Sunday, 15 July 2012

How socialite Bad black and Meddie Ssentongo lost case Brief facts Shanita Namuyimbwa[badblack], 21, is charged with embezzling Shs11bn from Davishan Development Company,which she co-owned with her 53-year-old British lover, David Greenhalgh. Namuyimbwa and co- accused Meddie Ssentongo jointly face two counts of conspiracy to defraud the company of $9bn and $1.77bn respectively. The two pleaded not guilty to the charges in the Anti-Corruption Court. At its initial stages every one thought Bad black was innocent,the pressing wrapping up the assessors opinions and the fictious story told by badblaack that one David the plaintiff was a liar ,that the company he claims to exist has never been and that Davishan development company was a sham and the bank account in the aforesaid names was a love account for the two and Davi stood for David the plaintiff and shan stood for shanita[bad black]. Every one nearly believed the story but now trouble came in the second session where the prosecution was advised to prove all the charges against bad black and meddie sentongo beyond reasonable doubt as it is required at law in criminal cases and the prosecution went ahead On Count No. 1 is the offence of embezzlement c/s 19(b). The relevant law provides as follows: In order to prove the offence of embezzlement as charged, the prosecution is required to prove the following ingredients beyond reasonable doubt. 1. That the person is a director, officer or employee of a company or corporation. 2. That the person steals a chattel, money or valuable security. 3. That the person receives or takes into his possession by himself such chattel, money or valuable property on account of his employment However before court went into the ingredients of the offence ,it addresed the contentious issue of whether Davishan Developmaent company existed and was proved David was possesion of a certificate of incorporation to which according to s.16 of the companies is conclusive proof that a company exists and this can't be challenged in either way though most of the other hitherto documents like the memo and articles of asssociation had irrregularities but this couldn't legally help. Now the issue was wether badblack was a director in the company,the issue was held in affirmative and it was held the regardless of the express appointment badlack was the director of the company as this was to be implied from her participation in its registration and that David too was a share holder as his lawyer was acting on his behalf in the registration process,on wether money or chattel was stolen ,this seemed obvious as bad black testified withdrawing moneI from the company acccount yet David hsd opened ip for her a personal account so her claims of love account simanya remained toothless and on the third ingredient it was also clear that shanita accessed the funds by virtue of her being a director and what used the money for wasn't inline with the company objectives. So the offence of embezzlement was proved On count 2 of conspiracy to defraud contrary to s.309 of the penal code . Shanita and Meddie are jointly indicted for conspiracy to defraud. To secure a conviction for conspiracy, the prosecution must prove that there were two or more persons involved. There cannot be conspiracy without the involvement of at least two people. It must also be proved beyond reasonable doubt that these persons agreed to pursue a course of conduct with intent to perform an unlawful thing, even if that unlawful purpose is impossible to achieve .In this case the meddie held out to be a manager of the company and he indeed contacted some engineer and informed him on to work out the costs of a hotel project and also to draft all the necessary plans infact this was aimed at making David belief that business waI moving on so that he can send more more though he didn't send it this was immaterial. more so badblack on opening up the bank account he was in company with meddie,,lastly all evidence of money withdraws pointed out that whenever David could send money on the company account the very sum would be withdrawn and deposited on meddie's account and this could never have been a coincidence.

Thursday, 12 April 2012

A critical analysis of the Attorney General's decision to ban A4c and its grave impact on to the citizens due on its enforcement

Last week on April 4 , the Attorney General (AG) of Uganda issued a statutory instrume- nt banning apolitical group, Activists for Change(A4C).
The A4C is a pressure groupthat came to prominence in April2011.The A4C organi- sed various protests in Uganda mainly in response to econom- ic hardships and what A4C called waste by the Uganda government.
For the biggest part of 2011, A4C organiz- ed protests mainly Walk to Work and Hooting inter alia

