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Citation
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Judgment date
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| December 2018 |
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Stay of execution refused where the lower court's ruling merely set aside a judgment and conferred no executable remedy.
Civil procedure – stay of execution pending appeal – discretionary remedy – only executable judgments/rulings can be stayed – setting aside default judgment not an executable order – considerations: prospects of success and irreparable harm.
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23 December 2018 |
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Re-entry without proven service and despite material developments is unjustified; compensation must include land and improvements.
Lands law – re-entry under lease – requirement for notice and proof of service; development threshold for re-entry; compensation — market value of land and improvements; bona fide purchaser and notice.
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21 December 2018 |
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Contract terms permitting seizure and sale of pledged collateral on default precluded damages for alleged illegal sale absent timely review.
Contract law – enforcement of written loan agreements – collateral seizure and disposal on default; Civil procedure – interlocutory rulings and review (Order 39 High Court Rules) – functus officio and timely review applications; Remedies – availability of damages for sale of pledged asset where borrower defaulted.
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21 December 2018 |
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Failure to erect warning signs for roadworks constituted negligence; unpleaded contributory negligence could not be inferred and appeal dismissed.
Negligence — duty to warn road users of works — failure to erect warning signs; credibility of witnesses and appellate review; contributory negligence unpleaded and no expert evidence on speed; admissibility/weight of police report in civil proceedings.
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21 December 2018 |
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Appellate court set aside resulting trust for lack of proof, upheld sale and ordered conditional specific performance.
Land law – Certificate of title – Resulting trust – Presumption arising from payment of purchase money – Need for clear, cogent evidence to establish payment – Specific performance for sale of land – Caveat – Pleading requirements for professional conduct allegations.
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14 December 2018 |
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Represented accused’s denial negates prejudice from non‑explanation of section 138 proviso; medical evidence and opportunity corroborated conviction.
Criminal law – Defilement – Section 138 proviso – obligation to explain to accused; represented accused – no prejudice where defence is outright denial – Corroboration in sexual offences – medical evidence and opportunity/relationship may corroborate commission and identity.
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14 December 2018 |
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Court upheld stay and mandamus compelling formation of tribunal so statutory appeal rights could be vindicated.
Administrative law – judicial review and mandamus – compelling appointment of members of statutory tribunal – interim relief/stay in aid of mandamus under Order 53(10)(b) – wrong mode of commencement principle distinguished – statutory appeal to tribunal – affected parties and joinder.
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14 December 2018 |
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Deputy Registrar’s failure to consider the appellant’s opposing affidavit rendered the assessment unfair; rehearing ordered de novo.
Civil procedure – assessment of damages – duty to consider opposing affidavit – hearing on the merits – judgment not on merits liable to be set aside – de novo rehearing – costs in the cause.
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5 December 2018 |
| November 2018 |
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Constructive dismissal requires resignation or notice; appellant awarded salary arrears for working-leave period but not damages or other allowances.
Employment law – constructive dismissal – employee must resign or give notice to claim constructive dismissal; transfer and working-leave disputes; entitlement to salary arrears while on working leave; proof required for contractual allowances and damages; limitation defence must be pleaded or is waived.
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29 November 2018 |
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A party likely to be affected by reissued exploration rights ought to be joined under Order 14/5(1) HCR.
Procedure — Joinder of parties — Order 14/5(1) HCR and Order 15/4(1) RSC — person entitled to or claiming interest in the subject matter or likely to be affected — ministerial cancellation and reissuance of petroleum exploration licence — discretion to join aimed at effective adjudication — distinction from Abel Mulenga.
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28 November 2018 |
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Whether a registered debenture secured a later US$ facility and whether restructuring and charges after default were lawful.
Contract and security — Mortgage debenture as continuing security for future disbursements; discharge by third-party payment limited to specific title; restructuring of loan/lease agreements after default; entitlement to finance and rental charges on restructured accounts; liability for rentals on damaged assets absent insurer proof; appellate standard — balance of probabilities and deference to trial judge's factual findings.
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26 November 2018 |
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Circumstantial evidence and post-mortem findings established guilt; appeal against conviction and sentence dismissed.
Criminal law – circumstantial evidence – sufficiency to exclude reasonable doubt; post-mortem evidence and failure to call pathologist; inference of guilt from concealment and bound body.
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22 November 2018 |
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A conditional statutory appointment subject to ministerial approval does not create a binding contract until approval is given.
Statutory condition precedent — ministerial approval for appointments; conditional appointments and contract formation; rescission of conditional appointment; estoppel by representation not available where statutory approval required; administrative duty of appointing board to present single nominee.
