Results.
96 judgments found.
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| December 2017 |
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A consent order consolidating actions and withdrawing pending interlocutory applications barred later pursuit of the abandoned claims by res judicata.
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Civil procedure — consolidation of actions — consent order withdrawing "all pending interlocutory applications" — effect of consolidation on substantive claims — consent withdrawal as abandonment — res judicata (Henderson v Henderson) — stare decisis and binding construction by higher court.
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18 December 2017 |
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Order 113 summary proceedings cannot resolve real boundary or title disputes; a full trial is required.
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Procedure — Order 113 RSC (summary possession) limited to non-contentious squatters' cases; boundary and title disputes require trial in open court; cancellation of certificate of title inappropriate in chambers; fresh evidence must be tested at trial.
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15 December 2017 |
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Appellant failed to prove slander; trial court’s credibility finding upheld and appeal dismissed.
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Defamation — Slander: elements (defamatory meaning, reference to plaintiff, publication to third party, proof of reputational injury); credibility and demeanour as basis for findings of fact; appellate restraint on overturning factual findings.
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8 December 2017 |
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Periodic monthly tenancy (not 29‑month fixed term); abandonment without notice constituted surrender, unilateral rent increase invalid.
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Landlord and Tenant — periodic (monthly) tenancy — 29 months relates to repayment of third‑party investment, not term — termination requires notice to quit or inferred surrender — unilateral rent increase invalid — tenant liable for six months' rent for abandonment; service charges, interest and costs awarded.
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5 December 2017 |
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A short delay and inability to obtain the transcript justified extension to file the record of appeal.
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Civil procedure — extension of time to take steps in an appeal — Order XIII r3 — length of delay and sufficiency of reasons — unavailability of transcript as ground — merits not considered where application only seeks to file record of appeal.
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4 December 2017 |
| November 2017 |
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Whether uniformed military personnel’s trespass and intimidation were within scope of employment, attracting vicarious liability.
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Vicarious liability — scope of employment — close connection test (Lister) — trespass and intimidation by uniformed military personnel — appellate interference with factual findings.
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29 November 2017 |
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29 November 2017 |
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Stay of taxation pending JCC investigation refused for lack of exceptional circumstances or demonstrated prejudice.
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Civil procedure — taxation — application to stay taxation pending Judicial Complaints Commission investigation — discretionary remedy requiring exceptional circumstances, demonstrable merit and irreparable harm; complaint against judge does not automatically warrant stay.
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28 November 2017 |
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An application to file a Notice of Appeal out of time must be made first to the court below before renewal in the Court of Appeal.
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Civil procedure — extension of time — application to file Notice of Appeal out of time — jurisdictional requirement to apply first in the court below before renewing in the Court of Appeal.
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28 November 2017 |
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Court granted a final seven‑day extension to file the record of appeal, finding delay not inordinate and no prejudice to respondents.
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Civil procedure — Appeal — Extension of time to file record of appeal — Order 13 Rule 3(3) Court of Appeal Rules — Inordinate delay — Prejudice to respondent — Exercise of judicial discretion.
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28 November 2017 |
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Court allowed final extension to file record of appeal, finding delay not inordinate nor prejudicial.
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Civil procedure — appeal — extension of time to file record of appeal — Order 13 Rule 3(3) Court of Appeal Rules — inordinate delay a question of fact — prejudice to respondent — dismissal for want of prosecution.
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28 November 2017 |
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Inordinate delay and alleged counsel incompetence do not justify extension of time to appeal or a stay of execution.
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Civil procedure — extension of time to appeal — discretionary relief: factors include reasons for delay, length of delay, applicant’s conduct and merits; counsel’s negligence not a sufficient ground; stay of execution.
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28 November 2017 |
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Delay of over a year and reliance on former counsel’s alleged incompetence failed to justify extension of time to appeal; stay discharged.
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Civil procedure — extension of time to appeal — discretion requires good cause — length and reasons for delay — incompetence of former counsel not a ground — stay of execution discharged — finality of litigation.
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28 November 2017 |
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Court granted leave to seek extension to file record of appeal out of time but warned against procedural laxity.
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Civil procedure — extension and enlargement of time — Order 13/3 CAR — leave to apply under subrule (3) where 60 and 21 day periods have elapsed — procedural laxity — discretion to grant relief.
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10 November 2017 |
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Specific performance ordered where vendor breached by refusing agreed road reserve; purchaser justified in withholding balance and title.