Though the activists claim theirs to be peaceful protests, the protests often end in confrontation with the Uganda Police/Army with causalities on both sides and Where ar the state has given less prominence to those killed in various protests including the 3 year old Abigail Nalwanga shot by police during similar protests more attention has been given to the death of a police
officer AIP Ariong killed in March during similar confrontations. Reaction to AIP Ariong’s death was
mixed, with people on both sides of the political divide seeking to capitalize on the death. First was the opposition who claimed that Ariong was shot by a fellow policeman/woman and an independent inquiry be done.Government refused these demands,went ahead to burry Ariong without satisfying curious Ugandans who believe the theory raised by the opposition.The government then moved to capitalize on Ariong’s death,first by the Assistant Inspector of Police (AIGP) claiming that the battle line has been drawn (presumably between Ugandans and the Uganda police) and a call for revenge in the force.This was followed by statements by the president and other big wigs in the ruling National Resistance Movement (NRM) on how government will be high handed in its handling protests. The banning of the A4C by the AG is part of the legal and none legal methods government intends to apply to control dissenting views.This comes at the expense of constitutional and other legal guarantees in Uganda. The AG evoked powers granted to himby S. 56(1) and (2)(c) of the PenalCode Act cap 120 (PCA).
Before I get into the legalities of the AG’s action, let me give a brief background of the PCA. The present PCA was adopted on 15 June 1950. This was part of the various colonial laws introduced to
control uprisings in Uganda after it had been used in India in the 1920s.The main focus of the PCA (specifically part VIII) was to control uprisings by Africans demanding for self rule. At the time it was introduced Uganda had several uprisings for independence.
The colonial government used the criminal law regimes to control dissent such as control of the Busuulu and Envojjo revolts in 1930s and the arrest and charging of those who took part in the economic boycotts of 1950s and the subsequent deportation of the King of Buganda in 1950. It should be noted that the legal and military regime used to control discontent resulted in more motivated leaders who formed the first political parties in Uganda and increased demand for self rule. The post colonial governments kept this part of the PCA to control discontent as was seen during Obote and Amini regimes that used it to ban all forms of political and other associations including trade unions.
Over 30 years since it was last used the AG resurrects the dreaded part VIII of the PCA to ban the A4C. The actions by the AG have grave consequences not only to members of A4C but the general populace who may relate with members of A4C for any reason.

S. 59 of the PCA defines a society as a group of two or more persons, whether known by name or
not.
S. 59(2) gives conditions for which such a society can be banned, however S. 59(2)(c) gives the AG
powers to declare a society unlawful without giving any reason.
The Ban by the AG means A4C and its members shall not associate with anyone anywhere in Uganda. Since A4C is not a registered organization or has formal structures, government may have to target individuals suspected to be belonging to A4C. The danger with this is any person that police deems to be a member of A4C will be prohibited from associating with any person (possibly including family members and friends) and may be arrested and charged for being a member of an unlawful society.

Under S. 58 of the PCA a person who allows a meeting with a member of a group banned by AG commits an offence. This means hotels, owners of public places; landlords etc are under obligation to ensure suspected A4C members do not meet in their premises. This effectively extends the ban to other persons who have nothing to do with A4C and promotes mob hunting and discrimination of suspected A4C members in an attempt to isolate them. Related to the above is a provision in
S.58 which is to the effect that; 58(c) Any person who utters any speech or prints,publishes, sells, offers or exposes for sale or distributes any publication as defined by section 33, which, in the opinion of the court is likely or calculated to encourage the support of an unlawful society, The above provision read with S. 33, means a member of the press or any person who covers, interviews, hosts, publishes, sells/distributes a newspaper with any kind of information on A4C can be held criminally liable. Generally the order by the AG affect the freedoms of speech, expression, assembly, press, thought, conscience and belief, freedom to assemble and to demonstrate together with others peacefully, the right to move freely in Uganda all guaranteed under article 29 of the Uganda Constitution.
The declaration also affects article 38(2) which provides for a right to participate in peaceful activities to influence the policies of government through civic organisations and article 21 which protects against any form of discrimination.
Article 274 of the Uganda Constitution provides that laws were in existance before the coming into force of the 1995 constitution shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the Constitution. In the same spirit Article 2 of the same constitution provides that the constitution is a supreme law and if any law is inconsistent with the constitution, the law is null and void to the level of its inconsistency. The constitutional court has over the years discussed the two principles and ruled several laws including sections of the PCA as unconstitutional. What the AG should have done is to propose amending and repeal the PCA instead of using them against Ugandans. This should save the country unnecessary resources to be spent in constitutional court petitions that will end with a declaration. In the face of the alleged threats by the A4C on peace and security in the country, the state has the obligation to arrest and prosecute all those suspected of violating public peace in line with existing laws. The police should investigate and arrest all those responsible for crimes related to demonstrations. This should be done not in revenge for what every reason but judiciarily. The state machinery should also prosecute those who committee the offences without discrimination of selection. This will remove the need for declaring particular individuals or organizations as illegal persons.

