Research Centre

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Quarterly

Case Law Update

Online Edition Volume 1, Issue-III (January-March 2020)

Published by: Supreme Court Research Centre

Available online at:

https://www.supremecourt.gov.pk/download

s/?wpdmc=research-center-publications

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Table of Contents

Supreme Court of Pakistan3

1. Shams ur Rehman v. Military Accountant General ............................................................................... 3 Non-application of principle of locus poenitentiae and application of principle of estoppel to recovery of paid

emoluments from civil servants3

2. Fawad Ishaq v. Mehreen Mansoor .............................................................................................................. 3 Husband’s legal capacity to deal with property of his wife3 Right of a married woman in her owned property, in Islam3

3. Commissioner Inland Revenue v. Linde Pak Ltd. .................................................................................. 4 Application of rules of ejusdem generis and nosciture a sociis for interpretation of words4

4. Mir Muhammad Khan v. Haider ................................................................................................................. 4 Mentioning date, time and place of making Talb-i- Muwathibat in Plaint4 Retrospective application of law enunciated by the Supreme Court5

5. Ali Ahmad v. State........................................................................................................................................... 5 Shifting of onus on accused in case of defence plea u/s 121, QSO5 Conviction on the basis of admission made in statement u/s 342, CrPC5

6. Chairman, PTCL v. Konish Enterprize Ltd. ............................................................................................. 6 Duty of care and liability to pay damages, in tort, between two licensees6

7. Raja Khurram Ali Khan v. Tayyaba Bibi .................................................................................................. 6 Maintainability of Appeal before Division Bench for enhancement of sentence passed by Single Bench of the

High Court6 Difference between legal burden and evidential burden7

Foreign Superior Courts7

8. WM Morrison Supermarkets v. Various Claimants ............................................................................... 7 “Close connection” Test—Vicarious liability of employer7

9. Barclays Bank v. Various Claimants .......................................................................................................... 7 Vicarious liability for the torts of another8

10. McKinney v. Arizona ........................................................................................................ 8 Reweighing aggravating and mitigating factors by appellate court8

11. Holguin-Hernandez v. United States .................................................................................. 8 Examination of reasonableness of sentence by appellate court9

12. Nevsun Resources Ltd. v. Gize Yebeyo Araya .................................................................. 9 Modern concept of International law9

13. China Machine New Energy Corporation v. Jaguar Energy Guatemala LLC ..................... 10 Belated objection as to a fatal failure in the process of arbitration10

14. Kadir v. the Queen; Grech v. the Queen ......................................................................................... 10 Admitting evidence obtained in deliberate defiance of the law10

15. COVEC (PNG) Limited v. Peter Kama .......................................................................................... 11 Restitution of the unjustly gained benefit11

16. In the proceedings about the constitutional complaint of Dr. E… .................................. 12 Principles of the ideological-religious neutrality of the state and the functionality12

17. National Director of Public Prosecutions v Botha N.O. and Another............................. 12 Constitutional protection of property rights and forfeiture of property acquired through unlawful means12

18. Union of India v. M.V. Mohanan Nair ............................................................................ 13 Unreasoned decision---precedential value13

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Supreme Court of Pakistan

1. Shams ur Rehman v. Military

Accountant General

2020 SCMR 188

https://www.supremecourt.gov.pk/downloads_jud

gements/c.p._4439_2017.pdf

Present

Mr. Justice Gulzar Ahmed and Mr. Justice

Munib Akhtar

Non-application of principle of locus

poenitentiae and application of principle of

estoppel to recovery of paid emoluments

from civil servants

The issue before the Court was: whether

emoluments of a higher grade paid to a civil

servant who had been granted that higher

grade by some mistake of the department

itself and not because of any fault on his

part, can be recovered? The Court held that

such emoluments cannot be recovered, with

the observations: “For almost 9 years the

petitioner has served in selection grade

BPS-15 and has received the emoluments

and benefits of such post. It is not in dispute

that the selection grade BPS-15 was granted

to the petitioner by the department itself and

the petitioner apparently had no role in

obtaining the post of selection grade BPS-15

for that no such allegation whatsoever is

made against him. The respondents have

merely pleaded mistake, as only 25% of

posts from BPS-11 were required to be filed

in the selection grade BPS-15 and it was

subsequently realized by the department

itself that the petitioner did not fall within

the 25% quota and thus was recalled from

the post of selection grade BPS-15 and

reverted him back to the post of BPS-11.

For 9 years the petitioner performed the

work of a higher post of selection grade

BPS-15 and thus on the principle of locus

poenitentiae the benefits paid to him could

not be recovered from him for that such

principle would not apply. Further, in our

view the principle of estoppel will also be

applicable as against the department from

recovering the emoluments and benefits of

BPS15 from the petitioner.”