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Contract for sale of land — incorporation of sketch plan — agreed 20m road reserve — vendor’s survey omitted reserve — fundamental breach — purchaser’s lien over title deed — specific performance appropriate — rescission ineffective — time not of the essence.
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9 November 2017 |
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Where "pay" is undefined, it is interpreted to include salary plus allowances; long service gratuity and retirement benefits are distinct entitlements.
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Employment law — contractual interpretation — meaning of "pay" and "salary"; long service gratuity vs retirement benefits; calculation of terminal benefits; housing allowance continuation; unjust enrichment.
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9 November 2017 |
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Execution of a deputy registrar’s order does not bar a judge from rehearing the appeal and exercising fresh discretion.
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Civil procedure — Appeal from deputy registrar to judge — Rehearing and unfettered judicial discretion; execution of registrar’s order does not oust jurisdiction — Order XXX r 10 High Court Rules — No automatic stay of proceedings.
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6 November 2017 |
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A judge may rehear appeals from a deputy registrar despite execution of the registrar's order; execution does not oust jurisdiction.
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Civil procedure — Appeal from deputy registrar to judge — Rehearing with unfettered discretion — Execution of registrar's order pending appeal does not oust jurisdiction — Order XXX r 10 High Court Rules.
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6 November 2017 |
| October 2017 |
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Application to admit fresh evidence on appeal dismissed: evidence discoverable with diligence and would not have materially altered grant of specific performance.
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Civil procedure — fresh/further evidence on appeal — test: reasonable diligence, credibility, probable material effect (Ladd v Marshall principle) — public/accessible documents — land law — capacity to contract v capacity to own land — specific performance and enforceability dependent on conveyancing formalities and state/presidential consent.
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31 October 2017 |
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No mesne profits absent landlord–tenant relationship; purchaser awarded damages for delayed possession and unjust enrichment remedy for guest wing occupancy.
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Contract and remedies — specific performance and damages for delayed possession; mesne profits require landlord–tenant relationship; Statute of Frauds and written memorandum for land transactions; unjust enrichment for occupancy benefit; vendor liable for property transfer tax.
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31 October 2017 |
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Habeas corpus is inapplicable once detention ceases; appeal dismissed as academic and each party bears own costs.
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Habeas corpus — prerogative remedy to secure immediate release — inapplicable where detention has ceased; mootness of habeas claims after nolle prosequi; limits on using habeas corpus to pre-empt criminal proceedings.
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30 October 2017 |
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Interlocutory injunction refused where applicants were squatters, no serious question to be tried; appeal dismissed.
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Civil procedure — interlocutory injunctions; requirements: serious question to be tried, adequacy of damages, balance of convenience, clean hands — adverse possession/squatters; appellate limitation on facts not raised below.
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26 October 2017 |
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Court refused judgment on admission where illegible handwritten endorsement and lack of certified typewritten copy failed Rule requirements.
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Civil procedure — Judgment on admission — Admissibility of handwritten endorsements — Requirement under Order V Rule 19 for certified typewritten/printed copy — Court satisfaction as to genuineness of defendant's signature under Order XXI Rule 5 — Triable issues where defence alleges failure of consideration.
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26 October 2017 |
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Whether directors may be joined and held personally liable under Section 383 for company debts where fraudulent trading is alleged.
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Companies law — corporate personality — Salomon principle — piercing the corporate veil — Section 383 Companies Act — fraudulent trading — personal liability of directors — joinder in originating proceedings — creditor's remedy — multiplicity of actions
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13 October 2017 |
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A referred and exhibited agency agreement and an averment by necessary implication negated deemed admissions; judgment on admission was therefore improper.
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Civil procedure — judgment on admission — Order 53 r.6 and Order 18/13 — pleadings — incorporation of exhibited contract into defence — traverse by necessary implication — agency — scope of papers-only applications.
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13 October 2017 |
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Ill-health and prior trial bail did not amount to exceptional circumstances to grant bail pending appeal.
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Bail pending appeal — Court of Appeal Act s.18(1) — requirements: prima facie prospects of success, exceptional circumstances, or risk of serving substantial sentence — medical grounds evaluated — prior trial bail not determinative.
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12 October 2017 |
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Buyer entitled to reject unmerchantable goods; exclusion clause could not negate statutory implied terms and damages limited by duty to mitigate.
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Sale of Goods Act — implied condition as to merchantability and fitness for purpose — buyer entitled to reject unmerchantable goods; Exclusion clauses — narrow construction; inability to exclude statutory implied conditions unless expressly done; Consumer protection/unfair terms; Duty to mitigate — claimant must take reasonable steps to minimise loss; Appellate review — factual findings not to be disturbed unless perverse or unsupported by evidence.
