Results.
92 judgments found.
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| December 2012 |
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An association’s Saturday meetings do not violate the applicant’s conscience or equal protection absent positive coercive or discriminatory action.
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Constitutional law — Freedom of conscience (Article 19) — “Hindered” requires positive or threatened act; Discrimination (Article 23) — requires comparative evidence of different treatment by creed; Article 28 — locus for redress requires executive/administrative action in relation to complainant; Meetings on Saturdays — indirect inconvenience is insufficient absent coercion or sanction
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30 December 2012 |
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Petitioner failed to prove respondent’s behaviour rendered cohabitation unreasonable under MCA s.9(1)(b).
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Family Law — Divorce — Behaviour ground (s 9(1)(b)) — Whether respondent's conduct makes cohabitation unreasonable — Matrimonial Causes Act ss 8, 9
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13 December 2012 |
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Acquittal alone does not establish malicious prosecution; plaintiffs failed to prove lack of reasonable grounds or malice.
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Tort — Malicious prosecution — Elements: prosecution, favourable termination, absence of reasonable and probable cause, malice — Acquittal not conclusive — Pleadings bind parties; new claims cannot be raised at submissions
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13 December 2012 |
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A practitioner acting against a former client and contacting a represented party must withdraw for conflict of interest.
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Legal practitioners’ conduct — conflict of interest — rule 33(1)(f) and (g) — duty of confidentiality — prohibition on communicating with a represented person (rule 37(3)) — removal from record — pending judicial review not a defense
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13 December 2012 |
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Driver’s excessive speed and inadequate vehicle maintenance rendered the carrier vicariously liable; damages to be assessed, insurer credit acknowledged.
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Negligence — duty of carriers to maintain vehicles and inspect tyres — res ipsa loquitur where defendants give no explanation — inevitable accident defence — vicarious liability of carrier — insurer payment credited but does not bar further claim
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13 December 2012 |
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Court removed a caveat after the respondent failed to justify an interest; compensation claim dismissed for lack of evidence.
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Lands and Deeds Registry Act (ss.76, 81, 82) — Removal of caveat — Ex parte proceedings where caveator absent — Burden on caveator to disclose interest — Compensation for malicious caveator requires proof of lack of reasonable cause and damage.
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12 December 2012 |
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An employer validly summarily dismissed an employee for prolonged unexplained absence and recovered erroneously paid wages.
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Employment law — summary dismissal for absenteeism — collective agreement permitting dismissal in absentia — requirement to produce medical certificate for sick leave — recovery of wages and benefits erroneously paid
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3 December 2012 |
| November 2012 |
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Stay application dismissed because the claim is brought under the mortgage deed, which contains no arbitration clause.
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Arbitration Act s10 — stay of proceedings — arbitration clause in personal guarantee — mortgage deed and facility letter lack arbitration clause — primary (mortgage) v secondary (guarantee) securities — originating summons under Order 30 r.14
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27 November 2012 |
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Mareva injunction denied where debt proven but risk of asset dissipation not established.
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Mareva injunction — interlocutory freezing order — test: debt due and owing and real risk of dissipation — undertaking probative — foreign management/terminated contracts insufficient alone
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26 November 2012 |
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Court granted leave to commence committal proceedings for alleged contempt arising from false affidavit statements and allowed leave to appeal.
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Contempt of Court — committal for contempt — alleged false statements on affidavit — distinction between abuse of process and contempt — requirement of mens rea and proof beyond reasonable doubt — leave to issue committal proceedings granted
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24 November 2012 |
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Prosecution failed to prove causation and malice; court excluded dying declarations and acquitted the accused of murder.
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Criminal law — murder — elements: causation, unlawful act and malice aforethought — insufficiency of proof; Manslaughter — substitution of charge and requirement of causation; Evidence — res gestae/dying declarations: spontaneity and risk of concoction; Criminal Procedure — exercise of discretion to recall witnesses (s.149)
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19 November 2012 |
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Circumstantial evidence must exclude all reasonable alternative inferences before supporting a murder conviction.
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Criminal Law
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Circumstantial Evidence — Whether circumstantial evidence takes the case out of conjecture and permits only the inference of guilt
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Witnesses With Possible Interest — Approach to and danger of false implication from relatives' evidence
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Criminal Procedure — Medical Report Admissibility — Discretion to summon medical officer under Criminal Procedure Code s.191A
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19 November 2012 |
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Conviction of first accused based on recent possession and in-scene identification; second accused acquitted due to unfair identification parade.
