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High Court of Malawi - 1991 January

6 judgments
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6 judgments
January 1991
Lungu v Alimahomed (Civil Cause 72 of 1990) [1991] MWHC 17 (27 January 1991)
A bona fide counterclaim arising from the same subject matter requires unconditional leave to defend; triable issues vitiating a bill of sale were identified.
  • Civil procedure — Order 14, Rule 5 — Summary judgment on counterclaim — Principles applied mutatis mutandis — Bona fide counterclaim arising from same subject matter warrants unconditional leave to defend — Bill of sale may be vitiated where used to secure sale price or where consideration not truly stated.
27 January 1991
Sugar Corporation of Malawi Limited v Harding t/a Kirtland Company (Civil Cause 99 of 1990) [1991] MWHC 24 (18 January 1991)
Summary judgment inappropriate where substantial disputes exist about whether the defendant was the contracting party; unconditional leave to defend granted.
  • Civil procedure — summary judgment (Order 14) — bona fide defence and substantial disputes of fact or law preclude summary disposal; identity of contracting party; evidentiary proof of foreign company’s existence/non‑existence.
18 January 1991
Zidana v Professor Chimphamba (Civil Cause 440 of 1987) [1991] MWHC 12 (16 January 1991)
Both drivers negligent; defendant mainly liable (75%); special damages unproven; plaintiff awarded K5,000 and costs.
  • Road traffic negligence — duty to keep to the left — contributory negligence and apportionment (75% defendant, 25% plaintiff) — proof of special damages — assessment of general damages for comminuted femoral fracture with leg shortening.
16 January 1991
Casalee Cargo Limited v Mjojo t/a Opal Enterprises (Civil Cause 186 of 1990) [1991] MWHC 37 (14 January 1991)
Court allowed substitution of newly incorporated company for firm sued, finding a genuine mistake and permitting amendment with costs.
  • Civil procedure — amendment/substitution of party — Order 20 Rule 5(3) — genuine mistake — corporate conversion of a firm to a company — avoidance of multiplicity of actions.
14 January 1991
Southern Bottlers v Issa & Another (Civil Cause 1230 of 1990) [1991] MWHC 23 (14 January 1991)
Whether the applicant should obtain an interlocutory injunction to restrain the respondent's use of a similar trade mark.
  • Trade marks — infringement — use of similar name "Freezits"; Interlocutory injunction — good arguable claim/serious question to be tried; Court should not decide merits on affidavits; Balance of convenience — risk of irreparable harm; Undertaking as to damages.
14 January 1991
Label Industries Limited v Small Enterprise Development Organization of Malawi (Civil Cause 526 of 1987) [1991] MWHC 9 (11 January 1991)
Seizure and sale of an incorporated borrower’s equipment was unlawful; trespass and conversion established.
  • Company law — pre‑incorporation arrangements and novation; Contract — binding effect of loan agreement post‑incorporation; Bills of Sale Act s.23 — inapplicability to incorporated bodies’ assets; Tort — trespass ab initio and conversion; Measure of damages for conversion and trespass.
11 January 1991