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Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Approach iro Limitation to the Right of Appeal

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS
Ruled By: PATEL J

Article 12 of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15], provides as follows:“(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An ...
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HH59-09 : TRUST CORPORATION SECURITIES (PRIVATE) LIMITED vs L.M. GABILO and DEVORGILLE KATSANZA
Ruled By: UCHENA J

Article 13 of the Arbitration Act [Chapter 7:15] provides as follows:“(1) The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of para (3) of this article.(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after ...
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HH58-12 : ASHANTI GOLDFIELDS ZIMBABWE LIMITED t/a FREDA REBECCA MINE vs JOACHIM C NGUWO
Ruled By: MUTEMA J

On 29 March 2011 I dismissed, unconditionally, an application for summary judgment by the applicant.On 4 May 2011, I dismissed a chamber application for leave to appeal to the Supreme Court against the order dismissing the application for summary judgment. The application for the leave to appeal had been made ...
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HH35-08 : BRETT LEONADES PISSAS vs HELEN LOUISE PISSAS
Ruled By: GOWORA J

In terms of section 43 the High Court Act [Chapter 7:06] appeals from the court are provided for as follows:“1. Subject to this section, an appeal in any civil case shall lie to the Supreme Court from any judgment of the High Court, whether in the exercise of its original ...
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HH27-08 : EDSON NYAMAPFENI vs CONSTITUENCY REGISTRAR MBERENGWA EAST and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE and DOUGLAS MOMBESHORA and CLEVER KUGOTI
Ruled By: UCHENA J

Section 46(19)(c) of the Electoral Act [Chapter 2:13]..., provides as follows -“If no appeal, in terms of paragraph (b), is lodged within four days after the receipt of notice of the decision of the nomination officer, the right of appeal of the candidate shall lapse and the decision of the ...
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HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

Subsection (7) of section 67A of the Electoral Act [Chapter 2:13] provides as follows:“(7) The Commission's decision on whether or not to order a recount, and, if it orders one, the extent of the recount, shall not be subject to appeal.”The fact that the Zimbabwe Electoral Commission's decision to recount, ...
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SC23-14 : THE ATTORNEY GENERAL vs ALEC MUCHADEHAMA and CONSTANCE GAMBARA
Ruled By: MALABA DCJ

This matter was placed before me in chambers as an application for condonation and extension of time within which to appeal from a decision of a judge of the High Court. The decision refused leave to appeal to that court from a decision of a magistrate discharging the respondents of a criminal charge at ...
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SC23-14 : THE ATTORNEY GENERAL vs ALEC MUCHADEHAMA and CONSTANCE GAMBARA
Ruled By: MALABA DCJ

It is necessary to consider the meaning of the terms of the provisions of section 198(4)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] and take into account the purpose of the section. The consideration leaves no doubt in the mind that giving a right to appeal from a decision of a judge ...
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CC08-15 : DON NYAMANDE and KINGSTONE DONGA vs ZUVA PETROLEUM
Ruled By: ZIYAMBI JCC

Counsel for the applicants submitted that the applicants derive their right of appeal from section 167(5)(b) as read with section 169(1) of the Constitution. The provisions are set out hereunder. Great emphasis was placed on the underlined words. “167 Jurisdiction of Constitutional Court (1) – (4)…,. (5) Rules of the Constitutional Court must allow a person, ...
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CC13-16 : LIVERA TRADING (PRIVATE) LIMITED and SIMON RUDLAND and SARAH RUDLAND vs TORNBRIDGE ASSETS LTD and CUT RAG PROCESSORS (PVT) LTD and THE SHERIFF OF THE HIGH COURT N.O.
Ruled By: ZIYAMBI JCC

In Chambers in terms of Rule 32(12) of the Constitutional Court Rules, 2016. On 2 September 2016, the High Court (MTSHIYA J) granted a provisional order in favour of the respondents in the following terms:-“IT IS ORDERED THAT:1. The 1st, 2nd and 3rd respondents and any person acting through them be and are ...
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HB28-14 : DHERERAI MANYONI vs COMMISSIONER GENERAL OF POLICE and CHIEF SUPERINTENDENT KUNENE and CO-MINISTERS OF HOME AFFAIRS
Ruled By: MOYO J

