Dabila Banda’s Post

It is well settled principle that on remand the learned Court trying the suit has to regulate the proceedings or proceed with the case in terms of order of remand passed by the higher Court. Attempt to sidetrack issue or decision in a manner, not directed by Higher Court, can result into defiance of remand order. Perusal of Order XLI Rule 23 of the Code does not reflect if the legislature has envisaged to discard the pre-remand evidence altogether. It says the evidence recorded during the trial shall be the evidence after remand, which is subject to all just exceptions. The case has to be re-admitted by the learned trial Court on the number allocated to it originally in the register. R. F. A. No. 92515 of 2017 Shahid Hussain versus Abdul Jabbar Tassaduq 2024 LHC 4970

It is well settled principle that on remand the learned Court trying the suit has to regulate the proceedings or proceed with the case in terms of order of remand passed by the higher Court. Attempt to sidetrack issue or decision in a manner, not directed by Higher Court, can result into defiance of remand order. Perusal of Order XLI Rule 23 of the Code does not reflect if the legislature has envisaged to discard the pre-remand evidence altogether. It says the evidence recorded during the trial shall be the evidence after remand, which is subject to all just exceptions. The case has to be re-admitted by the learned trial Court on the number allocated to it originally in the register. R. F. A. No. 92515 of 2017 Shahid Hussain versus Abdul Jabbar Tassaduq 2024 LHC 4970

It is well settled principle that on remand the learned Court trying the suit has to regulate the proceedings or proceed with the case in terms of order of remand passed by the higher Court. Attempt to sidetrack issue or decision in a manner, not directed by Higher Court, can result into defiance of remand order. Perusal of Order XLI Rule 23 of the Code does not reflect if the legislature has envisaged to discard the pre-remand evidence altogether. It says the evidence recorded during the trial shall be the evidence after remand, which is subject to all just exceptions. The case has to be re-admitted by the learned trial Court on the number allocated to it originally in the register. R. F. A. No. 92515 of 2017 Shahid Hussain versus Abdul Jabbar Tassaduq 2024 LHC 4970

Curative Review petition in the SC: The SC has allowed for the third time an application for rectification in the Mubarak Sani case. The Court has said that it is not a review for the second time as the Constitution does not allow review after review. But, in reality, it is actually review after review as the SC has set aside his previous two judgements and has declared that the third judgement must be considered as the order of the Court. It implies that it was a review after review which might be called a curative review which is alien to our Constitutional scheme. Rectification is something which is done in the already existing order/judgement. Clerical mistakes can be rectified or corrected in a judgement but its scope is very limited. A stand alone and independent judgement cannot be said to be a clarification. It is substantially a third judgement and it is a review on review. Nothing less than that.

This article explores the application of Sections 43 and 44 of the Courts of Judicature Act (CJA) 1964, focusing on the Court of Appeal’s decision in 𝘚𝘪𝘭𝘷𝘦𝘳 𝘊𝘰𝘯𝘤𝘦𝘱𝘵 𝘚𝘥𝘯 𝘉𝘩𝘥 𝘷 𝘉𝘳𝘪𝘴𝘥𝘢𝘭𝘦 𝘙𝘢𝘴𝘢 𝘋𝘦𝘷𝘦𝘭𝘰𝘱𝘮𝘦𝘯𝘵 𝘚𝘥𝘯 𝘉𝘩𝘥.  Sections 43 and 44 of CJA regulate how and where parties may apply for interim relief during appellate proceedings, but varying interpretations have sparked a debate over whether the Court of Appeal has original jurisdiction in such matters. Given the varying interpretations, there is a need for the Court of Appeal to re-examine the previous cases, and provide clarity on these provisions. To read the full analysis by Tan Sri Cecil Abraham, Dato’ Sunil Abraham and Muzalifah Shabudin, please see the attached article or visit: https://lnkd.in/gskpqcVV. 

Brief facts; Appeal filed by Applellant was dismissed and resulted in this appeal: The grievance of the Appellant is that the impugned order is totally non-speaking and has not dealt with the various prayers made by the Appellant in the application and has confined its order only with the admitted claim which by the RP and has also made a reference to the email dated 15.02.2023 which has also been sent by the RP to the Appellant.  Order: fter perusal of the record, are of the considered opinion that this matter requires a relook by the AA for the purpose of recording a finding on each prayers sought in the application after taking into consideration the pleadings as well as the evidence brought on record and the impugned order is totally non- speaking.  The appeal succeeds and the matter is remanded back to the Adjudicating Authority to decide the application again by recording reasons while dealing with the prayers made in the application. 

Some contend that the SC must continue granting leave to appeal to correct ‘bad law’ at the high-court level. However, this reasoning is fundamentally flawed. Indeed, if we accept that the problem truly does lie with the high courts, the solution to such ‘bad law’ is not to widen the proverbial road by adding more judges but to address the problem at the high-court level.--- So the writer prefers to suggest that instead of increasing the numbers , effort be made to reform the present infrastructure mainly at the high court levels.?

In a case of PROPERTY DISPUTE, the Bench of Justice J.B. Pardiwala and Justice R. Mahadevan observed, “It must be noted that Rule 1 of Order 39 of the Code clearly provides for interim injunction restraining the alienation or sale of the suit property and if the doctrine of lis pendens as enacted in Section 52 of the T. P. Act was regarded to have provided all the panacea against pendente lite transfers, the Legislature would not have provided in Rule 1 for interim! injunction restraining the transfer of suit property. Rule 1 of Order 39, in our view, clearly demonstrates that, notwithstanding the Rule of lis pendens in Section 52 of the T. P. Act, there can be occasion for the grant of injunction restraining pendente lite transfers in a fit and proper case.”

While we await the ECJ Judgment in Joined cases C-269/23 P C-272/23 P, I am intrigued by one fact: why such an important decision was decided by the Court in a simple Chamber composition? The answer to this question will be even more intriguing depending on the actual direction taken by the ECJ ... PS: the first instance judgment was passed by the General Court's First Chamber, Extended Composition

EXHAUSTION DOCTRINE (ELC 101) Parliament has, through statute, established other primary adjudicatory bodies, the court should let those primary adjudicatory bodies exercise their primary jurisdiction, and the court should only exercise appellate jurisdiction. This was the principle emphasized by the Court of Appeal in Kibos Distillers Limited & 4 others v Benson Ambuti & 3 others [2020] eKLR.  Simply put, This doctrine of exhaustion requires parties to exhaust the internal dispute mechanisms when a dispute arises and only come to court when all else fails and as a last resort. The reason why the doctrine of exhaustion is held in deference is because of the right to access to justice. First, it promotes alternative dispute resolution mechanisms. Secondly, it reduces the litigation in our courts and thirdly it affords the parties an additional layer of forum where the parties can air their grievances. That expands the right to access to justice.