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22 November 2018 |
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The respondent’s post-trial mineral licence was excluded as irrelevant to the appeal on injunction and full disclosure.
Civil procedure – Admission of new evidence on appeal – Section 24(1)(b)(i) Court of Appeal Act – Test: obtainability with diligence, credibility, material influence (Zambia Revenue Authority v Hi-tech) – Post-trial mineral licence held irrelevant to appeal on injunction and disclosure – Injunctive relief against statutory planning authority.
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21 November 2018 |
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Force used after the theft to flee did not satisfy aggravated robbery; convictions substituted to assault and burglary.
Criminal law – Aggravated robbery – contemporaneity and purpose of force – force used to flee not to obtain/retain – substitution under s.181(2) Criminal Procedure Code to assault occasioning actual bodily harm and burglary.
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20 November 2018 |
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A brutal murder despite failed provocation can justify life imprisonment despite the appellant being a first offender.
Criminal law – Murder with extenuating circumstances – Failed provocation – Sentencing principles – Life imprisonment – Aggravating brutality – Causation: stab wounds to septicemia.
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20 November 2018 |
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Circumstantial evidence found sufficiently cogent to uphold murder conviction; infanticide and procedural complaints failed.
Criminal law – Circumstantial evidence – Sufficiency and cogency of cumulative strands; Murder (s.204) vs. Infanticide (s.203); voluntariness of confession and police investigative omissions.
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20 November 2018 |
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Whether the trial court exercised its discretion judicially under section 129 in refusing forfeiture of the appellant's vehicle.
Environmental Management Act s129(1) – Forfeiture of vehicles used in offences – Scope and limits of judicial discretion; requirement to give reasons; appellate review for capricious exercise of discretion; Penal Code s28(d) – limits on default custodial terms.
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20 November 2018 |
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Earlier explanation of the statutory proviso sufficed; conviction upheld on overwhelming evidence.
Criminal law — Defilement (s138(1) Penal Code) — Proviso (reasonable belief as to age) — Requirement to explain proviso — Confession and medical corroboration — Adequacy of trial judgment (s169 Criminal Procedure Code).
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20 November 2018 |
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Appeal against murder conviction dismissed; provocation defence not established and asserted condom‑claim was an afterthought.
Criminal law — Murder — Defence of provocation — Elements required under Sections 205 and 206 Penal Code — provocative act, loss of self‑control, proportionality — reasonable person test — afterthought defence inadmissible.
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20 November 2018 |
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Whether correspondence or conduct can restart the six-year limitation period or estop a defendant from pleading time-bar.
'Limitation of Actions' – six-year period under section 2(1)(a); 'Fresh accrual' – sections 23 and 24 require a clear written acknowledgement or part payment; 'Without prejudice' correspondence inadmissible as acknowledgement; 'Negotiations' do not stop limitation; 'Acquiescence/Estoppel' requires clear conduct inducing delay.
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1 November 2018 |
| October 2018 |
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Belief in witchcraft and intoxication do not automatically mitigate murder to avoid the death penalty.
Criminal law – Murder – Sentencing – Extenuating circumstances – Belief in witchcraft – Drunkenness – Supreme Court’s refinement in ABEDINEGO KAPESHI – Mandatory death penalty upheld where no mitigating impairment or genuine belief motive established.
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20 October 2018 |
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Conviction upheld where single witness reliably identified appellants; identification parade fair and alibi rejected as afterthought.
Criminal law – Aggravated robbery – Conviction on single identifying witness – Reliability of identification (opportunity, lighting, duration) – Fairness of identification parade and pre‑exposure – Alibi raised late and uncorroborated – Appeal dismissed.
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15 October 2018 |
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Application to vary dismissal for late service of appeal denied; consolidation application does not cure procedural default.
Civil procedure — Court of Appeal Rules — service of notice and memorandum of appeal within prescribed time — Order 10 Rule 3(9) — consolidation application does not stop time running — Article 118(2) Constitution not a licence to disregard procedural rules — sanction for non-compliance.
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11 October 2018 |
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Non-compliance with service rule not automatically fatal; court may exercise discretion or deem waiver to cure default.
Civil procedure – Court of Appeal Rules Order 10/3(9) – service of notice of appeal and memorandum within 14 days – mandatory wording not necessarily fatal – relief and discretion under Order 13/3 – power to direct service under Order 10/9(12) – waiver by filing response – prejudice assessment.
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4 October 2018 |
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Building on another's land due to a mistaken allocation does not create title; a sitting tenant who purchased during privatization was a bona fide purchaser.