2. Fawad Ishaq v. Mehreen Mansoor

https://www.supremecourt.gov.pk/downloads_jud

gements/c.p._154_2019.pdf

Present

Mr. Justice Qazi Faez Isa and Mr. Justice

Sardar Tariq Masood

Husband’s legal capacity to deal with

property of his wife

It was contended before the Court that the

husband was an ostensible owner of the

property of his wife and thus he could

transfer that property. The Court repelled the

contention, and held: “To attract section 41

it had to be established that, Mst. Khurshida

[the wife] had expressly or impliedly held

out that her husband [the transferor] was the

“ostensible owner” of the Property and had

authorized him to transfer the Property to

Mehreen [the transferee]. The other

requirements of section 41 are that the

proposed transferee had taken “reasonable

care to ascertain that the transferor had

power to make the transfer” and had “acted

in good faith”. Mst. Khurshida neither held

out that her husband was the ostensible

owner of the Property nor that she had

authorized him to transfer it. Mehreen also

lead no evidence to show that she had

attempted to ascertain that Haji Muhammad

Ishaq Jan had the power to transfer the

Property. Therefore, Mehreen could not

avail the benefit of section 41 of the

Transfer of Property Act.” The Court further

held that “a husband has no right to his

wife’s property nor can he ‘guarantee’ or

encumber it without her permission.”

Right of a married woman in her owned

property, in Islam

The Court made a comparative analysis of

the old European and American concepts

with the classic Islamic law as to rights of a

married woman in her owned property, and

observed: “A chasm existed between a

woman’s position in Islam to that which

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prevailed till a century ago in Europe and

America where upon marriage a wife stood

deprived of her property, which became that

of her husband to do with it as he pleased.

However, in the Muslim world the situation

was altogether different and this has been

the position since over fourteen hundred

years…..In Islamic societies Muslim ladies

not only retained their properties but also

their identities after marriage.”

3. Commissioner Inland Revenue v.

Linde Pak Ltd.

2020 SCMR 333

https://www.supremecourt.gov.pk/downloads_jud

gements/c.a._837_2011.pdf

Present

Mr. Justice Umar Ata Bandial, Mr. Justice

Maqbool Baqar and Mr. Justice Faisal

Arab

Application of rules of ejusdem generis

and nosciture a sociis for interpretation of

words

The question before the Court was: whether

a loan agreement falls within the scope of

the phrase “instrument of any kind” used in

section 50(7D) of the Income Tax

Ordinance, 1979? The Court answered the

question in negative, and held: “[T]he term

‘instrument’, cannot, in the context of the

subject provision be construed in its wider

sense, so as to include an agreement, or for

that matter a finance/loan agreement as it

will be violative of the rule of construction

known as ejusdem generis meaning ‘the

same kind or class’, which requires that

when a general word or phrase follows a list

of specifics the former will be interpreted to

include only the items of the same class as

those listed…..The rule is founded upon the

idea that if the legislature intended a general

word to be used in an unrestricted sense, the

particular clause would not have been

mentioned.” The Court further held:

“[W]ords, and particularly general words,

cannot be read in isolation, their colour and

their contents are derived from their context.

A word or a phrase is not to be construed as

if it stood alone but in the light of its

surroundings and thus the Latin maxim

Nosciture a Sociis, which means it is

recognized by its associates.”

4. Mir Muhammad Khan v. Haider

https://www.supremecourt.gov.pk/downloads_jud

gements/c.p._1084_2011.pdf

Present

Mr. Justice Gulzar Ahmed, Mr. Justice Ijaz

ul Ahsan, Mr. Justice Mazhar Alam Khan

Miankhel, Mr. Justice Sajjad Ali Shah and

Mr. Justice Yahya Afridi

Mentioning date, time and place of making

Talb-i- Muwathibat in Plaint

The case involved the questions: whether it

is necessary for a plaintiff to mention the

date, time and place of making Talb-i-

Muwathibat in the plaint? And whether the

law enunciated by the Supreme Court is

retrospectively applicable to the pending

cases? The Court answered both the

questions in affirmative. The Court held:

“Order VI Rule 2 of the CPC obligates the

plaintiff to state all the material facts in a

concise form. It mandates that all the parties

must state all material facts necessary for

the purpose of establishing a cause of action

within their pleadings. In the context of the

exercise of the right of pre-emption by any

party, the date, time, and place of

performance of Talb-i-Muwathibat is the

most material fact because all subsequent

acts towards successfully exercising and

enforcing the right of pre-emption have

reference to, flow out of, and the time frame

within which such acts are required to be

performed is with relevance to, the date of

performance of Talb-i-Muwathibat. It,

therefore, stands to reason that the material

and necessary facts required to prove the

making of Talb-i-Muwathibat must be

mentioned within the pleadings from the

commencement of an action claiming a right

of pre-emption so as to set out with clarity

the case of the Plaintiff, not let the

defendant be taken by surprise, and to avoid

misuse and abuse of the law by an

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unscrupulous litigant who may choose the

date of his knowledge and performance of

Talb-i-Muwathibat to suit his convenience

[at the stage of evidence] without any regard

to the actual facts.”

