|
Citation
|
Judgment date
|
| June 2001 |
|
|
Direct High Court bail application was incompetent; proper remedy is habeas corpus, but conditional release was granted.
Constitutional right to be brought before court within 48 hours — habeas corpus as remedy — competence of direct High Court bail application — section 118 CP&EC inapplicable — discretionary conditional release despite procedural defects.
|
26 June 2001 |
|
|
15 June 2001 |
|
Driver’s negligence established; employer vicariously liable; insurer cannot rely on a policy exclusion it failed to produce.
Negligence — driver’s over‑speeding and failure to give way; vicarious liability of employer; third‑party motor insurance; insurer’s burden to produce the actual policy to rely on exclusion clauses; res ipsa loquitur; damages for traumatic amputation.
|
14 June 2001 |
|
Conviction for theft by guarding officer upheld; sentence reduced to three years and order on terminal benefits quashed.
Criminal law – Theft from motor vehicle – Sufficiency of evidence to convict guarding officer; Sentencing – excessiveness and mitigation for first offender; Ancillary orders – limits on court ordering payment of terminal benefits governed by service conditions.
|
14 June 2001 |
|
Court set aside consolidated judicial review hearing for inadequate service and fraudulent combined affidavit of service.
Judicial review – service of Notice of Motion – Order 53 r.5(4) (10 clear days) – consolidation of causes – false/combined affidavit of service – procedural irregularity – setting aside hearing under Order 2 r.1(2).
|
10 June 2001 |
|
A creditor may present a winding-up petition after a 21‑day demand; the applicant’s injunction was refused.
Companies Act s213(3) — statutory 21‑day demand and inability to pay; winding‑up petitions — creditor’s entitlement where debt is undisputed; interlocutory injunctions restraining presentation of winding‑up petitions; procedure — originating motion in open court required (not originating summons in chambers).
|
8 June 2001 |
|
Conviction for theft by a public servant upheld; sentence affirmed but warrant corrected to commence from arrest.
Criminal law – Theft by public servant – Conversion of overpaid salaries – Liability where employee fails to account – Appeal and summary dismissal under Section 351 – Sentencing; warrant of commitment; commencement date.
|
7 June 2001 |
|
Convictions confirmed; second defendant's burglary sentence affirmed, first defendant's burglary sentence increased to 14 years for prior dishonesty and deterrence.
Criminal law – Burglary – sentencing principles: six-year starting point – aggravating factors (previous conviction) justify enhancement – guilty plea and no prior record mitigate – confirmation of magistrate convictions and variation of sentence.
|
7 June 2001 |
|
Conviction confirmed; sentence increased to four years for planned breaking into a building and lack of mitigation.
Criminal law – Breaking into a building and committing a felony – Sentence – High Court starting point four years – confirmation of conviction – enhancement of sentence where offence planned and no serious mitigating factors.
|
7 June 2001 |
| May 2001 |
|
|
Unattested bill of sale void; defendant liable for conversion and trespass and ordered to pay K135,000 damages with costs.
Bills of Sale Act s.7 — unregistered bill of sale void; conversion and trespass for seizure and sale of chattels; measure of damages for conversion = value at date of conversion; courts may estimate value where evidence is deficient; insufficient proof of loss of profits treated as general damages.
|
28 May 2001 |
|
Employer breached statutory and common-law duties by failing to provide insulating gloves and safe work measures, causing severe injury and amputation.
Labour/employer’s duty of care – Factories (Electricity) Regulations s.28 – failure to provide insulating gloves – breach of duty and causation – defence under Factories Act s.71(2) rejected – damages for amputation and loss of earning capacity.
|
28 May 2001 |
|
Whether applications for judgment on admission are interlocutory and when correspondence amounts to an unequivocal admission.
Civil procedure – Judgment on admission – Whether interlocutory or final – Admissibility of statements of information and belief in affidavits (Order 41 r 5) – Requirement to disclose sources and grounds – Admissions in correspondence – Discretion to grant judgment on admission.
|
28 May 2001 |
|
Labour disputes under the Employment Act must be commenced in the Industrial Relations Court absent exceptional circumstances.
:[
|
18 May 2001 |
|
Labour disputes under the Employment Act must be brought to the Industrial Relations Court; High Court declines jurisdiction absent exceptional circumstances.