/ Property law – Construction on another's land – Mistaken allocation by a third party does not confer title; / Bona fide purchaser for value – Sitting tenant offered sale during privatization entitled to purchase absent notice; / Formalities and privatization – Asset transfer to privatization agency controls alienation; / Equitable relief/compensation – Building at own risk; compensation against government may be ex gratia.
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4 October 2018 |
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Assessment awards set aside where Deputy Registrar made unexplained, unsupported awards without oral evidence.
Damages assessment — Law Reform (Miscellaneous) Provisions Act — loss of expectation of life — funeral expenses — non-pecuniary damages (stress/anguish) — necessity of oral evidence at assessment — requirement for reasons and evidential basis for awards — appellate interference where assessment unsupported.
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4 October 2018 |
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An extension of time was refused where the applicant failed to produce sufficient documentary evidence justifying the delay.
Civil procedure – Extension of time – Order XIII Rule 3(1) – Exercise of judicial discretion – Need for sufficient and convincing reasons supported by documentary evidence (board resolution/minutes) – Short delay insufficient to cure lack of material.
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3 October 2018 |
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Whether seized properties belonged to the appellant and whether the claimant discharged the burden of proof.
Civil procedure – execution of judgment – writ of possession – claimant’s burden to prove title or right to possession at time of seizure – distinction between municipal house numbers and Ministry of Lands plot numbers – equity of redemption vs. assignee of debt and security – third-party ownership claims.
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3 October 2018 |
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Claimant failed to prove ownership of one seized house but held sufficient equitable interest in another, warranting its release.
Civil procedure – execution and writs of possession – burden of proof on claimant to show title or right to possession at time of seizure; distinction between street/house numbers and Ministry of Lands plot/stand numbers; mortgage, assignment of debt/security and equity of redemption – assignment of debt/security not equivalent to transfer of property.
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3 October 2018 |
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3 October 2018 |
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Operations manager lacked authority to amend contract; BIT allowance offsets deductions (applies to empties); re‑computation and assessment ordered.
Contract law — agency and apparent authority — ratification; Contract interpretation — BIT (Missing and Breakage in Transit) allowance — contextual/commercial construction; whether allowance is monetary or an offset; application to fulls and empties; waiver and withdrawal of waiver; assessment of disputed deductions and advances; costs awarded to successful appellant.
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3 October 2018 |
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A defective consolidated record of appeal is curable; dismissal is discretionary and depends on the defects' seriousness.
Court of Appeal rules – record of appeal – Order 10/9 mandatory contents – Order 10/17(1)-(2) discretion to amend or dismiss – consolidated appeals – curable versus fatal defects – supplementary record of appeal.
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3 October 2018 |
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Respondent's pension to be recalculated from actual retirement date; government-debt deduction upheld; quantum referred for assessment.
Pensions law – effective date of retirement – calculation of pension benefits using last drawn salary (section 40(1)) – government debt deduction under section 22(2)(b) – referral to Deputy Registrar for assessment.
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3 October 2018 |
| September 2018 |
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Appeal dismissed: confessions to a lay witness were voluntary and recovered exhibits plus phone-tracing sufficiently proved the offences.
Criminal law — admissibility and voluntariness of confessions — person in authority; Identification and circumstantial evidence — tracing of stolen property and recovery of exhibits as proof of guilt; sufficiency of evidence for rape, attempted rape and aggravated robbery.
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27 September 2018 |
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Circumstantial facts (vehicle possession, abandoned car and keys, failure to report) were sufficiently cogent to uphold conviction.
Criminal law – Circumstantial evidence – Cogency required to exclude conjecture – Possession and unexplained failure to report vehicle found abandoned near crime scene as basis for inference of participation.
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25 September 2018 |
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An undefended matrimonial petition still requires oral evidence; trial court erred dispensing with trial and making findings.
Matrimonial law – Proof of petition – Rule 37 requires oral evidence in open court – Undefended petition does not dispense with petitioner's duty to prove allegations – Trial judge erred in dispensing with trial and entering findings without evidence – Appeal allowed and matter remitted for trial.
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21 September 2018 |
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A single judge may validly sit in the Industrial Relations Division; employers must give reasons for dismissals and 12‑month damages upheld.
Industrial Relations Division — court composition after constitutional amendment — Article 135 permits single judge; Industrial Relations Court Rules (SI 206 of 1974) remain applicable — Employment Act s36(1)(c)(i) & s36(3) — employer must give valid reasons for dismissal; notice clauses cannot avoid statutory duty — wrongful dismissal damages; measure and appellate restraint.
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17 September 2018 |
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Appeal dismissed: no special circumstances for security for costs; advocates found to have valid retainer and affidavit proper for factual findings.