On the appeal route, though, the decision of the Commissioner General of the Police is not appealable to this court in terms of the Police Act [Chapter 11:10] as read with section 34(1) of the High Court Act [Chapter 7:06].
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HH631-15 : GOLDEN REEF MINING (PRIVATE) LIMITED and FERBIT INVESTMENTS (PRIVATE) LIMITED vs MNJIYA CONSULTING ENGINEERS (PTY) LIMITED and THE SHERIFF
Ruled By: MAFUSIRE J

Section 43(2) of the High Court Act [Chapter 7:06] reads as follows:“(2) No appeal shall lie -(a)…,.(b)….,.(c)…,.(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge or, if that has been refused, without the leave of a judge of ...
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HH36-15 : LEE WAVERLY JOHN vs PRINCIPAL IMMIGRATION OFFICER and CO-MINISTERS OF HOME AFFAIRS
Ruled By: MUSAKWA J

Section 21(1), (2) and (3) of the Immigration Act [Chapter 4:02] reads as follows:- “(1) Subject to subsection (2), subsection (2) of section eighteen and section twenty-two, any person who receives notice in writing in terms of paragraph (a) of subsection (4) of section eight that leave to enter Zimbabwe has been refused or that ...
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HH676-15 : CONSTABLE TAMANIKWA vs BOARD PRESIDENT (CHIEF SUPERINTENDENT BALENI) and THE COMMISSIONER GENERAL OF POLICE
Ruled By: MATHONSI J

Section 70(5) of the Constitution, in terms of which the applicant has appealed to the High Court, provides: “Any person who has been tried and convicted of an offence has the right, subject to reasonable restrictions that may be prescribed by law, to – (a) Have the case reviewed by a higher court; or (b) Appeal to a higher court ...
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HH65-12 : CHARWADZA MADZWAWAWA vs ROSEMARY VAMBE
Ruled By: GUVAVA J and MAWADZE J

There are only two issues which exercised our minds and therefore fall for determination in this appeal. There are; 1. Whether an appeal lies against the judgment appealed in view of the fact that the Domestic Violence Act [Chapter 5:16] (DVA) makes no provision in respect of appeals….,. Whether or not an appeal lies against the judgment appealed? It is common ...
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HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP and CHAREWA J

Section 33(2) of the Police Act [Chapter 11:10] gives the right to appeal to the High Court only to members convicted of a disciplinary offence by a Board of officers, not by a single trial officer. It is thus clear that an appeal from a single trial officer only lies to the Commissioner General of ...
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HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP and CHAREWA J

Section 171(1)(b) and (d) of the Constitution gives the High Court power “…, to supervise magistrates courts and other subordinate courts and to review their decisions;” and to sit as an Appellate Court as mandated by an Act of Parliament. Thus, section 171(1)(b) gives unlimited power to the High Court to review decisions of subordinate courts, while ...
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SC67-19 : DANIEL CHINTENGO vs TREDCOR ZIMBABWE (PRIVATE) LIMITED t/a TRENTYRE ZIMBABWE
Ruled By: MALABA CJ, GUVAVA JA and BERE JA

Having determined that the judgment which was handed down by the court a quo was a default judgment, the question that obtains is whether the appellant could properly appeal against it. At law, one cannot appeal against a default judgment. Rather, the proper procedure is for the aggrieved party to seek rescission of the judgment. This position was laid ...
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SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision. The following facts are common cause. The respondent sued for and was awarded damages by the ...
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SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

I. INTRODUCTIONIn August 1999, three nationals of the United States of America, Gary George Blanchard, Joseph Wendell Pettijohn, and John Lamonte Dixon, were jointly indicted with the commission of two offences:(i) The first was a contravention of section 7(1)(a) of the Aircraft (Offences) Act [Chapter 9:01], as read with section ...
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HH152-10 : MARATHON GROUP OF COMPANIES T/A HARRISON AND HUGHSON (PVT) LTD vs ALSTOM ZIMBABWE (PVT) LTD and MESSENGER OF COURT, HARARE
Ruled By: MUTEMA J

