Research Centre

Supreme Court of Pakistan

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

www.supremecourt.gov.pk 1/13
 Research Centre
Supreme Court of Pakistan

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
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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
3/13

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
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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
4/13

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
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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
5/13

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.
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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
6/13

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,
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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
7/13

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
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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
8/13

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
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Supreme Court of Pakistan
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.”
9/13

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
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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
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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
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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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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.
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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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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
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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.”
Contact Info:
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Supreme Court of Pakistan
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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