Civil procedure — Security for costs — Discretion and ‘special circumstances’ — Affidavit relied on for discretionary factual findings — Right to be heard — Legal Practitioners Act s.52 — Retainer and instructions to counsel.
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6 September 2018 |
| August 2018 |
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Whether the employer's disciplinary code applied and whether dismissals for protesting bonus withdrawal were lawful.
Employment law — disciplinary code authentication — unfair dismissal — substitution of charges — 13th cheque as contractual entitlement — group company proceedings — exhaustion of remedies — s101(2) ILRA inapplicable
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23 August 2018 |
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The appellant's failed defences did not establish reasonable doubt or constitute extenuating circumstances.
Criminal law – murder – circumstantial evidence; defences – evidential burden to raise defences vs prosecution’s burden to negative them; intoxication; self-defence; provocation; accident; forensic evidence; sentencing – extenuating circumstances.
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23 August 2018 |
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Recognition-based identification and joint enterprise upheld; murder conviction affirmed and aggravated robbery sentence increased to life imprisonment.
Criminal law – Identification by recognition – honest mistake – opportunity and lighting; Joint enterprise – section 21(1) Penal Code – principals/accessories; Murder – malice aforethought – section 204(b) – use of offensive weapons; Aggravated robbery – sentence increased to life imprisonment with hard labour.
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22 August 2018 |
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Expired tenancies, arrears and lack of capacity meant no clear right or equitable basis for interlocutory injunction; appeal dismissed.
Interlocutory injunctions — American Cyanamid test — requirement of serious question to be tried and clear right to relief — expiry of tenancy agreements; tenancy at will — alleged renewal by conduct — clean hands (rental arrears) — capacity to give undertaking — sale in liquidation and transfer of beneficial interest.
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22 August 2018 |
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Recognition identification and joint enterprise proved appellants guilty; aggravated robbery sentence increased to life, murder conviction and death sentence upheld.
Criminal law – Identification by recognition at night – Need to exclude honest mistake – Joint enterprise and liability under section 21(1) – Malice aforethought under section 204 – Sentence substitution for aggravated robbery; death sentence maintained.
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22 August 2018 |
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Summary dismissal without a hearing was wrongful; statute obliges employer to repatriate foreign employees despite contractual exclusion.
Employment law – unfair dismissal – breach of natural justice (audi alteram partem) – court may probe mala fides; Immigration Act s28(8) – employer's repatriation obligation overrides contrary contractual clause; mitigation of damages; correction of accrued leave entitlement.
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22 August 2018 |
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Terminal gratuity must include the services allowance as last paid (tax gross-up); successful retiree awarded costs.
Employment law – terminal benefits – services allowance – grossing-up for tax – interpretation of conditions of service and HR memorandum; computation of gratuity; costs follow the event – discretion and "no order as to costs".
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22 August 2018 |
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Insufficient evidence of a firearm (no recovery or ammunition) precluded conviction under section 294(2); substituted convictions under section 294(1).
Criminal law – Aggravated robbery – Firearm element – Proof required under Firearms Act – recovery of firearm, cartridges or strong circumstantial/forensic evidence; recent possession of stolen property as evidence of guilty knowledge.
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21 August 2018 |
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Whether omission to explain a later-enacted proviso or recall witnesses after amending the offence date vitiated a corroborated defilement conviction.
Criminal law – Defilement (s138 Penal Code) – Proviso retrospectivity – Charge amendment and variance as to date (s213(2) Criminal Procedure Code) – Recall of witnesses – Corroboration of prosecutrix by medical report and caution statement – Submissions not evidence – Irrelevance of testing accused for victim's STI.
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21 August 2018 |
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Dismissal was wrongful for breach of natural justice; statute mandates reasonable repatriation despite contractual exclusion.
Employment law – wrongful and summary dismissal; natural justice (audi alteram partem) – requirement to afford hearing; court's power to examine substratum of facts/mala fides; Immigration and Deportation Act s28(8) – employer's repatriation obligation overrides contractual exclusion; mitigation of damages; computation of accrued leave.
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21 August 2018 |
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A registered certificate of title is conclusive evidence of ownership unless fraud, misdescription, or prior interest is proved; appeal dismissed.
Lands and Deeds Registry Act s33 — registered certificate of title conclusive evidence of ownership; requirements to rebut title (fraud, misdescription, prior interest). Survey law — re‑planning/re‑alignment where newly created lot overlaps earlier surveyed lot. Appellate review — interference with trial findings of fact only where findings are perverse or unsupported. Civil procedure — written submissions are advisory and not binding on the court.
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17 August 2018 |