This is an urgent chamber application for a provisional order whose interim relief sought was couched in these terms:“1. That the second respondent be and is hereby ordered to stay ejectment of applicant from the premises known as 93 Coventry Road, Harare pending the hearing of this urgent application for ...
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Appealed
SC03-18 : CHRISTOPHER SAMBAZA vs AL SHAMS GLOBAL BVI LIMITED
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

Section 43(1) of the High Court Act [Chapter 7.06] provides as follows: “(1) Subject to this section, an appeal in any civil case shall lie to the Supreme Court from any judgment of the High Court, whether in the exercise of its original or its appellate jurisdiction.”
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HH65-12 : CHARWADZA MADZWAWAWA vs ROSEMARY VAMBE
Ruled By: GUVAVA J and MAWADZE J

There are only two issues which exercised our minds and therefore fall for determination in this appeal. There are; 1. Whether an appeal lies against the judgment appealed in view of the fact that the Domestic Violence Act [Chapter 5:16] (DVA) makes no provision in respect of appeals….,. Whether or not an appeal lies against the judgment appealed? It is common ...
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CC09-19 : SIMON SHONHAYI DENHERE vs MUTSA DENHERE (nee MARANGE) and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ and GWAUNZA DJC and BERE JCC

It is only an Appeal Court that can make a declaration on the correctness or otherwise of a judgment. In the absence of the right to appeal, the judgment cannot be said to be wrong. Just because a party thinks a judgment is wrong, that does not make it so. No judicial authority can pronounce on ...
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HH192-10 : AEPROMM RESOURCES (PVT) LTD vs SAMUEL MAZOWE and PATTERSON TIMBA and STEVENSON TIMBA and MAGGIE DITIMA and TONDESAI KAPONDO
Ruled By: MTSHIYA J

On 20 August 2010, I dismissed this application with costs. The applicant has now placed before me a written request for the full reasons behind my dismissal of its application. The applicant says it needs the reasons because it intends to file an appeal in the Supreme Court urgently.I give ...
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Appealed
CC04-19 : ITYAI NKOMO and THEMBINKOSI NYATHI and NICHOLAS KHUMBULA TSHILI vs T. M. SUPERMARKETS (PRIVATE) LIMITED
Ruled By: MALABA CJ and GOWORA JCC and HLATSHWAYO JCC

Section 169(1) of the Constitution provides that the Supreme Court is the final court of appeal for Zimbabwe except in matters over which the Constitutional Court has jurisdiction. In Rushesha Ors v Dera Ors CC24-17…, the Court emphasised the fact that there is no right of appeal from a subordinate court on a non-constitutional matter. ...
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SSC07-21 : CAINOS CHINGOMBE vs THE STATE
Ruled By: MAKONI JA

This is an appeal against refusal of bail by the High Court handed down on 21 January 2021. The appeal is made in terms of Rule 67(1) of the Supreme Rules, 2018 (the Rules) as read with section 121(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPEA).WHETHER ...
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HHB226-16 : ALPHONSUS ACHINULO vs W. MAPHIOS MOYO N.O. and THE STATE
Ruled By: MATHONSI J

As stated in Mukwemu v Magistrate Sanyatwe N.O. and Another HH765-15…, it is a necessary feature of every system of adversarial administration of justice that there should be a higher court in the hierarchy to correct judicial errors.
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HHH765-15 : JOSPHAT MUKWEMU vs MAGISTRATE SANYATWE N.O. and THE PROSECUTOR GENERAL
Ruled By: MATHONSI J

Indisputably, it is a necessary feature of every system of adversarial administration of justice that there should be a higher court in the hierarchy to correct judicial errors and to curb the excesses of judicial officers...,. Such errors should be capable of being corrected, reversed or varied at a higher ...
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SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council]
Ruled By: GUVAVA JA

