- Commenced on 1 August 1958
- [This is the version of this document at 31 December 2017.]
- [Note: This version of the Act was revised and consolidated in the Fifth Revised Edition of the Laws of Malawi (L.R.O. 1/2018), by the Solicitor General and Secretary for Justice under the authority of the Revision of the Laws Act.]
Part I – Preliminary
1. Short titleThis Act may be cited as the Courts Act.
2. InterpretationIn this Act, unless the context otherwise requires—"civil matter" means a civil matter that is not a commercial, criminal, family or probate matter;[23 of 2016]"commercial matter" means a civil matter of commercial significance arising out of or connected with any relationship of commercial or business nature, whether contractual or not, including—(a)the formation or governance of a business or commercial organization;(b)the contractual relationship of a business or commercial organization;(c)liabilities arising from commercial or business transactions;(d)the restructuring or payment of commercial debts;(e)the winding-up of companies or bankruptcy of persons;(f)the enforcement or review of commercial arbitration award;(g)the enforcement of foreign judgments of commercial matters subject to the provisions of the law;(h)the supply or exchange of goods and services;(i)banking, negotiable instruments, international credit and similar financial services;(j)insurance services; or(k)the operation of stock and foreign exchange markets,in the event of doubt as to whether a matter is commercial or not, the judge at the outset or during the course of the action, shall have power to resolve the issue;[23 of 2016]"court" means the High Court and any subordinate court;"criminal matter" means a matter requiring a person to answer for an offence under any written law other than revenue law;[23 of 2016]"District Registrar" means a Deputy Registrar appointed under section 7A (3);[18 of 1984]"family matter" means a civil matter which concerns the entry, subsistence and exit from a marriage, and incidental matters thereto;[23 of 2016]"High Court" means High Court of Malawi;"Judge" means a Judge of the High Court and includes the Chief Justice;"Judgment" includes any decision, decree, determination, finding or order of any court;"magistrate" means a magistrate appointed under section 34 and includes a Resident Magistrate;"probate matter" means a civil matter which concerns succession to or inheritance of property and incidental matters;[23 of 2016]"Registrar" means the Registrar of the High Court and includes a Deputy Registrar and an Assistant Registrar;"Resident Magistrate" means a Resident magistrate appointed under section 34 and includes the Senior Resident Magistrate;"revenue matter" means a civil or criminal matter which concerns taxes, duties, fees, levies, fines or other monies imposed by or collected under the written laws set out under the Malawi Revenue Authority Act;[23 of 2016; Cap. 39:07]"rules of court" means rules of court made under section 59 or 67;"seal" includes stamp;"Sheriff" includes a Sheriff’s Deputy and any Sheriff’s officer;"subordinate court" means any court, subordinate to the High Court, established under this Act but does not include a Traditional Court established under the Traditional Courts Act or any Act replacing the same.[Cap. 3:03][2 of 2004; 23 of 2016]
Part II – General
3. Process of courts
4. Legal practitioners
Part III – High Court
5. Constitution of High CourtThe High Court shall consist of the Chief Justice and such number of other Judges as the President may, from time to time, appoint.[7 of 1984; 19 of 1987]
5A. Judges to have powers of subordinate courtsEvery Judge shall, in addition to such other powers as may be conferred upon him, have all the powers conferred on any subordinate court by any written law.
6. Senior Judge of the High CourtThe Chief Justice shall be Senior Judge of the High Court and the other Judges shall take precedence after him according to the priority of their respective appointments as such.
6A. Establishment of divisions of court
7A. Establishment of District Registries and appointment of District Registrars
7B. Seals of District Registries
7C. Powers, functions and duties of District Registrars
7D. Transfer of proceedings
7E. Rules to regulate practice and procedure in District RegistriesWithout prejudice to section 67, the Chief Justice may make rules for regulating and prescribing the procedure and the practice to be followed in District Registries and in the Principal Registry of the High Court in all causes and matters whatsoever in or with respect to which they have for the time being jurisdiction and for all matters incidental or relating to any such procedure and practice, including (but without prejudice to the foregoing provisions) the manner in which and the time within which any applications thereto are to be made, the costs and charges to be allowed and the fees to be payable in respect of proceedings therein, and the review of any ruling or decision or matter heard by District Registrars in exercise, or purported exercise, of any power pursuant to section 7C or by the Registrar.
7F. Directions by the Chief Justice as to duties and functions of District RegistriesThe Chief Justice may give such directions as he thinks fit as to the duties to be carried out by, and for the apportionment of functions among, the staff of District Registries and, without prejudice to the generality of the power hereby conferred, such directions may specify, either by name or office, the persons who shall be responsible for the issue of summonses, warrants and writs of execution, for the registration of orders and judgments, for the taxing of bills of costs, for the keeping of the records of proceedings, and for the custody of and other matters relating to fines, fees and other moneys paid into or out of any District Registry.