Employment law – Jurisdiction – Industrial Relations Court has original jurisdiction over Employment Act claims – High Court’s unlimited jurisdiction but should decline where subordinate court is competent – choice of forum affects admissibility of hearsay and recovery of costs – exceptional circumstances required for High Court to intervene.
|
17 May 2001 |
|
Labour disputes under the Employment Act belong in the Industrial Relations Court; High Court declines original jurisdiction absent exceptional circumstances.
Labour law – forum non conveniens within domestic structure – Industrial Relations Court’s exclusive original jurisdiction under the Employment Act; High Court’s unlimited jurisdiction to be deferred absent exceptional circumstances; evidentiary differences (hearsay admissibility) and costs implications.
|
17 May 2001 |
|
Applicant's challenge to an arbitration award for wanting extra damages was dismissed for lack of misconduct and procedural basis.
Arbitration Act s.3 – arbitrators' authority and umpire appointment; no appeal from arbitrators' award; s.24(2) challenge; desire to reform award insufficient; no misconduct found.
|
14 May 2001 |
|
Petition dismissed for failure to prove service of the Bankruptcy Notice, so the alleged act of bankruptcy remained unproven.
Bankruptcy — service of Bankruptcy Notice — proof by affidavit required — act of bankruptcy under s3(1)(g) depends on service date — substituted service/advertisement does not suffice without affidavit — petition dismissed under s7(3).
|
13 May 2001 |
|
Court stayed action 90 days where former director lost authority to instruct counsel and died; counsel lacked company mandate.
Company law – authority of director to instruct counsel – change of director and counsel – representation without company authority – personal loss vs company loss – stay pending enquiries into deceased director's estate.
|
11 May 2001 |
|
Court allowed post‑limitation amendment because the new claim arose from the same facts as the original negligence/death claim.
Civil procedure – Amendment after expiry of limitation period – Ord. 20 r.5(2) & (5) RSC – Court’s discretion to allow amendment where new cause of action arises from same or substantially same facts – Limitation defence distinguished from cases where no valid proceedings existed within limitation period (Ingolosi distinguished).
|
8 May 2001 |
|
Applicant’s assertion of legitimate expectation and Wednesbury unreasonableness failed; decision remitted for reconsideration with reasons.
Administrative law – Judicial review of tribunal decision – Legitimate expectation – Requirement of clear, unambiguous promise or established practice – Wednesbury unreasonableness – Duty to give reasons; remit for reconsideration.
|
7 May 2001 |
|
Court found mayor and police guilty of contempt for disobeying an injunction and unjustifiably dispersing a public meeting.
Civil contempt — disobedience of injunction restraining disruption of public meeting — mens rea in contempt — validity and sufficiency of penal notice and service — police reliance on prevention of disorder/superior orders — suspended custodial sentence to protect freedom of assembly.
|
5 May 2001 |
|
High Court dismissed labour-originating summons for wrong forum; Employment Act 2000 did not apply to pre-commencement termination.
Constitutional jurisdiction – Industrial Relations Court’s exclusive original jurisdiction over labour disputes; Employment Act 2000 – non-retrospectivity; severance pay not available for terminations before Act commencement.
|
3 May 2001 |
|
Labour claim dismissed: wrong forum and Employment Act 2000 not applicable to termination before its commencement.
Labour law — Jurisdiction — Industrial Relations Court has original jurisdiction over labour disputes (s.110(2) Constitution); High Court should not assume jurisdiction where subordinate court competent
Employment Act 2000 — Commencement and non-retrospectivity — Act effective 1 September 2000; severance pay under the Act not available for terminations before commencement
Procedure — Wrong forum and wrong choice of law — dismissal with costs
|
3 May 2001 |
|
An originating summons hearing was set aside for being prematurely fixed and for non-compliance with Order 28 affidavit procedures.
Civil procedure – Originating summons – Order 28 rule 1A RSC (affidavit timetable) – Order 32 rule 5 RSC (hearing in absence) – Order 2 rule 2 RSC (applications to set aside for irregularity) – Undated acknowledgment of service – Setting aside premature hearing.
|
3 May 2001 |
| April 2001 |
|
|
Whether an amended costs rule applies to judgments entered before its commencement or only prospectively.
Subsidiary legislation – Interpretation of amended scale of costs – Prospective versus retrospective application – Operative date for collection costs is date of judgment – Recovery of collection costs only if expressly awarded as part of the judgment debt.
|
29 April 2001 |
|
An ex parte stay of execution requires full disclosure and particulars of any meritorious defence; bare assertions will be vacated.