This is an application for leave to appeal from a judgment of the Labor Court. The court a quo found no merit in the application for leave to appeal and dismissed it, on the main, that, the draft notice of appeal did not raise questions of law.The applicant was dissatisfied ...
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SC64-21 : PATRICK MANJOVHA vs DELTA BEVERAGES (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, HLATSHWAYO JA and BHUNU JA

This is an appeal against the whole judgment of the Labour Court (the court a quo). The order appealed against is dated 14 November 2018.That order upheld the respondent's objection in limine to the effect that the appellant's claim had prescribed.Consequently, it dismissed the appellant's application for condonation of late ...
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SC21-18 : EASTER MZITE (as Executrix Dative Estate Late Chemayi Joseph Mtize) vs DAMAFALLS INVESTMENTS (PVT) LTD and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA

This is an application for condonation and extension of time within which to note an appeal in terms of Rule 31(3) of the Supreme Court Rules 1964.The applicant is the widow of the late Chemayi Joseph Mtize. She is the duly appointed executrix dative of his deceased estate.The first respondent, ...
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SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

This is an appeal against the entire judgment of the Labour Court sitting at Gweru dated 12 March 2013 dismissing the appellant's application for condonation for leave to file his appeal out of time.BACKGROUNDAlthough the facts of this matter are mainly common cause, it is necessary to set them out ...
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SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

This is an opposed application for condonation of late noting of an appeal and extension of time within which to file a notice of appeal. The applicant brings the application in terms of Rule 43 of the Rules of Court 2018.THE PARTIESThe first applicant is a former employee of the ...
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CC06-21 : RITA MBATHA vs NATIONAL FOODS (PRIVATE) LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

This is an application for leave to appeal to the Constitutional Court (“the Court”) against a decision of the Supreme Court (“the court a quo”) made in terms of Rule 32(2) of the Constitutional Court Rules 2016 (“the Rules”).The premise on which the application is based is that the decision ...
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CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

This is an opposed application for leave to appeal against a decision of the Supreme Court (“the court a quo”) made in terms of section 167(5)(b) of the Constitution as read with Rule 32(2) of the Constitutional Court Rules 2016 (“the Rules”).FACTUAL BACKGROUNDThis application emanates from an election petition lodged ...
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CC05-22 : GOVATI MHORA vs EMMACULATA MHORA
Ruled By: PATEL JCC

Rule 32(2) of the Constitutional Court Rules provides the following on the right of appeal to this Court:“(2) A litigant who is aggrieved by the decision of a subordinate court on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the ...
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CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.Using ...
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CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

As was held in Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…,:“If the subordinate court had no constitutional matter before it to hear and determine, no grounds of appeal can lie to the Constitutional Court, as a litigant cannot allege that the subordinate court ...
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CC03-19 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS ZIMBABWE and CAIRNS FOODS LTD
Ruled By: MALABA CJ, GARWE JCC and MAKARAU JCC

This is a chamber application for leave to appeal, condonation for late filing of the application for leave to appeal, and exemption from security for the respondents costs.The applicant was formerly employed by the third respondent. Sometime in 2004 he obtained judgment in the Labour Court, awarding him damages for ...
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HMA06-19 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: MAFUSIRE J

This judgment is given in default of appearance by the respondents. I am much concerned by the conduct of the officials from the office of the Attorney General, the second respondent herein.This was an opposed application.The respondents, through the Attorney-General, filed a notice of opposition. The record indicates, that, the ...
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SC57-18 : DRUM CITY (PRIVATE) LIMITED vs BRENDA GARUDZO
Ruled By: GWAUNZA DCJ, MAKARAU JA and MAKONI JA

This is an appeal against the decision of the Labour Court confirming the draft ruling of the respondent, a labour officer. The ruling was in favour of the appellant's former employee, Ms Umarah Khan whose contract of employment was summarily terminated as from 15 April 2015 on allegations of certain ...
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HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE
Ruled By: MUZENDA J

On the 4th July 2018, the applicant (Ruben Zimondi) filed an application seeking the following relief:“IT IS ORDERED THAT:1. It is declared that the discharge of the applicant herein, wherein he held the rank of Superintendent, be and is hereby declared unlawful.2. The 1st respondent be and is hereby ordered ...
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