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Criminal law — Identification evidence — single identifying witness; Identification parade fairness; Doctrine of recent possession; Real exhibits destroyed; Amendment of Information to fit evidence; Judicial notice limits
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19 November 2012 |
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Assault caused fatal bowel perforation and septicemic shock, but malice aforethought was not proved; accused convicted of manslaughter.
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Criminal Law
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Homicide — Causation where assault leads to death after medical treatment — Section 207(a) Penal Code
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Murder v Manslaughter — Malice aforethought and proof of knowledge or intent — Section 204(b) Penal Code
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Evidence — Expert Opinion — Weight and admissibility of medical (pathological) evidence; need for competing expert testimony
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19 November 2012 |
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First accused convicted of murder; provocation, self-defence and duress rejected; second accused acquitted for lack of common intention.
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Criminal law — Murder — provocation, self-defence and duress — limits and requirements; circumstantial evidence and leading police to incriminating items as proof of knowledge; common purpose — requirement of a shared intention
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19 November 2012 |
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Affidavits by counsel that fail Order 5 requirements are inadmissible; applicant failed to show grounds for review or third‑party indemnity.
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Civil procedure — Review under Order 39: fresh evidence test (materiality, discoverability, timing); Affidavits — counsel as deponent; hearsay and non‑compliance with Order 5 rules 16–18; Third‑party proceedings — indemnity and Order 16; Stay of execution pending third‑party proceedings
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12 November 2012 |
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Accused unfit to plead due to schizophrenia; court found murder proved and ordered detention during President's pleasure.
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Criminal law — fitness to plead — psychiatric report (schizophrenia) — trial while unfit — leading evidence — murder proved — transferred malice — special finding unavailable where unfit — detention during President's pleasure (s167 CPC)
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12 November 2012 |
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The accused convicted of murder; drunkenness did not negate intent but served as an extenuating circumstance.
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Criminal law — Murder — malice aforethought inferred from weapon and injuries; eyewitness identification corroborated by postmortem; voluntary intoxication not exculpatory but may mitigate; cultural belief in witchcraft considered an extenuating circumstance
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12 November 2012 |
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Accused convicted of joint murder for mob attacks; community belief in witchcraft treated as extenuating circumstance.
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Criminal law — Murder — elements (death, unlawfulness, malice aforethought, causation) — Identification and corroboration of interested witnesses — Joint liability for mob killings — Circumstantial evidence — Belief in witchcraft as extenuating circumstance
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11 November 2012 |
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Accused convicted of murder under common purpose; cultural belief in witchcraft deemed an extenuating circumstance.
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Criminal law — Murder: proof of elements (death, unlawfulness, malice aforethought, causation); identification by single witness; common purpose liability; cultural belief in witchcraft as mitigating circumstance; corroboration by postmortem
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11 November 2012 |
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Property purchased by respondent held to be a gift to the deceased; respondent must repay rents and pay costs.
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Succession and property law — Gift versus loan in land purchase — Validity of certificate of title — Allegation of fraud/forgery requires clear pleading and proof — Accounting for rents — Laches/sleeping on rights
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1 November 2012 |
| October 2012 |
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Joinder under Order 14 r 5 requires compliance with White Book practice; adding a plaintiff needs written consent, application dismissed.
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Civil procedure — Joinder of parties — Order 14 r 5 High Court Act — White Book (1999) applicable to fill procedural gaps — Order 15 r 6(4) requires written consent to add a plaintiff — intended joiners not yet parties and need not oppose joinder application
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24 October 2012 |
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Stay of execution of state land offer dismissed where relief equates to injunction and applicant failed to show good cause.
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State Proceedings Act — stay of execution under s.18 — injunctions against public officers prohibited in substance — discretionary remedy requiring good cause — failure to disclose material facts — adequacy of damages as alternative remedy
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22 October 2012 |
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Appeal dismissed: pleas of guilty were unequivocal and statutory ingredients were adequately put to the accused.
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Wildlife Act offences; guilty plea — equivocal plea; requirement to put all ingredients to unrepresented accused; "permit" and "licence" interchangeable; sections 76 and 100, Zambia Wildlife Act
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18 October 2012 |
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Unauthorized local authority offers do not merit specific performance; plaintiffs entitled to refund and referral to Commissioner of Lands.
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Land Law — Allocation of State Land — Local authority officers issuing offers without authority
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Contract/Equity — Specific Performance — Availability where subject matter is State land and performance impracticable
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Remedies — Damages and Recommendation to Competent Authority — Refund of payments and administrative referral
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16 October 2012 |
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Ex‑parte injunction discharged where former employee showed no proprietary interest or irreparable loss; damages adequate.