Thursday, 1 December 2011

could you save him if ur his attorney ,not even harvey spector could

FANCIFUL POSSIBILITIES

….If we are to protect the community, and then we must not let fanciful possibilities deflect the course of justice…. (Denning, J. Miller v Minister for Pensions)

His Lordship peered down his thick rimmed glasses at the young blustering lawyer. In his twenty years as a judge of the High Court, he had watched all sorts come and go- just fresh out of law schools and tying to impress by lecturing the court on Law. He admired their belief in the supremacy of the law and the optimism with which they rushed their clients under its protective wings. It was naïve really, as they soon realized. It was not enough to be on the right side of the Law. You needed to be on the right side of the Judge. The slip twixt the cup and lip in the process could be cured by generosity. The young Lawyers belief graduated into bitter realism and finally to resignation to the ills of the system.

And at that point his lordship Senyonga was always a disappointed man. He would have preferred them to stick to it and try to reform the system as he had done. He was a Christian reverend and believed that the Law was vox populi vox dei. It was a favorable topic of his – infact seven out of ten of his sermons treated this subject, sometimes so painstakingly that it soared into the realms subtle mysticisms. Being well intentioned the system was infallible, the Law sound. Let every man be subject to the Law, and if found wanting be accordingly punished. It is the voice of God, never mind the corrupt prophet. He would do his best to speak the voice of God with a sure voice, and woe betide thee if it spoke against you.

Now take for instance this young Lawyer, here, about twenty five years old, attempting to lecture the court and going off on a tangent in the process…

•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••

The fact was that four friends had been out on a moonlit night on a fishing trip, many miles out in the waters. Save for a slight swish as the oars swept back the waters and the crocodiles whose eyes glittered in the soft moonlight keeping up with the boat, there was no other sound. The crocodiles always dogged boats whose occupants frequently threw fish into the water as a form of sacrifice

Waiswa, one of the four friends had for some time suspected his colleague Wandera of maintaining an amorous relationship with his wife who he had recently discovered was pregnant. He was disgruntled and embittered as his many efforts to ensnare them in a compromising situation had borne no fruit. All he had to go on were rumours. Consequently the normally cheerful Waiswa of late maintained a sullen silence. Sudden bursts of ill-temper and a malevolent glare with which he constantly favoured Wandera.

Wandera on the other hand was aware of his friend’s ill-feelings towards him. True, he had had an affair with beautiful Teresa, but for heaven sake did not think himself responsible for the pregnancy. To tick off her many lovers one needed more than one hand. In any case the relationship had come to an abrupt end about four months ago. But that was not the only thing on his mind.

‘I hear,’ Wandera began tentatively, letting the statement hang like a piece of thread in the silence.

‘I hear Teresa is pregnant.’ Behind him Waiswa momentarily paused his rowing, gripping his lower lip in his teeth. It was a notorious rumour and the other two shifted uneasily. A boat in the middle of the lake with the crocodiles keeping company is not the best place to start a fight, but Waiswa ploughed on feigning oblivion of the fact.

‘I could swear the baby is not yours, it’s a pity how some people turn out…’

‘Will you shut up?’ Growled Wanjala between clenched teeth. He was reputed to be a no nonsense man, and at his intervention Wandera fell silent.

They rowed on in silence for another hour. Overhead the moon trailed and took refuge behind a cloud. Suddenly, behind him Wanjala heard a scuffle and turned round to see Wandera drop into the water with a splash, Waiswa standing over him. Wanjala asked him what had happened. The only reply was a blood curdling scream from the lake as the crocodile moved in for the kill and the only words they heard from Waiswa till he was arrested eight years later;

‘Let him die. It serves the fool right.’

They searched the whole night to no avail, save for the blood stained clothes found floating on the water. Waiswa disappeared the moment they touched shore and was arrested eight years later.

..•………………………………………………………………………………………….

‘My Lord, the prosecution has adduced evidence and failed to satisfy Court on two most important ingredients; that the deceased person is dead and that the accused person caused his death.’ The young blustering lawyer went on and on, unaware that the judge had long put down his pen. Even the prosecutor’s gently mocking smile was lost on him.

