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Citation
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Judgment date
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| October 1997 |
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Customary tenant wrongfully evicted; statutory termination procedure not followed, contract uncertain, damages and deposit refund awarded.
Land law – customary tenure (bibanja) – proof by long occupation and cultivation; Land Reform Decree s.7 – procedure for terminating customary tenure; unlawful demolition/eviction where statutory procedure not followed; sale receipts as mere acknowledgements – uncertainty of oral sale agreements and refusal of specific performance; damages and refund of deposit.
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31 October 1997 |
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Creditor's unconsented extension of payment discharged guarantor; late demand failed the guarantee's "immediately" requirement.
Commercial law – Guarantee/suretyship – Timing of demand – meaning of 'immediately' after 30 days. Suretyship – alteration of principal obligation by creditor without surety's consent discharges guarantor. Evidence – admissibility and concealment of documents affecting liability.
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23 October 1997 |
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Creditor's unilateral extension of payment time without guarantor consent discharged the guarantor; claim dismissed.
Guarantee law – requirement to demand payment "immediately" after 30 days – meaning of "immediately" and reasonable time; creditor's unilateral extension of payment time; variation of principal obligation without surety's consent discharges guarantor; admissibility and concealment of documents relevant to entitlement.
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23 October 1997 |
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Court apportioned 50% blame for a head-on collision, rejected inevitable accident, and awarded half the vehicle’s value less salvage plus costs and interest.
Road traffic negligence – duty of care of drivers – standard: reasonable care to avoid colliding with other road users. Inevitable accident – burden to prove event beyond driver’s control that could not have been avoided by greatest care and skill. Apportionment – contributory negligence where both drivers at fault; 50% split where evidence insufficient to exonerate either driver. Damages – special damages must be strictly pleaded and proved; uncontroverted expert valuation accepted for total loss; general damages assessed nominally. Interest and costs – decretal sum to carry interest and taxed costs awarded to successful plaintiff.
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22 October 1997 |
| September 1997 |
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The applicant proved ownership of the vehicle and obtained declaration, immediate surrender, damages, interest and costs.
Property/Ownership – vehicle ownership dispute – validity of purported transfer documents and signatures – adequacy of consideration stated in writings – unlawful detention and damages for loss of rental income.
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25 September 1997 |
| August 1997 |
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Employer vicariously liable for driver who negligently left tractor unattended; plaintiff awarded damages with defendants 80% liable.
Tort—Negligence—Vehicle left unlit and unattended on carriageway—Foreseeability of harm and duty of care—Vicarious liability of employer—Special and general damages—Novus actus interveniens and looters—Apportionment of fault.
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25 August 1997 |
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Plaintiff’s claim dismissed as time‑barred and lacking locus standi for want of statutory repossession certificate.
Limitation Act – section 6 – time‑bar – when cause of action accrues (acquisition by purchaser; vesting in State/Board). Expropriated Properties Act 1982 – section 5(1) and Regulation 10(3) – requirement of statutory certificate of repossession; administrative letter insufficient. Locus standi – possession of valid repossession certificate required to sue for recovery. Effect of prior consent judgment on subsequent claims to same property. Counterclaim abates when principal claim fails.
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18 August 1997 |
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Claim dismissed as time‑barred; plaintiff lacked statutory certificate of repossession and therefore standing; no cause of action.
Limitation Act – section 6 – time began to run from acquisition/taking over dates; Expropriated Properties Act 1982 s.5(1) and Regulations – statutory certificate of repossession required; locus standi – administrative letter insufficient; cause of action – effect of prior consent judgment on title disputes.
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18 August 1997 |
| July 1997 |
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Whether receipt of profit creates partnership and whether an oral guarantee binds the executive in absence of signed memorandum.
Partnership law – sharing of profits is not conclusive evidence of partnership; Contract law – guarantee requires a memorandum or note in writing signed by the party to be charged (s.4 Contract Act); Pleading – legal labels (e.g. "guarantee") must be supported by facts; Burden of proof – defendant must prove entitlement to claimed commissions; Evidence – transfers through personal account do not by themselves establish a guarantee or partnership.
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29 July 1997 |
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Whether plaintiff was owed US$365,000 for coffee pre-finance and whether partnership or guarantee existed.
Partnership law – participation in profits is not conclusive evidence of partnership; examine whole transaction and intention. Contract Act S.4 – guarantee requires a memorandum or note in writing signed by the party to be charged. Evidence – transfers through a director’s personal account may be loans, commissions or repayments; burden on defendants to prove commission entitlement. Remedy – money had and received; order for account; interest and costs.
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29 July 1997 |
| April 1997 |
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Vehicle hired and sub‑hired was stolen; court held contract frustrated and dismissed claim for return or value with costs.
Contract law – hire of chattel – self‑drive hire sub‑hired to third party; frustration by theft or disappearance; liability of hirer on sub‑hire; conversion and detinue – burden of proof; evidential relevance of reporting to police and precautions taken.
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10 April 1997 |
| March 1997 |
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Election set aside: winning candidate lacked requisite education and his nomination was invalid, necessitating a fresh poll.