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Civil procedure — Interim injunctions — Discharge of ex‑parte injunction where plaintiff occupied employer’s house after employment termination — Requirement of irreparable injury and adequacy of damages — High Court Rules Order 3 Rule 2
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11 October 2012 |
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Court granted interim attachment of a foreign defendant's truck under Order 26 to prevent evasion of judgment.
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Interim attachment (Order 26) — prerequisite of intent to obstruct or delay execution and failure to furnish security — risk of foreign defendant evading satisfaction of judgment — attachment of vehicle pending final determination
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10 October 2012 |
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Bus driver found negligent; plaintiff's civil claim and direct third‑party insurer claim dismissed; defendants' counterclaim succeeds.
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Road traffic negligence — burden of proof in civil claims — credibility of independent eyewitness — doctrine of res ipsa loquitur — proof of special damages for loss of business — insurer’s indemnity contingent on established insured liability — criminal acquittal not determinative in civil proceedings
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10 October 2012 |
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Respondent companies' in-person appearances without leave and lack of consent on a land-title dispute rendered lower proceedings a nullity.
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Corporate representation — Body corporate must be represented by an advocate unless leave granted; Order 5 Rule 6; Subordinate Court Act s23 — consent required for land-title disputes; proceedings in subordinate court without leave or consent are nullities
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8 October 2012 |
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A fresh action after a dismissed, un‑restored suit is not multiplicity of actions or an abuse of process.
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Civil procedure — multiplicity of actions — fresh action after earlier suit struck off and dismissed — no multiplicity where earlier action ended and no decision on merits — abuse of process/forum shopping distinguished
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4 October 2012 |
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Single-child identification corroborated by medical report and witnesses upheld; medical report admissible without calling doctor.
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Criminal law — Defilement — Single identifying witness and elimination of mistaken identity; corroboration of child’s evidence by medical report and third-party witnesses; admissibility and sufficiency of medical report without calling doctor; alibi burden and investigation
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4 October 2012 |
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Interim injunction refused where plaintiff failed to show clear right or real prospect of success; offending affidavit paragraphs expunged.
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Civil procedure — Interlocutory injunctions — Requirement of clear right/real prospect and irreparable injury — Balance of convenience and preservation of status quo — Affidavits: expunction for contravening Order 5 Rule 15 — Internal governance disputes in voluntary associations
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3 October 2012 |
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Accused acquitted where prosecution failed to establish prima facie dangerous driving amid deficient accident investigation.
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Criminal law — No case to answer — Prima facie requirement; Road traffic — Causing death by dangerous driving — essential element of dangerous driving; Accident investigation — importance of ‘real’ evidence (skid marks, broken glass, punctured tyre, measurements); Expert evidence — vehicle examiner’s credentials and methodology; Special defence — tyre puncture/overloading and burden on prosecution to negative it
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2 October 2012 |
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Unconditional sale found; purchaser in market overt acquired good title and counterclaim for return or refund succeeded.
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Sale of Goods — conditional sale vs unconditional sale; passing of property on contract formation; nemo dat and market overt (s.22); waiver/variation by acceptance; remedy against original seller; contra proferentem
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2 October 2012 |
| September 2012 |
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Forfeiture of a third party’s vehicle set aside where no evidence showed owner’s involvement and owner was not convicted.
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Criminal law — Forfeiture of property — ZAWA Act s139 — Forfeiture against third-party owners — Requirement of evidence of involvement before forfeiture — Right to be heard
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30 September 2012 |
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Whether eyewitness identifications and recovered phone evidence sufficiently prove the accused’s guilt on multiple aggravated robbery and assault charges.
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Criminal law — Aggravated robbery and aggravated assault — Identity and reliability of eyewitness identification — Identification parade procedure — Corroboration by recovery of stolen phone/sim card — Burden of proof beyond reasonable doubt
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27 September 2012 |
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Court convicted two accused of murder by strangulation; third accused acquitted; detained witness corroborated by postmortem.
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Criminal law — Murder — Strangulation established by postmortem — Corroboration of detained eyewitness — Inference of malice aforethought — Suicide alternative rejected — Conviction with extenuating circumstances
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16 September 2012 |
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Court held landlord’s change-of-use notice void; tenants remain statutory tenants, repairs ordered and Standard Rent to be determined by a surveyor.