Retrospective application of law

enunciated by the Supreme Court

As regards the second question, the Court

observed: “It is settled law that when the

Supreme Court interprets or declares the law,

that interpretation only clarifies the meaning

of the words already used by the legislature

or the competent authority drafting the

provisions. It stands to reason, therefore,

that the same interpretation must be

applicable not from the time when the

judgment pronouncing such interpretation

was rendered but from the time when the

law or provision in question was

enacted…..It is a matter of fact that all

judgments of the Supreme Court where any

law or provision has been interpreted only

declares what the law is and do not make or

amend any laws…..Therefore,…such

interpretations must apply to any cases that

are brought before the courts under the law

in question.” The Court however clarified:

“It is, of course, within the purview of the

Supreme Court to limit this application by

prescribing a time from which such

interpretations must apply…”

5. Ali Ahmad v. State

PLD 2020 SC 201

https://www.supremecourt.gov.pk/downloads_jud

gements/crl.a._154_l_2013.pdf

Present

Mr. Justice Manzoor Ahmad Malik, Mr.

Justice Sardar Tariq Masood and Mr.

Justice Syed Mansoor Ali Shah

Shifting of onus on accused in case of

defence plea u/s 121, QSO

The Court was concerned, in the case,

mainly with two legal questions: whether

the prosecution is absolved of its duty to

prove its case against the accused when he

takes a defence plea and the onus shifts on

the accused under article 121, QSO? And

whether an accused can be convicted on the

basis of his admission made in statement

under section 342, CrPC? The Court

answered the first question in negative and

the second in affirmative. The Court held:

“Burden is always on the prosecution to

prove its case and it is only when a prima

facie case is made out against the accused

sufficient to justify his conviction, does the

burden shift upon the accused under Article

121 of the QSO…If the prosecution fails to

prove its case against the accused, the

question of shifting of burden upon the

accused does not arise.” The Court dispelled

the impression created by the judgment of a

two-member Bench in Feroze v. State (2008

SCMR 696) that the prosecution evidence

needs not to be appraised in a case where

the accused has taken a defence plea, and

reinforced the law earlier declared by the

larger Benches, by enunciating thus: “The

prosecution is duty bound to prove its case

against the accused beyond reasonable

doubt on the basis of its own evidence and

is not absolved of this duty even if the

accused has taken a defence plea.”

Conviction on the basis of admission

made in statement u/s 342, CrPC

As regards the second question, the Court

held: “Once the prosecution evidence is

disbelieved, rejected or excluded from

consideration, and the facts explained by the

accused in his statement under section 342

Cr.P.C. are accepted entirely, the court is

then to examine the said facts to give due

effect to the statement of the accused, under

the law, whether in favour of or against the

accused. The object of such examination is

to determine whether or not the facts

narrated by the accused constitute an

offence under the law or fit into any

exception of the offence provided under the

law.” The Court, in view of the said

principle of law, restored the conviction

recorded by the trial court on the basis of

the admission made by the accused in his

statement under section 342, CrPC. The

Court though could not notice the contrary

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view of a two-member Bench taken in

Azhar Iqbal v. State (2013 SCMR 383), yet

it has, by its judgement in this case, virtually

overruled the same.

6. Chairman, PTCL v. Konish

Enterprize Ltd.

https://www.supremecourt.gov.pk/downloads_jud

gements/c.a._547_2012.pdf

Present

Mr Mr. Justice Qazi Faez Isa and Mr.

Justice Munib Akhtar

Duty of care and liability to pay damages,

in tort, between two licensees

The case before the Court involved the

questions: whether there exists any duty of

care between the two licensees who both

have valid license to enter and work on one

and the same property? And whether anyone

of such licensees is liable, in tort, to pay

damages to the other, if the latter suffers

some damage for any negligent act or

omission of the former? The Court

answered the questions thus: “Having

considered the point, in our view there is

(subject to what is further said below) a

legal obligation owed by each licensee to

the other in the circumstances as mentioned

in para 6 above as all three stages of the test

laid down in Caparo are satisfied. That

obligation is a duty to take such reasonable

care as ensures that the working by each

licensee of its license does not interfere with

the working of the other license by its

licensee, and also to take such reasonable

care as ensures that (keeping in mind the

nature of the other license) no damage is

caused to the other licensee. Two points

may be made here. Firstly, as so postulated,

the liability is contingent upon the licensee

(allegedly) at fault being aware of both the

existence of the other license and licensee,

and the nature thereof. If the licensee

(allegedly) at fault was not aware of the

other licensee and its license then there

would be no liability, even if damage or

injury is caused to the latter. However, it is

not necessary that there be actual knowledge.