8. Powers and duties of Registrar and other officers of Court
9. Proceedings of High Court to be disposed of by single judge
10. VacationsThe Chief Justice may, by order published in the Gazette, direct such vacations, not exceeding three months in any one year, as he thinks fit.
11. Additional jurisdictionWithout prejudice to any jurisdiction conferred on it by any other written law the High Court shall have—
12. Procedure in perjuryThe High Court, if it appears that a person has been guilty of perjury in any proceedings before it, may order that he be tried by a court of a Resident Magistrate and bind any person by recognizance to give evidence at such trial.
Arrest and attachment before judgment
13. Arrest before judgment
14. Attachment before judgment
15. Imprisonment for debt
16. Committal of judgment debtors
17. Saving of provisions relating to examination of judgment debtorsNothing contained in section 13 or 14 shall in any way affect the jurisdiction and powers of the High Court under sections 15 and 16 or its powers in regard to the examination of debtors in accordance with the Rules of the Supreme Court.
Appellate jurisdiction of the High Court
18. Appellate criminal jurisdictionThe appellate criminal jurisdiction of the High Court shall consist of the hearing of appeals from subordinate courts, according to the law for the time being in force relating to criminal procedure and such other appellate criminal jurisdiction as may have been or may be conferred upon the High Court by any other law.
19. Appellate civil jurisdictionThe appellate civil jurisdiction of the High Court shall consist of the hearing of appeals from subordinate courts as hereinafter provided and such other appellate civil jurisdiction as may have been or may be conferred upon the High Court by any other law.
Civil appeals from subordinate courts
20. Civil appeals from subordinate courts to the High Court
21. Reservation of points of lawIn addition to and without prejudice to the rights of appeal conferred by section 20 a subordinate court may reserve for consideration by the High Court any question of law which arises during the trial of any civil action or matter and may give any judgment or decision, subject to the opinion of the High Court, and the High Court shall have power to determine, with or without hearing argument, every such question.
22. Power of High Court in civil appealsIn a civil appeal the High Court shall have power—
23. Appeal not to operate as stay of executionIn civil matters, an appeal shall not operate as a stay of execution or of proceedings under the judgment appealed from, except so far as the subordinate court or the High Court may otherwise order; and no intermediate act or proceeding shall be invalidated, except in so far as the High Court may direct.
24. Subordinate court shall conform to order of High CourtIn civil appeals the subordinate court shall conform to and execute such judgment or order as shall be issued, made or pronounced by the High Court therein in like manner as any original judgment or order by the said subordinate court could be or might have been executed.
Revision by High Court of proceedings of subordinate courts
25. Revision in criminal proceedingsThe High Court shall exercise powers of review in respect of criminal proceedings and matters in subordinate courts in accordance with the law for the time being in force relating to criminal procedure.
26. General supervisory powers of High Court
27. No revision where appeal liesWhere an appeal lies from any judgment in any civil matter and no appeal is brought, no proceedings by way of review shall be entertained at the instance of the party who could have appealed.
28. No right of party to be heard on revisionNo party shall have any right to be heard, either personally or by a legal practitioner, before the High Court when exercising its powers of review or supervision under sections 25 and 26:Provided that no order shall be made to the prejudice of any person unless such person has had an opportunity of being so heard.
Practice and procedure
29. Practice and procedure of the High CourtThe practice and procedure of the High Court shall be provided in the rules of procedure made by the Chief Justice under section 67.[2 of 2004; 23 of 2016]
Costs and fees
30. Costs to be in the discretion of the High CourtSubject to this Act, the costs of, and incidental to, all proceedings in the High Court, including the administration of estates and trusts, shall be in the discretion of the High Court; and the discretion shall be exercised in accordance with the practice and procedure provided in the rules of procedure made by the Chief Justice under section 67 of this Act.[23 of 2016]
31. Costs when proceedings could have been commenced in subordinate court
Part IV – Subordinate courts
33. Establishment of courts of magistratesThere are hereby established in Malawi the following courts subordinate to the High Court—
34. Constitution of courts of magistratesThe courts of magistrates shall be constituted as follows—(a)the court of a Resident Magistrate shall consist of a fit and proper person appointed by the President to be a Resident Magistrate; and(b)the court of a magistrate of one of the following grades, that is to say, the first, second or third grades, shall consist of a fit and proper person appointed by the President to be a magistrate of each such grade respectively.
35. A court of a magistrate to have jurisdiction throughout MalawiSubject to any written law for the time being in force, the court of a magistrate shall exercise its jurisdiction throughout Malawi.
36. Places and times of sittings of subordinate courtsThe sittings of subordinate courts shall ordinarily be held in such places as the Chief Justice may direct and, subject to any directions of the Chief Justice, at such times as the magistrate constituting the court may deem most adapted to facilitate the business of the court.
37. Records to be keptSubordinate courts shall keep written records and furnish returns of cases tried by them to the High Court in such manner as the Chief Justice may from time to time direct.