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Rent Act — statutory tenants — validity of termination notice during pending proceedings — change of use not a ground for possession — obligation to carry out repairs — suspension of rent increase pending repairs — determination of Standard Rent by registered valuation surveyor under statutory formula
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11 September 2012 |
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A police admission of careless driving can be admissible as negligence, but an insurer’s pleaded valuation may be only a traverse.
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Civil evidence — admissibility of police admission of guilt as admission of negligence; Insurance law — indemnity principle; Pleadings — distinction between traverse and admission; Judgment on admission — availability where unequivocal admission exists
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10 September 2012 |
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Court ordered valuation of sold matrimonial assets and the farm, awarding the respondent compensation and one-third of farm value.
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Matrimonial property — beneficial interest in assets acquired during marriage — valuation of properties sold prior to distribution — sham gifts to children — property adjustment powers under Matrimonial Causes Act (s.55) — appellate review of factual findings
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4 September 2012 |
| August 2012 |
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Interim injunction refused where plaintiffs lacked trading goodwill and damages were an adequate remedy; Registrar’s clearance not shown irregular.
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Company names — interim injunction — passing off — requirement of goodwill/reputation — adequacy of damages — Registrar’s discretion under s.37 Companies Act — equitable relief and clean hands
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26 August 2012 |
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Interim injunction to restrain enforcement of advertising ban refused where damages adequate and right to relief unclear.
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Interim injunctions — American Cyanamid principles — balance of convenience — adequacy of damages — advertising prohibition under Food and Drugs (Marketing of Breast Milk Substitutes) Regulations SI No.48 of 2006 — whether product is a "breast milk substitute" — judicial notice of impecuniosity — injunctions and State Proceedings Act s.16
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26 August 2012 |
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Res judicata barred the applicant’s challenge because identical issues were previously and finally decided, and the petitioner was in privity with the earlier plaintiff.
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Res judicata — finality of judgment — same cause or transaction — privity of parties — abuse of court process — judicial review limitations; non-disclosure/fraud allegations must be raised in original proceedings
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16 August 2012 |
| July 2012 |
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A carrier was liable in tort for negligent driving causing passenger injuries, fatalities, and assessed damages.
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Tort
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Road Traffic Accidents — Negligence by carrier (excessive speed, failure of lookout) — Duty to passengers and causation
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Damages — Pain and suffering, loss of expectation of life and special damages — Quantum assessment and exclusion of dependency award
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Statutory remedies — Claims under Law Reform (Miscellaneous Provisions) Act and Fatal Accidents Act for estates
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16 July 2012 |
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A consent order and payment bind the parties; a subsequent writ of fieri facias issued after settlement is irregular.
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Civil Procedure
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Enforcement of Judgment — Writ of Fieri Facias — Irregularity where judgment debt paid by consent order
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Consent Orders — Effect on Prior Judgment — Parties bound by clear, unambiguous consented settlement
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Professional Negligence/Tort — Advocate’s Computation — Alleged omission of entitlements is a matter for fresh action
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12 July 2012 |
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A statutory three‑month limit to apply to set aside an arbitral award is mandatory and cannot be extended by a registrar.
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Arbitration Act s17(3) — mandatory three‑month time limit to set aside award; jurisdiction to entertain applications — originating summons to a Judge; registrar’s powers; stay of execution — rule 20(2) automatic stay; rules/registrar cannot enlarge statutory time
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8 July 2012 |
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A company that has exited receivership, not the receiver, remains liable for contracts entered during its receivership.
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Companies Act s114; receivership; liability of receiver; agency; locus standi to sue; joinder/misjoinder of receiver; contracts entered during receivership
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3 July 2012 |
| June 2012 |
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Petitioner failed to prove corrupt or illegal practices; election upheld and respondent declared duly elected.
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Electoral Law
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Election Petitions — Allegations of bribery, intimidation and ferrying of voters — Proof and effect on election
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Standard of Proof — Election petitions require proof to a standard higher than the ordinary civil balance of probabilities — Electoral Act s93
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28 June 2012 |
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Whether a procurement award letter constituted a binding contract under the Public Procurement Act and whether specific performance was available.
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Public Procurement Act — formation of contract — whether letter of award constitutes binding contract — requirement for formal written contract — partial performance — specific performance inappropriate
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28 June 2012 |
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Written sale documents governed the transaction; plaintiff failed to prove misrepresentation or fraud and cannot upset registered title.
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Contract law — parole evidence rule — written contract and deed of assignment construed as sale; misrepresentation and fraud not proved; registered title protected under Lands and Deeds Registry Act absent proven fraud
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24 June 2012 |