If the facts of the case are such as show that

the licensee can reasonably be regarded as

being (or should reasonably have been)

aware of the other licensee and the nature of

the license worked by it that, in law, would

suffice. Furthermore, the liability would

arise when the licensee (allegedly) at fault

became aware (or should reasonably have,

or be regarded as having, become aware) of

the other licensee and its license. Secondly,

the liability here contemplated is that of one

licensee as such towards the other licensee

as such.”

7. Raja Khurram Ali Khan v. Tayyaba

Bibi

PLD 2020 SC 146

https://www.supremecourt.gov.pk/judgement-

search/

Present

Mr. Justice MushirAlam, Mr. Justice Ijaz Ul

Ahsan and Mr. Justice Yahya Afridi

Maintainability of Appeal before Division

Bench for enhancement of sentence passed

by Single Bench of the High Court

The case put forth before the Court, the

question: whether the appeal filed by the

State, under section 411-A(2) Cr.P.C., for

enhancement of the sentence passed by a

Single Bench in its original jurisdiction was

competent before the Division Bench of the

High Court? The Court decided the question

in negative, with the observations: “It is a

settled principle of law that a right of appeal

is a substantive right, which can only be

granted by an express provision of an

enactment, and cannot be inferred or

implied therefrom. It appears that there was

a conscious omission on the part of the

legislature not to provide the remedy of

enhancement of sentence to a Division

Bench of the High Court against one passed

by a Single Bench of the High Court in its

criminal original jurisdiction. This can be

gauged on reviewing the provisions of

Appeals, Reference and Revisions (Chapter-

XXXIX Part-VII) of the Cr.P.C, and more

particularly, the specific placement of

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section 411-A therein. A careful review of

the provisions contained in the said chapter

suggests that four distinct rights to appeal

have expressly been provided therein: first,

against the conviction and sentence passed

by the Assistant Sessions Judge and by the

Judicial Magistrate (section 408); second,

against the conviction and sentence passed

by the Sessions Judge (section 410); third,

against an acquittal order passed by the Trial

Court other than the High Court (section

417); and finally, against the conviction and

sentence passed by the High Court (section

411-A). Also relevant for resolution of the

matter in hand is the separate provision

provided in section 411-A Cr.P.C. for appeal

against the judgment and sentence passed by

the High Court in its original jurisdiction.

There is an express right of appeal to a

convict against conviction and sentence

under sub-section 1 (supra) subject to the

conditions mentioned therein, and discussed

above. While the Provincial Government

has been vested with the right of appeal

against an order of acquittal of an accused

under sub-section 2 (supra), the omission of

providing a right of appeal to the

complainant and/or to the State for seeking

enhancement of sentence in the said section

or chapter of the Cr.P.C. is conspicuously

indicative of legislative intent.”

Difference between legal burden and

evidential burden

The Court also highlighted the difference

between the legal burden and the evidential

burden thus: “On a conceptual plain, Article

117 of the Order enshrines the foundational

principle of our criminal justice system,

whereby the accused is presumed to be

innocent unless proved otherwise.

Accordingly, the burden is placed on the

prosecution to prove beyond doubt the guilt

of the accused, generally referred to as the

“legal” burden of proof, which can never be

shifted to the accused, unless the legislature

by express terms commands otherwise. It is

only, when the prosecution is able to

discharge the “legal” burden of proof by

establishing the elements of the offence,

which are sufficient to bring home the guilt

of the accused then, the “evidential” burden

is shifted upon the accused, inter alia, under

Article 122 of the Order, to produce

evidence of facts, which are especially in his

exclusive knowledge, and practically

impossible for the prosecution to prove, to

avoid conviction.”

Foreign Superior Courts

SUPREME COURT OF UNITED

KINGDOM

8. WM Morrison Supermarkets v.

Various Claimants

[2020] UKSC 12

https://www.supremecourt.uk/cases/docs/uksc-

2018-0213-judgment.pdf

Before

Lady Hale, Lord Reed, Lord Kerr, Lord

Hodge, Lord Lloyd-Jones

“Close connection” Test—Vicarious

liability of employer

The employers could only be held

vicariously liable for the actions of

employees if they were “closely connected”

with their duties at work. Having explained

the “close connection” test, it was observed

that the first question was what functions or

“field of activities” the employer had

entrusted to the employee. Next, “the court

must decide whether there was sufficient

connection between the position in which he

was employed and his wrongful conduct to

make it right for the employer to be held

liable under the principle of social justice.

9. Barclays Bank v. Various Claimants

[2020] UKSC 13

https://www.supremecourt.uk/cases/docs/uksc-

2018-0164-judgment.pdf

Before

Lady Hale, Lord Reed, Lord Kerr, Lord

Hodge, Lord Lloyd-Jones

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Vicarious liability for the torts of another

Before one person can be made vicariously

liable for the torts of another, two elements

must be shown. First, there must be a

relationship between the two persons which

makes it proper for the law to make one pay

for the fault of the other. Second, there must

be a sufficient connection between that

relationship and the wrongdoing of the

person who committed the tort.

