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Citation
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Judgment date
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| December 2003 |
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Applicant awarded market-rental damages and assessment costs for respondent's wrongful occupation based on unchallenged valuation evidence.
Property law – Wrongful possession – Measure of damages: market rental value; assessment based on unchallenged professional valuation; award of K509,000 and costs of assessment.
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31 December 2003 |
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Letters admitting rent arrears and failure to seek a stay for arbitration led to judgment on admissions and summary judgment for the plaintiff.
Lease – rent and service-charge arrears – admission by correspondence – Order 27 r.3 (judgment on admissions) – arbitration clause – stay under Arbitration Act – failure to apply for stay – Order 14 r.1 (summary judgment) – costs.
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31 December 2003 |
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Summary judgment granted where plaintiff proved debt and defendant failed to file particulars or show a bona fide defence.
Civil procedure – Summary judgment under Order 14 – Plaintiff’s documentary proof of debt – Defendant’s failure to file defence or affidavits with particulars – No bona fide defence – Judgment with costs.
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31 December 2003 |
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Whether service at a spouse's workplace renders a default judgment irregular and if a meritorious defence warrants setting it aside.
Civil procedure — setting aside default judgment — Order 13 r 9 — service by post/last known address — service at spouse’s workplace — regularity of judgment — meritorious defence — right to trial.
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31 December 2003 |
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Assessment of general damages for assault and battery based on uncontested evidence and medical report.
Tort — Assault and battery — Assessment of general damages — Pain and suffering, loss of amenities, injury to feelings — Weight of medical report versus continued employment and outpatient treatment.
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31 December 2003 |
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Where the respondent negligently damages the applicant's vehicle, the applicant is entitled to loss-of-use damages based on reasonable hire costs.
Tort — Negligence — Motor vehicle collision — Liability for loss of use — Measure of damages for loss of use assessed by reasonable hire cost per day.
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31 December 2003 |
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Applicant awarded K457,000 for repair and loss-of-use after vehicle damaged by police officers; hire costs upheld.
Assessment of damages — Vehicle damaged by state police — Repair costs and loss-of-use hire costs — Acceptance of undisputed evidence — Award of damages and costs.
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31 December 2003 |
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Default judgment set aside for irregular service; defendant's meritorious defence found; plaintiff to pay sheriff fees.
Civil procedure – setting aside default judgment – service of process – personal service required under Order 65 r2 – third‑party acknowledgement and agency – meritorious defence – sheriff fees (s.44(3) Sheriff Act).
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31 December 2003 |
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Summary judgment refused where genuine disputes existed over amount recovered and entitlement to statutory 15% collection fees.
Civil procedure – Summary judgment (Order 14) – Requirement of no bona fide defence; Solicitors’ collection fees – statutory 15% under Scales and Minimum Charges (Table 6); entitlement and timing of recovery; necessity of evidence on amount collected and plaintiff’s role; litigant in person claims and bill of costs.
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31 December 2003 |
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A respondent's general denial cannot resist summary judgment absent a shown bona fide defence to a conversion and delivery-up claim.
Civil procedure – Summary judgment (Order 14) – General traverse insufficient – Defendant must show cause by affidavit to raise bona fide defence – Conversion/delivery up of vehicle – Change of registration as evidential admission.
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31 December 2003 |
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Summary possession under Order 113 inappropriate where ownership and bona fide purchaser issues require plenary proceedings.
Property law – recovery of possession – Order 113 RSC – wrongful occupation vs purchaser with defective title – bona fide purchaser – summary proceedings inappropriate where title disputed – proceed by writ – service of process.
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31 December 2003 |
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Damages for conversion and loss of use awarded to the applicant after respondent's agents seized her household goods; costs to applicant.
Property law – Conversion and trespass to goods – Appropriate remedy where goods not returned – Measure of damages for conversion (market value at time of wrong v. value at assessment) – Damages for loss of use of domestic household items – Costs.
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31 December 2003 |
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Summary judgment granted where defendant’s uncorroborated assertion of cheque payment failed to disclose a bona fide defence.
Civil procedure – Summary judgment (Order 14) – Defendant must show bona fide defence supported by credible evidence – Mere assertion of cheque payment insufficient – Production of bank statements or equivalent may be required – Non-attendance undermines defence.
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31 December 2003 |
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Summary judgment application undermined by material discrepancies between affidavit figures and particulars of claim, failing to prove the debt clearly.
Civil procedure — Summary judgment (Order 14) — Plaintiff must prove debt clearly in affidavit — Inconsistencies between affidavit and pleadings — Omission of payments and unexplained numerical discrepancies defeat summary relief.
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31 December 2003 |
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Court continued attachment order where plaintiff sold preserved vehicle in bad faith and ordered consolidation and costs to defendants.
Attachment/preservation orders – ex parte orders and abuse of process – sale of preserved property – bad faith conduct – consolidation of related proceedings – costs awarded.
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30 December 2003 |
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Whether a party may withdraw from a fixed-term employment agreement before commencement where the other party’s conduct amounts to anticipatory breach.