On and on went he, belabouring Court on the accused person’s innocence and the burden and standard of proof, extensively quoting both statute and case law till the good judge was obliged to cut in;

‘With due respect Counsel; don’t lecture the Court on law. We are sufficiently acquainted with it.’

And that is when he noticed it all, that only he carried the belief of the accused’s innocence, and that most probably he was going to hang. Waiswa was innocent, he had not pushed Wandera into the lake. But the people who had been in the boat had testified against him, even though they bore him no ill will. Counsel dropped his hands to his side and said;

‘At least think of the fact that the body was never found. The person could be alive somewhere…,’ the prosecutor laughed appreciatively as if it was a good joke. Not even the Counsel believed himself.

……………………………………………………………………………………

In his summing up the judge noted:

…I would wholeheartedly wish to believe in the innocence of the accused person,

But I can’t. The evidence against him is overwhelming….Regarding the defence

Counsel’s invitation to imagine the deceased person alive, it is nothing more than

That, an imagination, a fanciful possibility…we have seen the bloodstained

Clothes, heard his companions…of the malice he bore toward the deceased and

the attack on him an entire hour after the deceased had ceased his taunting…

It is more probable than not that the accused person is guilty of the murder of

Wandera Emmanuel.

Waiswa was found guilty and accordingly sentenced to hang. He was led out of court staring before him stoically, his lower lip trembling imperceptibly. In due course the mistake of Law was hoisted six feet above the ground.

………………………………………………………………………………………..

The day after the hanging while taking an afternoon nap, Wanjala’s fifteen year old son rushed up to him, looking like he had seen the devil himself. He dragged his father to the door and pointed at the gate, still stupefied. There was nothing there, except for a new TOYOTA RAV4 coming to a halt. The door opened and a crutch preceded followed by Wandera Emmanuel, whose murderer had hanged the previous day.

Wanjala’s jaw sagged, and his eyes nearly bobbed out of their sockets, he tried to swallow but came up against the bulk of his tongue. When he eventually found his voice he let out a scream heard for a mile around that brought the entire village to his compound, by which time he had barricaded himself in and could not be convinced to stir a foot outside.

The story came out, well a bit of it, for when he knew what had transpired he could not divulge everything. He had jumped into the lake, he had not been pushed, there had been no fight, he had swum to safety with the aid of a jerry can hidden on the boat and nobody had seen.

The reason for this was that a few days before a cousin of his had stolen a huge sum of money and kept it with him. Being unscrupulous he had exploited the bad blood between him and Waiswa to fake his death and cheat the cousin of his money. He had only come back when he got word of the cousin’s death.

The newspaper got wind of the story and ran it under the headline:

DECEASED PERSON OUTLIVES MURDERER

His Lordship read it and spent the whole morning in an agitated state of mind. He went home to his study at noon. The next day the newspaper ran another story under the headline:

THE LORD OF FANCIFUL POSSIBILITIES SHOOTS HIMSELF

Tuesday, 25 October 2011

Land law notes

BAGUMA ISHA LLB 2

Fixtures

Fixtures are items that have been attached to the land to become part of the land itself

If land is sold, fixtures pass with the land

Colegrave v Dias Santos

If house mortgaged, fixtures are part of mortgagee’s security, whether attached before or after the mortgage

Meux v Jacobs

If land is leased or occupied by life tenant and possessor affixes something to the land the tenant will only have limited rights to remove it as it will be considered part of the landlord’s property
Upon death, fixtures pass to those entitled to the land, not those entitled to the chattels

Re Whaley

Difference between a chattel and a fixture

Law used to be that if something was fixed by any means it was a fixture

Degree of annexation from the land remains a factor, but no longer is as important as once was: Now used as determining intention

Present rule

Two limbed Test:

Purpose of bringing item
Degree of annexation

Holland v Hodgson (1872) LR 7 CP 328

FACTS

Owner of mill took out mortgage
Heavy looms on property, needed to be tied down firmly while they were being used

Had splayed feet with holes through which spikes were driven
Although bolted down, easily movable

Business defaulted on the mortgage, mortgageor claimed the looms

HELD

Held to be fixtures

Brought onto land to enhance mill’s value and usefulness

Court gave examples

If landowner builds stone wall consisting merely of a few bricks resting on each other

Although easily movable, it is a fixture

If builder stacks a few bricks on top of each other in the shape of a wall until they are used

Chattels

Whether an item is a fixture or a chattel will depend primarily upon the intention with which the item was put in place