US SUPREME COURT

10. McKinney v. Arizona

Docket No. 18-1109

https://www.supremecourt.gov/opinions/19pdf/18-

1109_5i36.pdf

Coram

Roberts CJ, Thomas, Ginsburg, Breyer,

Alito, Sotomayor, Kagan, Gorsuch, and

Kavanaugh JJ

Reweighing aggravating and mitigating

factors by appellate court

An Arizona jury convicted the petitioner

James McKinney of two counts of first-

degree murder. The trial judge found

aggravating circumstances for both murders,

weighed the aggravating and mitigating

circumstances, and sentenced McKinney to

death. Nearly 20 years later, the Ninth

Circuit held on habeas review that the

Arizona courts violated Eddings v.

Oklahoma, 455 U. S. 104, by failing to

properly consider as relevant mitigating

evidence McKinney’s posttraumatic stress

disorder. McKinney’s case then returned to

the Arizona Supreme Court. McKinney

argued that he was entitled to a jury

resentencing, but the Arizona Supreme

Court itself reweighed the aggravating and

mitigating circumstances, as permitted by

Clemons v. Mississippi, 494 U. S. 738, and

upheld both death sentences.

The US Supreme Court held that a Clemons

reweighing is a permissible remedy for an

Eddings error, and when an Eddings error is

found on collateral review, a state appellate

court may conduct a Clemons reweighing

on collateral review. McKinney’s argument

that a jury must resentence him does not

square with Clemons, where the Court held

that a reweighing of the aggravating and

mitigating evidence may be conducted by an

appellate court. 494 U. S., at 741. Because

Clemons involved an improperly considered

aggravating circumstance, McKinney

maintains that it is inapposite here, where

the case involves an improperly ignored

mitigating circumstance. Clemons, however,

did not depend on any unique effect of

aggravators as distinct from mitigators. For

purposes of appellate reweighing, there is

no meaningful difference between

subtracting an aggravator from one side of

the scale and adding a mitigator to the other

side. McKinney also argues that Clemons is

no longer good law in the wake of Ring v.

Arizona, 536 U. S. 584, and Hurst v. Florida,

577 U. S., where the Court held that a jury

must find the aggravating circumstance that

makes the defendant death eligible. But that

does not mean that a jury is constitutionally

required to weigh the aggravating and

mitigating circumstances or to make the

ultimate sentencing decision within the

relevant sentencing range. See Apprendi v.

New Jersey, 530 U. S. 466, 481. McKinney

notes that the Arizona trial court, not the

jury, made the initial aggravating

circumstance finding that made him eligible

for the death penalty. But McKinney’s case

became final on direct review long before

Ring and Hurst, which do not apply

retroactively on collateral review, see

Schriro v. Summerlin, 542 U. S. 348, 358,

and the Arizona Supreme Court’s 2018

decision reweighing the aggravators and

mitigators did not constitute a reopening of

direct review.

11. Holguin-Hernandez v. United

States

https://www.supremecourt.gov/opinions/19pdf/18-

7739_9q7h.pdf

Coram: Roberts CJ, Thomas, Ginsburg,

Breyer, Alito, Sotomayor, Kagan, Gorsuch,

and Kavanaugh JJ

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Examination of reasonableness of sentence

by appellate court

The petitioner was convicted on drug

charges and sentenced to 60 months in

prison and five years of supervised release

while he was still serving a term of

supervised release for an earlier conviction.

The Government asked the District Court to

impose an additional consecutive prison

term of 12 to 18 months for violating the

conditions of the earlier term. The petitioner

countered that 18 U. S. C. §3553’s

sentencing factors either did not support

imposing any additional time or supported a

sentence of less than 12 months. The court

nonetheless imposed a consecutive 12-

month term. The petitioner argued on appeal

that this sentence was unreasonably long

because it was “ ‘greater than necessary’, to

accomplish the goals of sentencing,” but the

Fifth Circuit held that he had forfeited that

argument by failing to object to the

reasonableness of the sentence in the

District Court. The Supreme Court held: the

petitioner’s district-court argument for a

specific sentence (nothing or less than 12

months) preserved his claim on appeal that

the sentence imposed was unreasonably

long. A party who informs the court of the

“action” he “wishes the court to take”

ordinarily brings to the court’s attention his

objection to a contrary decision. That is

certainly true where, as here, the defendant

advocates for a sentence shorter than the

one actually imposed. Judges, having in

mind their “overarching duty” under

§3553(a) “to ‘impose a sentence sufficient,

but not greater than necessary,’ to serve the

purposes of sentencing,” would ordinarily

understand that a defendant in that

circumstance was making the argument that

the shorter sentence would be “ ‘sufficient’ ”

and a longer sentence “ ‘greater than

necessary.’ ”. Nothing more is needed to

preserve a claim that a longer sentence is

unreasonable. Defendants need not also

refer to the “reasonableness” of a sentence.

