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Citation
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Judgment date
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| December 1941 |
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Leave-pay credits are contingent liabilities not deductible; genuine salary payments to a director are deductible; disguised profit distributions are taxable.
Income tax – deductibility – leave pay credited to suspense account is a contingent liability, not an outgoing incurred – annual sums to shareholder-director may be salary and deductible – amounts described as directors’ fees but effectively profit distributions are not deductible.
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31 December 1941 |
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Religious ceremony plus cohabitation can prove marriage in divorce cases when documentary proof is unobtainable.
Proof of marriage — Jewish marriage ceremony and cohabitation — presumption of validity in civil divorce when documentary proof unavailable — stricter proof required in bigamy prosecutions — desertion where wife refuses husband's chosen matrimonial home.
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31 December 1941 |
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Mandamus granted where statutory valuation objections were late but refusal would cause substantial and irremediable injustice.
Mandamus — discretionary remedy where no other adequate remedy exists; Valuation procedure — statutory requirement of six clear days' written notice under Cap. 26 s.26F; Magistrate's discretion to refuse late objections; No review under Subordinate Courts rules when acting as valuation court; Equitable grant of mandamus subject to conditions and costs.
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31 December 1941 |
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A solicitor in person recovers ordinary party-and-party costs but cannot charge for self-instruction or unnecessary items.
Solicitor appearing in person — recovery of party-and-party costs — disallowance of charges for self-instruction and unnecessary items — taxation of costs — allowance of mileage service fee — appeal costs.
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31 December 1941 |
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Wilful default to pay tax for multiple years under s.14(1)(a) constitutes a single offence, permitting only one count.
Native Tax Ordinance s.14(1)(a) – wilful default to pay "any tax" – unpaid tax for multiple years constitutes a single offence – only one count permissible; subsequent defaults after conviction are new offences.
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31 December 1941 |
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Section 287 applies only where a person in public (street/road) loiters or acts suspiciously with suspected stolen property.
Penal Code s.287 — possession or conveying of property reasonably suspected to be stolen — limited application where person is in street/road or loitering — requirement of suspicious appearance/actions attracting attention — "having" ejusdem generis with "conveying" — proper form of charge; accused's explanation not part of charge.
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31 December 1941 |
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Court affirmed prima facie proof for juvenile theft, held animus furandi at time of conversion, and substituted corporal punishment with conditional discharge.
Juvenile offenders — capacity of child under 12 to know wrongfulness (s.15 Penal Code) — prima facie proof from recent possession and implausible explanation — animus furandi assessed at time of conversion under local Penal Code — Juvenile Court sittings procedure — lawfulness of corporal punishment on juveniles — sentencing discretion and child’s best interests.
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31 December 1941 |
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A dangerous driving conviction was quashed because the statute protects highway users, not passengers inside the vehicle.
Motor traffic — Dangerous driving — Statutory construction — Provision protects persons using the highway (public), not vehicle occupants — Troughton v. Manning (1905) binding precedent — Conviction quashed
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31 December 1941 |
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Conviction under the townships noise regulation cannot stand where only an on‑duty policeman, not an annoyed private person, is relied upon.
Townships Regulations s.4(9) – making noise to the disturbance of a person – requirement that an annoyed person be shown – on‑duty policeman not ordinarily the protected "person" – insufficient evidence vitiates conviction.
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31 December 1941 |
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Section 72 may be invoked for s64 complaints; proceedings under s64 are criminal in form.
Employment of Natives Ordinance ss64, 72 – Application of s72 where specific penal sections repealed – Magistrate’s power to rescind contract and impose fines – Proceedings under s64 are criminal in form.
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31 December 1941 |
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The respondent's failure to take his wife to hospital did not amount to failing to supply "necessaries of life" under section 209.
Criminal law – Penal Code s.209 – "necessaries of life" limited to items such as food, water and clothes – failure to obtain medical treatment not within s.209; Penal Code s.214 – omission of duty causing harm may apply where accused knew medical assistance available; Criminal Procedure Code s.168(2) – conviction cannot be altered to a substantially different offence.
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31 December 1941 |
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The Crown can be a complainant and be ordered to pay compensation for frivolous or vexatious prosecutions under section 162.
Criminal procedure — s.162 compensation for frivolous or vexatious charges — Crown as complainant — distinction between costs and compensation — s.160 costs immunity — prosecutorial direction and vexatious prosecution.
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31 December 1941 |
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Section 158(4) requires both suspicious character and suspicious conduct; mere presence in hospital beds does not satisfy the subsection.
Penal Code s.158(4) – Rogue and vagabond – offence requires both 'suspicious character' and 'suspicious manner' – provision contemplates 'wandering' near premises; mere presence in hospital wards not covered.
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31 December 1941 |
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Conviction on circumstantial evidence quashed where proved facts did not exclude all reasonable inferences of innocence.
Criminal law – Circumstantial evidence – Sufficiency – Inference must be consistent with all proved facts and must exclude every other reasonable inference; conviction quashed where only suspicion established.
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31 December 1941 |
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Error in contravening an absolute statutory price prohibition is no defence, but may mitigate sentence.
Statutory offences – absolute prohibition – absence of mens rea no defence; strict liability for price-control breaches; mistake mitigates sentence only.
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31 December 1941 |
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A Governor's general order to continue work is not void for vagueness, but mere absence is insufficient—intention not to continue must be proven.
Emergency Powers (Defence) Regulations — Validity of Governor's Order — Order need not specify reasons or duration — Court may inquire into intra vires nature of Orders; Criminal law — Disobedience to Order to continue work — Mere absence insufficient proof of failure to continue work — Proof of intention or conduct required; Evidence — Necessity to prove fitness for duty and contractual terms when alleging breach of an order to continue work; Procedural fairness — No evidence that presiding Magistrate procured the Order.
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31 December 1941 |
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After a guilty plea, magistrates must secure the accused's agreement to the facts before sentencing; licence suspension requires an offence connected with driving.
Criminal procedure — plea of guilty — prosecution outline and accused's agreement — magistrate to be satisfied before sentence; Criminal Procedure Code s.273 — evidence after conviction for sentencing; Roads/vehicle regulations — construction/user offence — whether an "offence in connection with the driving of a motor car" permitting suspension of driving certificate.
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31 December 1941 |
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Court allowed immediate decree absolute where co-respondent's military service made future marriage impossible.
Divorce — shortening interval between decree nisi and decree absolute — wartime conditions and active military service — public policy — bona fides inquiries not required where irrelevant.
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31 December 1941 |
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Adultery proved but divorce dismissed—husband’s domicil remained Scotland; no domicil of choice in Northern Rhodesia.
Divorce — adultery proven; no connivance or condonation — domicile — change from domicil of origin to domicil of choice requires clear animus and factum; residence for employment insufficient; lack of jurisdiction.
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31 December 1941 |
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An accused cannot be convicted on witnesses called by the court after the defence closed unless the evidence arose ex improviso.
Criminal procedure – Court calling witnesses of its own motion under section 139 – Power limited to ex improviso evidence arising during trial – Conviction unsustainable where additional witnesses were procured after adjournment/investigation.
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31 December 1941 |
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A case stated must comply with section 320 and Form 20 of the Criminal Procedure Code; remitted for restatement.
Criminal procedure – Case stated – Form and procedure governed by section 320 and Form 20, Fourth Schedule, Criminal Procedure Code – Case remitted for restatement – Parties may draft proposed case for magistrate’s adoption.
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31 December 1941 |