If item placed on the property for better enjoyment or use of the property then it is a fixture
If thing was brought onto the property for the better enjoyment of use of the thing itself, then it will be regarded as a chattel

Leigh v Taylor

Things to consider to determine fixture or chattel:

Period of time intended to stay

Indefinite time: probably a fixture
Temporary purpose: probably chattel

Degree of fixation

Damage likely to be caused by removing item

More damage means likely to be fixture

Status of person bringing the item

If short term tenant brings something onto land, likely to be chattel

Australian Provincial Assurance Co Ltd v Coroneo [1938]

FACTS

Question whether chairs in cinema are chattels or fixtures

Chairs on in place for temporary time

HELD

Chairs were chattels

Two prima facie rebuttable presumptions to help determine whether fixture or chattel

Where the item is affixed to the land it is presumed to be a fixture

Burden of proof lies with those who assert otherwise

Where the item is not affixed to the land it is presumed to be a chattel

Burden of proof lies with those who assert that it is

Holland v Hodgson(1872) LR 7 CP 328

Rebuttable presumption that where the item is not affixed to the land it is presumed to be a chattel

Reid v Smith[1906]

FACTS

In order to protect against white ants, timber house built so it rested on the surfact of the land without any foundations

HELD

Intention obviously that house should be a fixture

Presumption rebutted

Permanent Trustees v Esanda (1991)

FACTS

Prefabricated house transported in two halves to a nursery to provide accommodation for seasonal workers
Property mortgaged and repayments defaulted

HELD

Chattel - House obviously meant to be transportable

Overall design of house may be relevant

Gregory’s Case [1866]

· FACTS

o Person builds a grand manor house

o Owner installs marble garden furniture and marble lions resting freely by their own weight

o Sold property

· HELD

o Fixtures – part of the overall design of the house

Berkley v Poullet (1976)

FACTS

Grand old English manor sold
One room contained great old paintings of families ancestors which hung in recesses which had been crafted to accommodate them

HELD

Pictures chattels – not part of the overall design of the house

Relevant intention is Objectively Determined

Although modern cases suggest looking to actual subjective intention to assist in determining the period of time the item intended to remain in position, and the function to be served by its annexation

Objective intention, gathered from facts that are ‘patent for all to see’

Hobson v Gorringe [1897]

FACTS

Gas cylinder engine leased from a gas company by mill owner
Gas company says at all times engine is to remain its property
Mill owner gets mortgage from Gorringe who assumes engine is part of the mill
Mill owner defaults, Gorringe demands engine

HELD

Gorringe gets engine

Objectively, a reasonable man might presume that the engines were part of the realty

· Kolim’s Case: Pan Australian Credits v Kolim

FACTS:

Owner builds large commercial building which leaves room for air conditioner plant
Owner leases air conditioner plant
Owner mortgages property and defaults
Mortgager unaware that air conditioner not part of the property, and claims the air conditioner

HELD

Mortgagor has right to the air conditioner

Objectively, reasonable man might presume that air conditioner was part of the realty

Right to remove fixtures

Two categories in which may be a right for tenants to remove fixtures:

1. Tenant and Landlord

If tenant brings fixture onto landlord’s property
Cannot remove items a previous tenant brought onto the land

2. Life tenant and remainder

If life tenant brings fixture onto property and affixes it, does it belong to tenant or remainder holder?

Three Stage Test

Is it a fixture?

If not, it is a chattel: tenant always has ownership rights and can remove it anytime they wish

If so, how firmly fixed is the fixture

· If so firmly fixed that it can not be removed without damaging either it or the property it is adjoined to, the fixture becomes a landlord’s fixture and cannot be removed by the tenant

If not landlord’s fixture, tenant can remove item if it falls into one of these categories:

· Trade fixture

· Domestic or ornamental fixture

· Underlying policy reason is to encourage tenants to make full use of premises and improve them

Landlord’s Fixture

Webb v Bevis (1941) All ER 247

FACTS

Tenant of field under short term lease built aircraft hanger
Laid concrete floor and fixed a superstructure deliberately designed to be removable

HELD

Superstructure was trade fixture, and thus removable
Concrete foundations found to be landlord’s fixture due to difficulty in removing them

Weller v Everitt (1990) 25 VLR 683 (Victoria)

FACTS

Blacksmith took lease in house and built extension
Wanted to remove extension when lease expired