Rule 51 abolished the requirement of

making formal “exceptions” to a district

court’s decision. And, in any event,

reasonableness pertains to the standard of

“appellate review” of a trial court’s

sentencing decision, Gall v. United States,

552 U. S. 38, 46 (emphasis added); it is not

the substantive standard that trial courts

apply under §3553(a). A defendant who, by

advocating for a particular sentence,

communicates to the trial judge his view

that a longer sentence is “greater than

necessary” has thereby informed the court

of the legal error at issue in an appellate

challenge to the substantive reasonableness

of the sentence.

SUPREME COURT OF CANADA

12. Nevsun Resources Ltd. v. Gize

Yebeyo Araya

2020 SCC 5

https://www.canlii.org/en/ca/scc/doc/2020/2020scc

5/2020scc5.html

Coram

R. Wagner C.J. and R.S. Abella, M.J.

Moldaver, A. Karakatsanis, C. Gascon, S.

Côté, R. Brown, M. Rowe and S.L. Martin

JJ.

Modern concept of International law

The Court observed: “The rapid emergence

of human rights signifies a revolutionary

shift in international law to a human-centric

conception of global order. International law

now works not only to maintain peace

between states, but to protect the lives of

individuals, their liberty, their health, and

their education. The context in which

international human rights norms must be

interpreted and applied today is one in

which such norms are routinely applied to

private actors. It is therefore not plain and

obvious that corporations today enjoy

blanket exclusion under customary

international law from direct liability for

violations of obligatory, definable, and

universal norms of international law.”

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COURT OF APPEAL, SINGAPORE

13. China Machine New Energy

Corporation v. Jaguar Energy

Guatemala LLC

[2020] SGCA 12

https://www.supremecourt.gov.sg/docs/default-

source/module-document/judgement/-2020-sgca-

12-pdf.pdf

Coram

Sundaresh Menon CJ, Tay Yong Kwang JA

and Quentin Loh J

Belated objection as to a fatal failure in the

process of arbitration

The appellant sought to set aside an arbitral

award on the basis that it was obtained in

breach of natural justice. The appellant’s

case was that the arbitral tribunal’s

mismanagement of the arbitral proceedings

– in particular, its procedural decisions

relating to the document production process

and the submission of expert evidence –

resulted in its being denied a reasonable

opportunity of presenting its case.

The Court observed, “[I]f a party intends to

contend that there has been a fatal failure in

the process of the arbitration, then there

must be fair intimation to the tribunal that

the complaining party intends to take that

point at the appropriate time if the tribunal

insists on proceeding. This would ordinarily

require that the complaining party, at the

very least, seek to suspend the proceedings

until the breach has been satisfactorily

remedied (if indeed the breach is capable of

remedy) so that the tribunal and the non-

complaining party have the opportunity to

consider the position. This must be so

because if indeed there has been such a fatal

failure against a party, then it cannot simply

“reserve” its position until after the award

and if the result turns out to be palatable to

it, not pursue the point, or if it were

otherwise to then take the point. After all,

the requirement of a fair process avails both

parties in the arbitration and to countenance

such hedging would be fundamentally

unfair to the process itself, to the tribunal

and to the other party. In the final analysis, it

is a contradiction in terms for a party to

claim, as CMNC now does, that the

proceedings had been irretrievably tainted

by a breach of natural justice, when at the

material time it presented itself as a party

ready, able and willing to carry on to the

award. If a party chooses to carry on in such

circumstances, it does so at its own peril.

The courts must not allow parties to hedge

against an adverse result in the arbitration in

this way.”

HIGH COURT OF AUSTRALIA

14. Kadir v. the Queen; Grech v. the

Queen

[2020] HCA 1

http://eresources.hcourt.gov.au/downloadPdf/2020

/HCA/1

Coram

Kiefel CJ, Bell, Keane, Nettle and Edelman

JJ

Admitting evidence obtained in deliberate

defiance of the law

Section 138 of the Evidence Act 1995

(NSW) relevantly provides that evidence

obtained improperly or in contravention of

an Australian law, or in consequence of such

an impropriety or contravention, is not to be

admitted unless the desirability of admitting

the evidence outweighs the undesirability of

admitting evidence that has been obtained in

the way in which the evidence was obtained.