Contract law – fixed-term employment agreement – pre-commencement withdrawal – anticipatory breach/repudiatory conduct – objective test – remedies; insufficient evidence for counterclaim.
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30 December 2003 |
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Where an injunction already exists, the applicant cannot obtain a second identical injunction; committal is the proper remedy.
Injunctions – ex parte injunctions – consent orders – estoppel – multiplicity of injunctions – remedy for breach of injunction is committal proceedings rather than duplicate injunctions.
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28 December 2003 |
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An ex parte injunction enforcing a claimed right of way was retained pending trial because no material suppression was shown.
Civil procedure — interlocutory/ex parte injunction — application to dissolve injunction — suppression of material facts — easement/right of way — prima facie entitlement to easement enforceable by interlocutory relief — factual issues reserved for trial.
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28 December 2003 |
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Fine alone inadequate for wildlife trafficking; imprisonment imposed despite statutory ambiguity and first-offender status.
Wildlife law – National Parks and Wildlife Act s.110 – ambiguity in prescribed fine; penal statutes strictly construed; sentencing – first offenders (s.340 Criminal Procedure) – fine versus imprisonment; seriousness and public interest in wildlife trafficking; aggravating conduct (resistance, syndicate activity).
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28 December 2003 |
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Interlocutory injunction granted where triable issues and potential loss of goodwill made damages an inadequate remedy.
Contract law – distributorship termination – requirement of written notice and opportunity to be heard – adequacy of damages – interlocutory injunction to preserve goodwill and status quo pending trial.
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23 December 2003 |
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Repatriation should be to place of recruitment or nearer home; bank-rate interest and collection-charge orders were unlawful and set aside.
Employment law – repatriation on termination – fair labour practices under constitutional provision – balance of employer and employee interests; Industrial Relations Court jurisdiction – limits on awarding equitable remedies; Award of interest – necessity to plead basis and rate; Legal collection charges – payable by collecting party under Legal Practitioners (Scale and Minimum Charges) (Amendment) Rules 2002; Costs.
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21 December 2003 |
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The court held that government funds are immune from garnishee execution; judgments against the State require appropriation/constitutional procedure.
Public law — Immunity from execution — Garnishee proceedings (Orders 45–52) inapplicable to Government — Order 77 r.15 part of domestic practice — section 8 Civil Procedure Act does not authorize common-law execution against State — Constitutional requirement to charge and appropriate Consolidated Fund for judgments.
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15 December 2003 |
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Creditor may apply under s.337(1) within existing proceedings; veil lifted for director's scheme to defraud.
Companies Act s.337(1) – lifting corporate veil – application may be made within existing proceedings – no separate originating process required – procedural irregularities curable – intention to defraud shown where director/shareholder sold security offered for company overdraft – failure to file opposing affidavit treated as admission.
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11 December 2003 |
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An Assembly may lawfully levy municipal rates during dissolution; equitable ownership and possession render the defendant liable for rates.
Local government law – Power to levy and collect municipal rates during dissolution of assemblies; Rating law – "Owner" for valuation and rating includes equitable owners and those entitled to dispose of an interest; Pleading requirements – specific pleading required for claim for interest; Legal practitioner collection costs – applicable amendment determined by date proceedings commenced.
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11 December 2003 |
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No immediate appeal to the Supreme Court lies from a High Court's interlocutory finding that a defendant has a case to answer.
Appeal — interlocutory order — finding of 'case to answer' — final judgment requirement under s.11(1) Supreme Court Act — DPP appeals distinguished — timing of appeal (raise after final judgment).
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9 December 2003 |
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High Court may hear "no case" submissions; prosecution evidence here required defendants to enter defence on corrupt-practices charges.
Criminal procedure Submission of no case to answer; High Court jurisdiction to entertain such submissions; application of Galbraith test. Corrupt Practices Act s24(2) elements: corruptly give/promise/offer gratification as inducement. Evidence sufficiency, credibility, and effect of inconsistencies or delay. Amendment of charge under s254(2)
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7 December 2003 |
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A receiver appointed to protect an estate is liable for loss from failure to safeguard assets; Section 27 immunity does not cover omissions.
Wills & Inheritance Act – Receiver's duties to take possession and protect estate pending grant – Section 27 immunity not applicable to failure to act; summary judgment under Order 14 appropriate where no bona fide triable defence.
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7 December 2003 |
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The applicant successfully set aside a default judgment entered against the wrong party without proper service.
Civil procedure — Default judgment — Irregular judgment where originating process not served on correct legal entity — Misnomer versus amendment — Ex debito justicie relief — Insufficiency of poorly labelled exhibits to prove prior payments.
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4 December 2003 |
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Application for bail denied: serious charges, prior flight and confession create absconding risk despite medical complaints and prosecutorial delay.
Bail pending trial – Capital offences (murder) – Exceptional/special circumstances required – Balancing right to liberty against interests of justice – Pre-trial delay and medical illness – Flight risk and confession – Registrar ordered to set down trial.
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3 December 2003 |