Election law – qualifications for membership of Parliament – A‑level or statutory equivalent – proof and recognition of foreign/professional diplomas. Election law – nomination requirements – validity of nomination paper – minimum number and validity of supporting signatures. Evidence – standard and burden of proof in election petitions – preponderance of probability but clear proof required; burden may shift when facts are peculiarly within a party’s knowledge. Election law – allegations of malpractice – necessity to prove substantial effect on result before setting aside election.
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24 March 1997 |
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Election set aside for invalid nomination and lack of required candidate qualifications; fresh election ordered.
Electoral law — Candidate qualifications (A-level or equivalent) — Burden and standard of proof in election petitions — Nomination formalities (minimum signatures) — Material nomination defects vitiate election — Malpractice must substantially affect result to void election.
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24 March 1997 |
| February 1997 |
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Specific performance refused where defendant lacked legal title due to government vesting; purchase money refundable.
Property law – expropriated/departed-Asian properties; vesting in Government; ministerial consent; validity of sale; specific performance not available where vendor lacks title; restitution of purchase money and reimbursement of proved disbursements.
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26 February 1997 |
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Whether an award of interest at 30% p.a. implied compound interest and whether the Registrar’s certificate and garnishee order were valid.
Arbitration award — interest at specified rate — interpretation whether interest is simple or compound; Deputy Registrar’s certificate of interest; garnishee proceedings; effect of payment from security lodged pending appeal; acquiescence and estoppel to challenge interest calculations.
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26 February 1997 |
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Deputy Registrar’s compound-interest certificate set aside where arbitration award did not authorize compound interest.
Arbitration award – interest – whether interest at a stated rate implied compound interest; Deputy Registrar’s certificate – illegality where award not authorizing compound interest; garnishee proceedings – enforcement prevented where decretal amount satisfied by security; acquiescence by counsel insufficient to convert simple into compound interest.
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26 February 1997 |
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Failure to produce tender invoices and primary documents dismissed claim for unpaid transport services.
Contract/Tender – transport services – requirement to submit invoices as per tender terms – proof of services and quantum. Evidence – s.90 Evidence Act – where terms are reduced to document, parol evidence inadmissible; primary/secondary documentary evidence required. Burden of proof – plaintiff must prove services rendered and how claimed sum arose; failure to produce invoices fatal to claim. Admissibility – acknowledgements/correspondence insufficient absent primary invoices.
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24 February 1997 |
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Plaintiff’s claim for payment under a written tender failed for lack of the required documentary proof of services and quantum.
Contract/tender law – claim for transport services under a written tender – requirement to prove performance and quantum by documentary evidence. Evidence Act s.90 – where terms are reduced to writing, parol evidence is inadmissible to establish contractual terms or quantum. Burden of proof – plaintiff’s failure to produce invoices/primary documents defeats claim. Civil procedure – dismissal with costs where claimant fails to establish claim on balance of probabilities.
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24 February 1997 |
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Affidavit defects and improperly sealed annexures rendered the interlocutory Notice of Motion incompetent and it was struck out.
Civil procedure – interlocutory applications – s.190 Registration of Titles Act – locus standi of unregistered equitable owner – affidavits – Order 17 r.3(1) distinguishing personal knowledge and information/belief – duty to disclose sources – Commissioner for Oaths (Advocates) Rules – sealing and identification of annexures – defective affidavit renders Notice of Motion incompetent and liable to be struck out.
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20 February 1997 |
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Registered ownership alone does not establish possession for trespass; plaintiff failed to prove defendants liable.
Trespass to land – ownership versus possession – possession is required to sue for trespass; proof on balance of probabilities – identification of tortfeasors; vicarious liability – liability of committee for volunteers; assessment of special damages for excavated materials (valuation evidence).
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11 February 1997 |
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Lessee who elected to purchase reversionary interest but breached payment is estopped from claiming lease rights.
Property law – lease v. purchase – execution of sale of reversionary interest displaces lease; two estates cannot co-exist. Doctrine of election/estoppel by election – lessee who elects to treat third party as owner and enters purchase contract cannot later assert lease rights. Validity of sale by beneficiary – knowledge and dealings with beneficiary and administrators’ awareness can preclude challenge to locus. Relief against forfeiture – section 27 relief limited to non-payment of rent; not available to excuse breach of purchase contract.
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7 February 1997 |
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Lessee who elected to purchase the reversionary interest and breached payment is estopped from asserting the lease; forfeiture relief denied.
Property law – lease versus purchase of reversionary interest – incompatibility of co-existing estates. Election/estoppel – lessee electing to treat vendor as owner and entering sale is estopped from later asserting lease. Effect of part payment and deposit of title as security – supports purchaser relationship. Relief from forfeiture (Judicature Statute s.27) – inapplicable where dispute arises from breach of purchase contract, not mere non-payment of rent. Vendor locus and administrators’ awareness – administrators’ acquiescence and vendor’s dealing with lessee support validity of transaction.
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7 February 1997 |
| January 1997 |
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Fraudulent transfers via forged power of attorney voided; purchaser not bona fide and title restored to the plaintiff.
Property law – registration of title – forged power of attorney – fraudulent transfers; imputed notice and agent’s fraud; incomplete registration; stamp duty irregularities; purchaser not bona fide; cancellation of title and reinstatement of proprietor.
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1 January 1997 |