The appellants were jointly charged with

acts of serious animal cruelty. At the trial,

the respondent proposed to tender seven

videos covertly recorded at Mr Kadir's

property by Animals Australia in

contravention of s. 8(1) of the Surveillance

Devices Act 2007 ("the surveillance

evidence"); material obtained as a result of

the execution of a search warrant ("the

search warrant evidence") and certain

alleged admissions made by Mr Kadir ("the

admissions"). Each of these categories of

evidence was obtained in contravention of

Research Centre

Supreme Court of Pakistan

www.supremecourt.gov.pk 11/13

an Australian law or in consequence of such

a contravention.

The appellants applied to have the

surveillance evidence, the search warrant

evidence, and, in Mr Kadir's case, the

admissions, excluded pursuant to s. 138 of

the Evidence Act and following a voir dire

hearing, the trial judge excluded all three

categories of evidence. The respondent

appealed to the Court of Criminal Appeal,

contending, among other grounds, that the

trial judge failed to properly assess the

difficulty of obtaining the evidence without

contravening an Australian law, being a

relevant factor under s. 138(3)(h). The Court

of Criminal Appeal found that the difficulty

of lawfully obtaining the evidence "tip[ped]

the balance" in favour of admitting the first

recording of the surveillance evidence, but

that once the first recording was obtained,

Animals Australia might have approached

the authorities with a view to further

evidence being obtained by lawful means,

with the result that s 138(1) required

exclusion of the balance of the recordings.

The Court of Criminal Appeal also held that

the trial judge erred in his analysis of the

admissibility of the search warrant evidence

and the admissions in failing to take into

account material differences in the "way"

these categories of evidence were obtained

as compared to the surveillance evidence,

and determined that the search warrant

evidence and the admissions were also

admissible.

By grant of special leave, the appellants

appealed to the High Court. The Court held

that the basis upon which the parties and the

courts below approached s 138(3)(h) was

misconceived: demonstration of the

difficulty of obtaining the evidence lawfully

did not weigh in favour of admitting

evidence obtained in deliberate defiance of

the law. The trial judge's conclusion that all

of the surveillance evidence should be

excluded was correct. The High Court

proceeded to re-determine the admissibility

of the search warrant evidence and the

admissions according to law and found that

the Court of Criminal Appeal was correct to

conclude that the search warrant evidence

and the admissions were admissible. The

causal link between the contravention and

the admissions was tenuous, which affected

the weighing of the public interest in not

giving curial approval or encouragement to

unlawful conduct. In the result, the appeals

were allowed in part, with the effect that all

of the surveillance evidence is inadmissible

in the appellants' trial, but the search

warrant evidence and the admissions are

admissible.

PAPUA NEW GUINEA SUPREME

COURT OF JUSTICE

15. COVEC (PNG) Limited v. Peter

Kama

[2020] PGSC 9

http://www.paclii.org/countries/pg_recent_update

s.shtml

Coram

Kandakasi DCJ, Kassman & Toliken JJ

Restitution of the unjustly gained benefit

The Appellant entered the Respondent’s

land, erected a stone crushing plant,

extracted sand, gravel and stones from the

land and processed that material through the

crushing plant and used the products in

rehabilitation work on the Highlands

Highway. The Respondent successfully

obtained judgement for damages for the

value of the sand, gravel and stones

extracted and used by the Respondent for its

economic gain and a further amount in

exemplary damages. The Appellant claimed

the award of damages was made without

foundation in the Respondent’s pleadings or

evidence and there was no basis for the

award of exemplary damages.

The Court held that the actions of the

Appellant were acts of “trespass” and

“conversion” as the Appellant willfully

entered the Respondent’s land and extracted

valuable sand, gravel and stone deposits

from the Respondent’s land and processed

those materials which were then used by the

Appellants in its work on the Highlands

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Supreme Court of Pakistan

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Highway. The Appellant dealt with the

Respondent’s chattels in a manner

inconsistent with the Respondent’s rights

and the Respondent deprived the Appellant

the use and possession forever of its chattels.

The Respondent was entitled to make a

claim against the Appellant for restitution of

the unjustly gained benefit. Firstly, the

Appellant was enriched by the receipt of the

benefit being the valuable mineral deposits

which were processed in the crusher plant

the products of which were then used by the

Appellant in its work on the Highlands

Highway. Secondly, that benefit was gained

by the Appellant at the Respondent’s

expense. Thirdly, it is unjust to allow the

Appellant to retain that benefit.

FEDERAL CONSTITUTIONAL COURT

OF GERMANY

16. In the proceedings about the

constitutional complaint of Dr. E…

2 BvR 1333/17

https://www.bundesverfassungsgericht.de/Shared

Docs/Pressemitteilungen/DE/2020/bvg20-013.html

Coram

President Voßkuhle, Huber, Hermanns,

Miller, Kessal-Wulf, King, Maidowski,

Langenfeld

Principles of the ideological-religious

neutrality of the state and the functionality

The complainant was a legal trainee in the

State of Hesse. She wears a headscarf in

public. Before the start of the training, the

Higher Regional Court informed her with a

notice that, according to the Hessian legal

situation, legal clerks in legal preparatory

service had to be religiously neutral towards

citizens and therefore they were not allowed

to carry out any activities with a headscarf

where they acted as representative Justice or

the state could be exercised. Against the

relevant administrative practice, the

complainant submitted an application for

interim legal protection to the administrative

court, which the Hessian Administrative

Court rejected in the appeal body.