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11 October 2017 |
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The appellant failed to show a clear right or irreparable harm, so an interim injunction was inappropriate.
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Interlocutory injunctions — requirement of clear right and irreparable harm — damages as adequate remedy — burden of proof in civil cases — evidential weight of documentary exhibits.
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5 October 2017 |
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Summary dismissals were wrongful and unfair for lack of charges and a hearing; damages beyond notice upheld, leave pay to be assessed.
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Employment law — wrongful and unfair dismissal — disciplinary procedure and audi — misapplication of disciplinary code clauses — damages beyond contractual notice for abrupt summary dismissal — entitlement to pay for days worked and accrued leave.
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5 October 2017 |
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Employee's participation in restructuring consultations and failure to object amounted to acquiescence; retrenchment and payment were lawful.
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Employment law — redundancy and retrenchment — variation of written contract by acquiescence — notice, consultation and opportunity to object — computation of redundancy benefits (use of s.26B formula).
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5 October 2017 |
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Amended s85(3) allows judicial discretion to admit late complaints where union and Labour Office engagement justifies delay.
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Industrial & Labour Relations Act s85(3) — interpretation post-2008 amendment; discretion to extend time; exhaustion of administrative channels; union and Labour Office engagement as sufficient reasons for delay; leave to file complaint out of time.
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2 October 2017 |
| September 2017 |
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Appeal dismissed: dismissal upheld where disciplinary procedure was followed, evidence supported misconduct, and appellant voluntarily absented himself.
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Employment law — Disciplinary procedure and dismissal — Sufficiency of evidence to support misconduct; Natural justice — audi alteram partem and hearings in absence; Appeal competence under Section 97 ILRA — points of law or mixed law and fact; Supervisory responsibility for departmental security; Distinction between wrongful and unfair dismissal.
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28 September 2017 |
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Registered title is conclusive absent specifically pleaded and proved fraud; a stranger to a settlement cannot acquire title by that settlement.
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Certificate of title — conclusiveness under Lands and Deeds Registry Act — privity of contract — receipt ambiguous as to purpose — requirement to plead and strictly prove fraud — findings of fact disturbed where at variance with evidence.
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28 September 2017 |
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Defective voire dire led to exclusion of child evidence, but the deceased’s wife’s credible testimony and corroboration sustained the murder conviction.
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Criminal law — Voir dire of child witnesses; admissibility and caution with juvenile evidence; suspect witnesses and requirement for corroboration; identification evidence and absence of fingerprint evidence; common design and malice aforethought in murder.
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27 September 2017 |
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Court may proceed in defendant's absence, but plaintiff must prove document authenticity; attorney-in-fact cannot attest to principal's unknown facts.
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Civil procedure — trial in defendant's absence (Order 35 r.3); Evidence — admissibility and proof of documents; Power of attorney — limits on attorney-in-fact giving evidence about principal's personal knowledge; Fraud/forgery — requirement for particular pleadings and proof; Burden of proof — plaintiff must prove debt on balance of probabilities.
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26 September 2017 |
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The Statement of Claim failed to disclose a cause of action and the appellant lacked locus standi; appeal dismissed.
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Pleadings — Cause of action — Requirement to plead facts giving rise to liability; Locus standi — intertwined with reasonable cause of action; Pleadings procedure — further and better particulars and striking out; Court’s power to dismiss on its own motion (Order 3/2 HCR).
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22 September 2017 |
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Court partly allows appeal, reduces respondent’s damages and orders recalculation accounting for tax and Workers Compensation deductions.
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Personal injury — assessment of damages — heads: pain and suffering, loss of amenities, permanent disability, loss of future/prospective earnings; unpleaded consequential heads; projection of future earnings (multiplicand and multiplier); inclusion of non‑earnings items; deduction for tax; effect of Workers Compensation payments.
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21 September 2017 |
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Employer lawfully terminated by contractual notice; courts may only probe motives where malice is shown.
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Employment law — termination by notice — exercising contractual notice clause — Industrial and Labour Relations Act s85(5) — when courts may 'pierce the veil' to inquire into motive — requirement of evidence of malice for probing terminations.
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19 September 2017 |
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Leave to appeal out of time and a stay of execution were refused for lack of prospects and insufficient evidence to set aside the writ.