Civil procedure – Stay of execution – Order 47/1 – Ex parte applications – Duty of full and frank disclosure by counsel – Meritorious defence must be particularised – Summary judgment – Vacatur of stay.
|
27 April 2001 |
|
Appeal dismissed: joint-enterprise conviction for attempted robbery and three-year sentence affirmed.
Criminal law – Attempted robbery – Joint enterprise/acting in concert (s.21 Penal Code) – Credibility of complainant – Aggravated robbery where committed in company – Sentence proportionality.
|
23 April 2001 |
|
The court confirmed the rape conviction and increased the respondent's sentence from three to seven years for gang rape.
Criminal law – Rape – Gang rape – Sentence – Manifestly inadequate sentence – Confirmation/appeal review – Sentence enhancement – Consistency with precedent (Rep v Ganizani Layelo).
|
11 April 2001 |
|
Conviction for gang rape confirmed; three-year sentence increased to seven years as manifestly inadequate.
Criminal law – Rape – Gang rape – Appropriate sentence for multiple perpetrators and repeated sexual assaults – Confirmation of conviction and enhancement of manifestly inadequate sentence – Precedent consistency in sentencing.
|
11 April 2001 |
|
The respondent's conviction was confirmed and the burglary sentence increased from 30 months to six years' imprisonment.
Criminal law – Burglary – Sentence confirmation and enhancement – Burglary maximum penalty (death or life) – High Court starting point six years – Absence of serious mitigating factors – Concurrent theft sentence.
|
11 April 2001 |
|
Court ordered estate administrators to render accounts and join the Administrator General, refusing immediate revocation despite mismanagement.
Administration of estates – duty of administrator to call in assets, pay creditors, account and protect minors’ interests – failure to account – revocation of letters of administration discretionary – alternative remedies: joinder of Administrator General and applicants, mandatory accounting and scheme for minors – costs against defaulting administrators.
|
6 April 2001 |
|
Whether administrators who fail to account should be compelled to render accounts and protect minor beneficiaries rather than immediately removed.
Administration of estates – duty to render accounts – obligation to provide scheme for minor beneficiaries – revocation of letters of administration as a remedy – joinder of Administrator General and family representative – costs against defaulting administrators
|
5 April 2001 |
|
The applicant’s failure to produce the insurance policy defeated his crop indemnity claim for hail damage.
Insurance law – non-production of policy document bars extrinsic proof of its terms; broker agency (broker as insured's agent); burden to plead and prove special damage; failure to prove indemnity claim.
|
5 April 2001 |
| March 2001 |
|
|
Court discharged the regulator as party, finding the first defendant’s attempted joinder an abuse of process and ordered costs.
Civil procedure – Joinder of parties; Abuse of process – reintroduction of matter previously dismissed; Administrative/regulatory law – necessity of regulator’s presence in declaratory proceedings concerning interconnection agreements; Declaratory relief versus appeal or fresh proceedings; Costs for interlocutory applications.
|
29 March 2001 |
|
Applicants failed to prove prima facie legality of their sit-in; injunction to protect negotiations was dismissed.
Civil procedure – Order 29 r.1 – interim injunction; industrial action – legality of sit-in/strike; burden to establish prima facie right; injunctions not to compel negotiations; distinct causes of action vs. grafting new matter onto pending judicial review.
|
28 March 2001 |
|
The plaintiff cannot sue the underwriters; only insured directors may claim after legal liability is established; conflicting indemnities void.
Insurance — Directors' and Officers' (D&O) policy — Interpretation: insured persons vs company rights; insured directors/officers acquire rights only after legal liability established. Contract law — policy construction: surrounding circumstances and business commonsense. Companies law — Section 163: prohibition on contractual indemnities for officers; contractual clauses attempting to exclude s.163 are void. Civil procedure — Order 14A RSC: preliminary points of law permissible only where no disputed facts and affidavits must be within deponent's knowledge
Evidence — inadmissibility of double hearsay in Order 14A affidavits. Third-party rights — no common-law or statutory right for company to sue insurers absent specific legislation
|
27 March 2001 |
|
The respondent must pay full statutory severance for entire service; long-service awards do not offset statutory severance.
Employment law – Severance allowance – Section 35(1) Employment Act 2000 – Long Service Awards not a substitute for statutory severance – Right to fair labour practices (s.31) – Interest for delayed statutory payment.
|
23 March 2001 |
|
Conviction for rape confirmed; lower court’s five-year sentence set aside and increased to seven years’ hard labour due to gravity of the offence.