The Second Senate of the Federal

Constitutional Court rejected the

constitutional complaint by a Hessian legal

trainee against the ban on wearing a

headscarf for certain official activities. The

decision of the legislature for a duty to

behave neutrally in ideological-religious

terms in the legal clerkship is to be

respected from a constitutional perspective.

Although this obligation constitutes an

interference with the complainant's freedom

of belief and other fundamental rights, this

is justified. The principles of the

ideological-religious neutrality of the state

and the functionality of the administration

of justice as well as the negative religious

freedom of third parties come into

consideration as justifying constitutional

goods.

(Note: The German Constitutional Court is

made up of two senates, each with eight

members. The Vice President is currently

Chairman of the First Senate, the President

is Chairman of the Second Senate. In both

senates there are several chambers with

three members each. The above-referred

case was heard by the Second Senate

consisting of 8 Judges including the

President of the German Constitutional

Court.)

CONSTITUTIONAL COURT OF

SOUTH AFRICA

17. National Director of Public

Prosecutions v Botha N.O. and

Another

[2020] ZACC 6

https://www.concourt.org.za/index.php/judgement

/358-national-director-of-public-prosecutions-v-

botha-no-and-another-cct280-18

Coram

Mogoeng CJ, Froneman J, Jafta J,

Khampepe J, Madlanga J, Mhlantla J,

Theron J and Victor AJ

Constitutional protection of property rights

and forfeiture of property acquired

through unlawful means

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Supreme Court of Pakistan

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The minority judgment held that unlawful

proceeds within the meaning of section

50(1)(a) of Prevention of Organised Crime

Act 121 of 1998 (POCA), do indeed fall

within [the scope of the term “property”

used in] section 25(1) of the Constitution. It

held that to protect only lawfully acquired

property would go against the textual grain

of section 25. It held that there is no a priori

requirement of lawfulness for determining

whether the property in question is protected

by section 25(1). The provenance of the

enjoyment of the right is not a prerequisite

for the enjoyment of the legal protection of

non-arbitrariness which section 25(1)

confers. The minority judgment noted

further that section 25(1) does not confer the

right to property in and of itself, it rather

protects one from arbitrary state interference.

The minority judgment held that once the

threshold of establishing that the property is

an instrumentality of an offence has been

met, a court is required to carry out a

proportionality analysis to determine

whether the forfeiture would be

disproportionate. It would be artificial and

technical to have a separate approach to the

forfeiture of property characterised as

proceeds and property characterised as the

instruments, of an offence. Section 25(1) of

the Constitution inexorably leads to a

balancing act, which compares the ends (the

statutory goal of preventing an individual

from benefitting from corruption) and the

means (the forfeiture of property). A

forfeiture order that is disproportionate will

be arbitrary.

The majority judgment, however, held that it

was unnecessary to determine whether the

proceeds of crime in this matter amounted

to property envisaged in section 25(1) of the

Constitution. It further held that all that

needed to be done was to enquire into the

forfeiture order granted so as to determine

whether it was arbitrary, which could be

done by looking at relevant provisions of

POCA. On the issue of proportionality, the

majority judgment held that it was

inappropriate to apply the proportionality

analysis in the case of a forfeiture of

proceeds of a crime in circumstances where

the person from whom the proceeds were

taken did not have any interest which was

lawfully recognised.

SUPREME COURT OF INDIA

18. Union of India v. M.V. Mohanan

Nair

https://main.sci.gov.in/supremecourt/2014/14117/1

4117_2014_5_1501_21165_Judgement_05-Mar-

2020.pdf

Before

Justice R. Banumathi, Justice A.S. Bopanna

and Justice Hrishikesh Roy

Unreasoned decision---precedential value

Explaining Article 141 of the Constitution

of India which provides that the law

declared by the Supreme Court shall be

binding on all courts within the territory of

India the Court observed, “Law declared by

the Supreme Court has to be essentially

understood as a principle laid down by the

court and it is this principle which has the

effect of a precedent. A principle as

understood from the word itself is a

proposition which can only be delivered

after examination of the matter on merits. It

can never be in a summary manner, much

less be rendered in a decision delivered on

technical grounds, without entering into the

merits at all. A decision, unaccompanied by

reasons can never be said to be a law

declared by the Supreme Court though it

will bind the parties inter-se in drawing the

curtain on the litigation.”

Disclaimer--The summary of the legal points

decided in the judgements has been given for

convenience of the reader. Please read the original

judgement before referring it to for any purpose.

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