38. SealsSubordinate courts shall use seals of such nature and patterns as the Chief Justice may direct.
Civil jurisdiction of courts of magistrates
39. Civil jurisdiction of courts of magistrates
40. Counterclaims in subordinate courts
41. Relinquishing part of claimA plaintiff may relinquish any portion of his claim in order to bring the action or suit within the jurisdiction of a subordinate court, but he shall not afterwards sue in respect of the portion so relinquished.
42. Claims not to be splitClaims may not be split, nor may more than one action or suit of a civil nature be brought in respect of the same cause of action against the same party.
43. Jurisdiction to grant relief by way of interpleaderA court of a Resident Magistrate and a court of a magistrate of the first grade shall have jurisdiction to grant relief by way of interpleader and to order the sale oi any property subject to interpleader proceedings.
44. Res judicataA subordinate court may dismiss or stay proceedings where the matter in question is res judicata between the parties or where by reason of multiplicity of proceedings in any courts the proceedings ought not to be continued.
45. Stay of proceedingsA subordinate court may stay or transfer proceedings unless they have been instituted in the District in which—
46. Transfer of proceedings
48. DiscoveryA subordinate court may order discovery of facts or documents by any party or person in such manner as may be prescribed.
49. Process to compel appearance
51. Attachment of propertyA subordinate court may, in such manner as may be prescribed, order the attachment and sale of any property of any person whom it might commit to prison under section 50.
52. Sections 50 and 51 not to be construed as conferring jurisdiction under section 16Nothing contained in sections 50 and 51 shall be construed as conferring on any subordinate court any jurisdiction under section 16 which is not expressly conferred by that section or other provisions of this Act.
53. Variation and suspension of judgmentsA subordinate court may discharge, vary or suspend the operation of any of its judgments or orders to such extent and in such manner as may be prescribed.
54. Contempt of court
55. Setting aside judgmentsA subordinate court shall have power to set aside, in such manner as may be prescribed, any judgment or order obtained by default or ex parte.
56. Attachment of debtA subordinate court shall have jurisdiction to attach debts due to a judgment debtor in such manner as may be prescribed:Provided that, subject to any other law for the time being in force, no wages of any servant, labourer or workman shall be liable to attachment.
57. Suspension of executionA subordinate court may suspend any execution, judgment or order issued, given or made by such subordinate court for such time and on such terms as it shall think fit.
Criminal jurisdiction of courts of magistrates
58. Criminal jurisdiction of courts of magistratesIn exercise of their criminal jurisdiction the powers of courts of magistrates shall be as provided for in this Act, in the Criminal Procedure and Evidence Code and in any other written law.[Cap. 8:01]
59. Rules of court regulating practice and procedure in subordinate courtsWithout prejudice to section 67, the Chief Justice may make rules of court—
Part V – Miscellaneous
60. Proceedings to be in open courtIn exercise of its jurisdiction, powers and authorities the proceedings of every court shall, except as otherwise provided by any other law for the time being in force, be carried on in an open court to which the public generally may have access:Provided that any court shall have power to hear any matter or proceeding or any part thereof in camera if, in the opinion of the presiding Judge, or magistrate, it is expedient in the interest ofjustice or propriety or for other sufficient reason so to do.
61. Protection of judicial officers
62. Expenses of witnessesAny court may, in civil proceedings, allow to all persons required to attend or to be examined as witnesses such sums of money as expenses or compensation for their loss of time as may be prescribed; but it shall not be lawful in any proceeding for any person to refuse to attend as a witness or to give evidence when so required by process of the court on the ground that his expenses have not been first paid or provided for.
63. Notice to bring persons from prisonAny court may, by notice addressed to the officer in charge of a prison, require any person in prison to be brought before it for any purpose.
64. Proof of customary lawIf in any proceeding a matter of customary law is material, such law shall be treated as a question of fact for purposes of proof. In determining such law the court may admit the evidence of experts and persons whom the court considers likely to be well acquainted with such law:Provided that a court may judicially note any decisions of its own or of any superior court, determining the customary law applicable in a like case.[25 of 1968]
65. Interest on judgmentsEvery judgment in civil proceedings shall carry interest at the rate of five per centum per annum or such other rate as may be prescribed.
66. Execution of warrantsAny warrant of committal issued by the High Court in the exercise of its civil jurisdiction may be executed by a police officer or any other person to whom it is directed at any time, notwithstanding that the warrant is not in his possession at that time:Provided that the warrant shall, on the demand of the person arrested, be shown to him as soon as practicable after his arrest.
67. Rules of court
68. Saving of rights of GovernmentNothing in this Act shall be construed so as to limit or prejudice the rights of the Government applicable or attaching to any land under any grant, lease, right of occupancy or other disposition of land granted or made by the Minister responsible for land under any law in force at the time of such grant, lease, right of occupancy or other disposition.
70. Saving of offices
History of this document
01 August 1958