Criminal law – Rape – Confirmation of conviction – Sentencing – Whether original sentence unduly lenient – Enhancement of sentence where victim threatened and subjected to consecutive rapes – Instigation of co-perpetrator.
|
22 March 2001 |
|
Private employer may terminate on contractual notice; constitutional administrative-law protections (Section 43) do not apply to private employment termination.
Employment law – Termination of employment by private employer – Contractual notice – Validity of Acting Chairman’s approval – Non-application of constitutional administrative-law protections (Section 43) to private master-servant terminations – Damages for loss of legitimate expectations.
|
20 March 2001 |
|
Prison officers convicted of manslaughter; offence in line of duty aggravates sentence, remorse and family circumstances limited mitigation.
Criminal law – Manslaughter by custodial officers – Remorse after conviction of limited weight – Offence in course of duty aggravates sentence – Family responsibilities not substantial mitigation – Remand time to be credited – 18 years' imprisonment with hard labour.
|
19 March 2001 |
|
Six-year sentence for theft of two cattle was manifestly excessive and reduced to permit the defendant's immediate release.
Sentencing — Theft of cattle — Manifestly excessive sentence — Statutory maximum for worst instance — Need to assess actual facts and mitigation — Review and reduction of sentence.
|
17 March 2001 |
|
|
14 March 2001 |
|
Appeal allowed where trial court misapplied evidence law and failed to consider self-defence; conviction quashed.
Criminal law – evaluation of credibility and contradiction in evidence; single witness evidence; duty to consider possible defences (self-defence/defence of another); burden on prosecution to disprove raised defences beyond reasonable doubt; appellate review of factual findings.
|
13 March 2001 |
|
Committal for contempt requires authenticated evidence, proof beyond reasonable doubt, and notice of any restriction order.
Contempt of court — sub judice/prejudicial publications — requirement of notice/knowledge for external restriction orders — magistrate jurisdiction to issue "gagging" orders — authentication and provenance of video evidence — admissibility of hearsay in committal proceedings — standard of proof beyond reasonable doubt.
|
11 March 2001 |
|
A five‑year sentence for housebreaking reduced to three years due to youth, first‑offence status, guilty plea and lack of aggravation.
Criminal law – Sentencing – Housebreaking/burglary – Appropriate starting point and range (Chizumila guidance) – Weight of guilty plea and first‑offender status – Mitigating and aggravating factors in burglary sentencing.
|
8 March 2001 |
|
Appellant’s conviction quashed where circumstantial evidence had gaps and hearsay/confessions were inadmissible.
Criminal law – Circumstantial evidence – must exclude all reasonable hypotheses of innocence; Hearsay – statements by co-accused to third parties inadmissible to prove truth; Confession – only evidence against maker unless adopted; Burden of proof rests on prosecution.
|
8 March 2001 |
| February 2001 |
|
|
An interim administrator lacked authority to sue in the company’s name; injunction obtained without mandate was discharged.
Company law – separate juristic personality; authority to sue rests with directors (Article 63, Companies Act); interim administrator’s powers limited until registration; ratification of unauthorised acts; interlocutory injunction – discharge where obtained without mandate or where material change in circumstances; procedural remedies (stay/dismissal) versus discharge.
|
22 February 2001 |
|
A rehearing on appeal is confined to evidence before the Registrar; new affidavit disallowed and damages confirmed subject to tax deduction.
Civil procedure – Appeals from Registrar under Order 58 – scope of "rehearing"; Evidence – admissibility of additional evidence on appeal; Evidence – sufficiency of petty cash vouchers, invoices and quotations versus receipts; Assessment of damages – loss of use/loss of earnings must account for tax liability.
|
18 February 2001 |
|
A mortgagor cannot obtain interlocutory relief to stop a bona fide sale without paying arrears or proving bad faith.
Interlocutory injunctions — American Cyanamid test; Mortgagee/chargee power of sale — suing for debt does not waive sale rights; mortgagor must pay arrears or show bad faith to restrain sale; bona fide contract by mortgagee binds mortgagor; damages often adequate remedy.
|
15 February 2001 |
|
An interlocutory injunction preventing a mortgagee’s sale will be dissolved where plaintiff suppressed material facts and damages suffice.
Interim injunctions — ex parte application and suppression of material facts; Registered Land Act s.68 — no duty to notify sale; mortgagee's power of sale — sale binds mortgagor absent bad faith; American Cyanamid principles — triable issue and adequacy of damages.
|
15 February 2001 |