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Civil procedure — Extension of time — Order XIII Rule 3 — Discretionary grant requires sufficient reason and prospect of success; Appeal — Leave to appeal out of time — court may preview merits; Stay of execution — dependent on successful extension of time; Mortgage foreclosure — writ of possession — absence of prima facie ground to set aside; Erroneous advice by former counsel not dispositive.
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15 September 2017 |
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Taxation of costs was premature pending conclusion of the appeal; 2017 costs order not retrospective; High Court certification rule inapplicable to Court of Appeal.
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Civil procedure — taxation of costs — interlocutory taxation; Costs — Legal Practitioners (Costs) Order — retrospective effect; Costs — certification for multiple counsel — application to High Court scales; Court of Appeal jurisdiction — Order XII Rule 1 and Order 62 RSC.
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15 September 2017 |
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Bank negligent for encashing crossed cheques to customer’s agent; not liable for a non‑apparent altered cheque; net recovery reduced to ZMW13,182.64.
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Banker–customer duty; crossed cheques paid contrary to crossing; negligence for paying third‑party cheques to customer’s agent; apparent alterations to cheques; effect of payment into court; proof and pleading of special damages (statutory penalties).
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14 September 2017 |
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Defective trial judgment and unresolved credibility on confession evidence warrant setting aside convictions and ordering retrial.
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Criminal procedure — Judgment writing — Section 169 Criminal Procedure Code — necessity for review of evidence, findings of fact, reasoning and application of law; Evidence — admissibility and weight of warn-and-caution/confession statements; Appeal — when retrial should be ordered where trial judgment is defective and credibility disputed.
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14 September 2017 |
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Whether a request to be "released of responsibilities and liabilities" constituted resignation requiring registry changes under the Companies Act.
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Company law — company limited by guarantee — construction of a letter requesting "release of responsibility and liability" as resignation — Sections 19(3)(b) and 210(1) Companies Act — extension of time to file register changes — appellate standard for disturbing factual findings.
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14 September 2017 |
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Defective trial judgment and reliance on confession evidence led to quashing of convictions and order for retrial.
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Criminal procedure — requirements of a judgment — Section 169(1) Criminal Procedure Code — necessity for review of evidence, findings of fact, credibility assessments and application of law.
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14 September 2017 |
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Employer not liable for vehicle tax; advances were loans; refund award set aside as unjust enrichment; some benefits upheld.
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Employment law — Self‑liquidating motor vehicle scheme; characterization of advances as loans; pleading and admissible evidence for repatriation and retention claims; PAYE overpayment and recovery; tax liability on duty‑free vehicle; unjust enrichment; restitutionary remedies; damages for loss of use.
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14 September 2017 |
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Employer’s statutory-board dismissal held influenced by ministerial statements; 24 months’ aggravated damages awarded, vehicle and loss-of-use claims succeed.
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Employment law — wrongful/constructive dismissal — piercing the contractual notice ‘veil’ to ascertain real motive — ministerial statements influencing statutory body’s decision; damages for traumatic and humiliating dismissal (Mpundu damages); entitlement to equal treatment regarding sale of personal-to-holder vehicle; proof required for allowances payable upon presentation of bills.
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13 September 2017 |
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Failure to explain the proviso before plea is curable if explained before witnesses are called and no prejudice results.
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Criminal procedure — Defilement charge — Proviso to s.138 Penal Code — Duty to explain proviso to unrepresented accused — Failure to explain before plea an irregularity curable if no prejudice — Explanation given before witnesses called cured irregularity.
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7 September 2017 |
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A discontinuance of proceedings vacates pending appeals, rendering procedural challenges moot.
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Civil procedure — Discontinuance of action — Effect of notice of discontinuance vacating pending appeal; procedural issues on affidavit jurat and placement of penal notice left undetermined.
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7 September 2017 |
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Whether the appellants were bound by post-judgment consent orders and entitled to assessment of dues under the original judgment.
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Civil procedure — post-judgment consent orders — binding effect only on parties and their duly authorised agents; Evidence — proof of payment requires proof of receipt by creditor or authorised agent; Assessment of post-judgment dues –Registrar to assess where claimants are not bound by consent orders and no proof of payment; Remittal to Registrar where documentary record is voluminous.
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7 September 2017 |
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Appellate court reduced sentence, finding charge duplicitous and sentencing misdirected by reliance on unconvicted multiple acts.
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Criminal law — Defilement — Duplicitous charge where multiple occasions alleged in a single count — separate acts constitute separate offences (Criminal Procedure Code s.135) — sentencing: age of victim borderline, breach of trust and pregnancy aggravating — sentencing must not reflect unconvicted acts.
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7 September 2017 |