2004 |
|
Court dismissed application to set aside judgment, finding Gazette notice striking the respondent off the register illegal and ineffective.
Companies law – striking off register – validity of Gazette notice under s.343(5) read with s.343(3) of the Companies Act; Civil procedure – inherent jurisdiction s.98 to set aside judgment; Decree against non-existent party – nullity only if striking off effective; O.21 CPR (death of party) not applicable to ineffective striking off.
|
11 November 2004 |
|
Labour and Employment Law|Termination and dismissal
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4 November 2004 |
|
Termination after exoneration was unfair; arrest was lawful; award of one year’s salary, costs and interest.
* Employment law – wrongful/constructive dismissal – employer must follow contractual terms and disciplinary findings; termination after exoneration can be unfair.
* Criminal process instigated by employer – arrest/detention lawful where legitimate suspicion of loss of public funds exists.
* Exemplary damages – require oppressive or unconstitutional conduct; ordinary arrest and investigation do not suffice.
* Remedies – compensation equivalent to one year’s salary, deduction of amounts already paid, costs and interest.
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3 November 2004 |
|
Labour and Employment Law|Termination and dismissal
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3 November 2004 |
| October 2004 |
|
|
Application to amend plaint struck out for non-compliance with Order 6(1)(b) and for being supported by a false affidavit.
Civil procedure – Amendment of pleadings – Order 6 r.1(b) CPR – requirement for summary of evidence, lists of witnesses, documents and authorities; exceptions where affidavit may suffice – supporting affidavit must be truthful; an affidavit containing an obvious falsehood renders application incompetent – irregular swearing of affidavit offending Oaths Act undermines credibility.
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27 October 2004 |
|
Criminal law
|
27 October 2004 |
|
Land|Tenancy
|
26 October 2004 |
|
Civil Procedure
|
26 October 2004 |
|
Termination without being informed or heard was unlawful; employee awarded notice pay balance and substantial general damages.
Employment law – wrongful/unlawful termination – misapplication of termination regulation and breach of natural justice (no notice of allegations or hearing) – entitlement to statutory notice pay; non-retrospectivity of improved terminal benefits scheme; general damages for reputational and employability loss.
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21 October 2004 |
|
Prosecution failed to prove accused's participation in a nighttime murder; identification and alibi issues led to acquittal.
* Criminal law – murder – elements established (death, unlawfulness, malice) but participation disputed.
* Evidence – visual and aural identification at night requires caution; inconsistencies and afterthoughts undermine reliability.
* Evidence – value of contemporaneous statements to police for assessing consistency.
* Defence – alibi corroborated by documentary movement order and witnesses; prosecution's failure to investigate or rebut.
* Motive/evidence – family land dispute may explain fabrication of allegations.
* Procedure – acquittal and discharge under section 81(6) of the Trial on Indictments Decree.
|
21 October 2004 |
|
Family Law
|
19 October 2004 |
|
Non-compliance with Order 6 rule 1 CPR renders an application incompetent; clerical dating errors do not automatically time-bar it.
Civil procedure – Order 6 rule 1 CPR – Mandatory requirements for notice of motion: summary of evidence, lists of witnesses, documents and authorities – Unsigned/undated accompaniments render application incompetent; clerical dating errors do not of themselves make application time-barred.
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19 October 2004 |
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Long interdiction and a biased inquiry rendered the plaintiff's dismissal unlawful; compensation, gratuity, pension, costs and interest awarded.
Administrative law – Employment law – Public service interdiction and dismissal – Natural justice – Right to legal representation and to be informed of inquiry findings – Procedural irregularity and oppressive interdiction – Remedies: arrears, gratuity, pension, costs, and interest.
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12 October 2004 |
|
Civil Procedure
|
7 October 2004 |
|
Plaintiffs failed to prove assault, false imprisonment or defamation; trial court’s evaluation of evidence was upheld and appeal dismissed with costs.
Civil litigation — Defamation, false imprisonment and assault — Burden of proof on balance of probabilities — Need for independent eyewitnesses for public incidents — Hearsay inadmissible to prove primary facts — Police intervention in public interest to prevent sectarian violence — Plaintiff not obliged personally to testify.
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5 October 2004 |
| September 2004 |
|
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Delict and Tort Law|Negligence
|
29 September 2004 |
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Delict and Tort Law|Defamation
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28 September 2004 |
|
Land
|
23 September 2004 |
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Evidence Law
|
23 September 2004 |
|
Land
|
21 September 2004 |
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Contract Law
|
14 September 2004 |
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Criminal law
|
14 September 2004 |
|
Land
|
12 September 2004 |
|
Delict and Tort Law|Defamation
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10 September 2004 |
|
A registrant who purchases for value without notice and registers after caveat removal may evict alleged occupants lacking bona fide occupant status.
Land law – sale and registration – bona fide purchaser for value without notice – caveat removed before registration; bona fide occupant – Section 29(2)(a) Land Act – requirement of 12 years unchallenged occupation prior to Constitution; fraud in conveyancing – burden to attribute fraud to transferee; remedies – eviction, damages, interest and costs.
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10 September 2004 |
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Court quashed unlawful forfeiture and excessive custodial sentences, condemning degrading, discriminatory punishments and ordering return of the vehicle engine.
Criminal law – Idle and disorderly (s.167 PCA) – Sentencing – Excessive custodial sentence where fine is available – Forfeiture – Lawful authority and due process required – Third‑party ownership – Destruction of clothing and shaving of heads – Cruel, inhuman or degrading treatment – Discrimination against female accused.
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7 September 2004 |
|
An administrator cannot reclaim land lawfully gifted inter vivos; court must determine boundaries before ordering eviction.
Succession and property law – inter vivos gift – demarcation of land – bona fide purchaser for value – duty to determine boundaries before ordering eviction or damages – remit for physical demarcation in presence of local council and elders.
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1 September 2004 |
| August 2004 |
|
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Administrative Law
|
30 August 2004 |
|
Identification evidence was unreliable and the prosecution failed to disprove the accused’s alibi; accused acquitted of defilement.
Criminal law – Defilement (s.129 Penal Code) – Proof of age and penetration – Identification evidence – Caution where identification occurs at night under surprise and fear – Alibi – burden on prosecution to negativate alibi.
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30 August 2004 |
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Criminal law
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19 August 2004 |
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High Court has jurisdiction to judicially review a Commission of Inquiry and applicant had cause of action and standing.
Administrative law — judicial review — High Court supervisory jurisdiction over commissions of inquiry — whether a commission chaired by a High Court judge is reviewable; cause of action for review of a commission's report; locus standi to seek declaration, certiorari and injunction.
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16 August 2004 |
|
Criminal law
|
13 August 2004 |
|
Criminal law
|
13 August 2004 |
|
Criminal law
|
12 August 2004 |
|
Criminal law
|
12 August 2004 |
|
Criminal law
|
5 August 2004 |
| July 2004 |
|
|
Criminal law
|
28 July 2004 |
|
Prosecution failed to prove beyond reasonable doubt that the accused participated in defilement; accused acquitted.
Criminal law – Defilement – proof beyond reasonable doubt; Corroboration rule in sexual offences rendered non-mandatory by constitutional equality – complainant’s evidence may suffice; Circumstantial evidence must exclude all other hypotheses; Alibi evaluation and weight of inconsistent statements; Proper police investigation and evidential chain for documents/photographs.
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28 July 2004 |
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Criminal law|Evidence Law
|
27 July 2004 |
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Criminal law|Evidence Law
|
23 July 2004 |
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Criminal law|Evidence Law
|
23 July 2004 |
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Criminal law|Evidence Law
|
22 July 2004 |