HELD

Court refused to authories this as believed that removal would damage both it and the property to which it was attached

Trade fixture

Webb v Bevis (1941) All ER 247

FACTS

Tenant of field under short term lease built aircraft hanger
Laid concrete floor and fixed a superstructure deliberately designed to be removable

HELD

Superstructure was trade fixture, and thus removable
Concrete foundations found to be landlord’s fixture due to difficulty in removing them

Domestic or Ornamental Fixtures

Spyder v Phillipson (1931) 2 Ch

FACTS

Tenant had 21 year lease on flat in London
Half-way through lease, tenant installed expensive oak panelling, installed ‘no more securely than necessary’

HELD

Could remove it at end of lease, as panelling was there to enhance the realty, and therefore was a chattel not a fixture

Leigh v Taylor (1912) AC

FACTS

Life tenant installed valuable tapestries which are fixed, ‘but no more securely than is necessary’

HELD

Held in favour of life tenant’s estate (and against reversionary interest)
Judges did not make it clear whether this was because they were chattels or ornamental fixtures

Conflict between competing interests:

Mortgagor v Lessor: Legal v Equitable

Eg in Kolim’s case (Above)

Lessor has equitable interest to enter land to collect air conditioner
Mortgagor has legal interest taken for value without notice of lessor’s interest
Legal interest wins over equitable interest

Protecting hirer:

Mortgagor v Lessor: Equitable v Equitable

Re Samuel Allen & Sons Ltd [1907] 1 Ch 575

FACTS

Hiring arrangement with similar clause to Hobson (ie hired good remains property of hirer)
However mortgage was only equitable (as opposed to legal)

HELD:

Owner (who hired it to the mortgagee) has an equitable interest based upon a contractual right, over the property being mortgaged
Because later mortgage was only equitable, simple case of competing equitable rights
First equitable interest prevailed

Does not matter if the later equitable interest was taken for value and without notice

Note:

If under Torrens’ title, it would depend on who had registered the interest

Third Party Interests

Owners of chattels that have become fixtures via there method of attachment may have a right to enter and remove

Proprietary interest in the land, and is caveatable
Interest is extinguished upon sale of land to another party

If land has been mortgaged

Right of removal not available against mortgagor even if fixture for trade, ornamental or domestic purposes

Re The NSW Co-operative Ice and Cold Storage Co (1891)
Hobson v Gorringe
(ME) reason because equitable interest defeated by a later legal interest for value without notice

If landlord leases premises to another tenant after expiration of the lease, but before right to sever and remove fixtures has been exercised

Former tenant can remove fixtures in two situations

Right to sever and remove fixtures amounts to a grant of licence via deed (ME: as will be legal interest, first in time)
Later tenant agrees

If person (B) with an interest in land brings onto land a chattel belonging to another (A), and places it in such a manner that it becomes a fixture

And then later, the interest in land is passed to a third party (M) (Eg to mortgagee upon default)

Can A prevent M from selling the item along with the land?

Between A and B

A has contractual right to enter and sever the item
A has a type of equitable interest in the land entitling him to enter and sever

Equitable interest only exists if the agreement between A and B confers express or implied right to enter

If no provision, no equitable interest

Re Samuel Allen

A reservation of ownership provision does not imply a right to enter

F & M Horwood v Mark Building Enterprises Pty Ltd (1981)

Between A and M

A’s right is not enforceable against M (due to privity of contract)
Equitable interest will be enforceable if it has priority over M’s interest under general priority rules

If M’s interest is legal or registered, then A has no power to deny Ms right to deal with the item

Time limits regarding removal of fixtures

Used to be that had to remove before lease expired, but now:

Tenant entitled to remove fixtures for as long as the tenant remains in possession lawfully

If tenant surrenders lease (as opposed to it expiring), look to terms of surrender to see if right to remove fixtures remains
This applies even if lease may have expired, so long as possession is with Landlord’s consent, or under new lease of premises

New Zealand Government Property Corporation v HM & S Ltd [1982] QB 1145
Adopted in NSW in

D’Arcy v Burelli Investments Pty Ltd (1987) NSWLR

As long as tenant was there under a ‘genuine colour of right as a tenant’, right of removal remains

Qualifications to principle

Lease itself may state that tenant must remove fixture before lease expires
If tenant vacates premises before lease expires, tenant must remove fixtures before they leave, because by definition they are no longer in possession