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Citation
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Judgment date
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| December 2002 |
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A garnishee order can be made absolute for sums owing where a judgment debtor fails to comply with a conditional payment judgment.
Garnishee proceedings – requirement of debtor–creditor relationship and proof of sums due; conditional judgment terms – effect of non‑compliance within stipulated time (Order 45 r10); priority and relief by garnishee where judgment debtor defaults.
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31 December 2002 |
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Driver negligent hitting child on verge; plaintiff awarded damages for loss of expectation and dependency.
Negligence — duty of motorist to exercise reasonable care; pedestrian struck while on verge; contributory negligence rejected; conventional awards for loss of expectation of life and loss of dependency; assessment with reference to money of the day.
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9 December 2002 |
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Cancellation of an import licence without reasons or hearing violated section 43 and natural justice; revocation quashed, goods released.
Administrative law — Judicial review — Revocation of import licence — Section 43 Constitution: right to lawful and procedurally fair administrative action and to written reasons — Natural justice: audi alteram partem — Abuse/unreasonable exercise of public power — Remedy: quashing order and release of goods.
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5 December 2002 |
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Petitioner failed to prove cruelty or desertion; court granted judicial separation, permitting future divorce application if reconciliation fails.
Divorce law – grounds of cruelty and desertion – adequacy of evidence of financial irresponsibility and withdrawal of conjugal rights – judicial separation as appropriate remedy where both parties at fault.
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3 December 2002 |
| November 2002 |
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Bank liable for conversion where negligent/bad-faith account opening allowed cheques payable to plaintiff to be diverted.
Banking law — Conversion of cheques — Banker negligence and bad faith in opening/maintaining account under misleading name — Section 79 (Bills of Exchange Act) protection inapplicable where bank negligent or in bad faith — No estoppel where plaintiff had no banker–customer relationship.
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19 November 2002 |
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Court continued interlocutory injunction pending determination, rejecting defendants' contention that internal remedies precluded court relief.
Civil procedure — interlocutory injunction — ex parte order — alleged non-disclosure of material facts — discretion to continue injunction; Party disputes — internal remedies v. access to courts — exhaustion not an absolute bar to originating proceedings seeking declaratory relief; Natural justice — alleged breach in disciplinary proceedings; Balance of convenience — irreparable harm vs. delay.
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14 November 2002 |
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Court continued interim injunction in intra‑party dismissal dispute, holding internal remedies not a bar and no material non‑disclosure proven.
Political party disputes – interlocutory injunction – balance of convenience and irreparable harm – exhaustion of internal remedies not prerequisite – natural justice – non‑disclosure of material facts – discretion to continue ex‑parte order.
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13 November 2002 |
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The plaintiff was defamed via a malicious, conspiratorial staff memorandum, causing wrongful termination and an award of damages.
Defamation (libel) – publication of false staff memorandum – qualified privilege defeated by malice; Conspiracy – agreement for unlawful purpose causing loss; Wrongful termination – damages for loss of employment and aggravated/exemplary damages.
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11 November 2002 |
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Assessment of personal injury damages: medical evidence precludes loss-of-amenities award; K40,000 awarded for pain and suffering.
Personal injury — assessment of damages — default judgment — medical report contradicting claim of loss of use — no award for loss of amenities — award of K40,000 for pain and suffering.
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10 November 2002 |
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The court dismissed the defendants' restoration application because the original order was perfected, but granted leave to appeal.
Civil procedure — Restoration of proceedings — Order 32 Rule 5(1)–(4) — Distinction between dismissal for non-attendance (r.5(4)) and orders made after hearing in absence (r.5(3)) — Re‑hearing only where order not perfected — Leave to appeal and conditional stay of execution.
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10 November 2002 |
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Uncontroverted evidence of 11‑day false imprisonment and reputational harm led to K100,000 damages and costs for the plaintiff.
False imprisonment — assessment of damages — uncontroverted evidence after default judgment — 11 days’ custody, reputational and business injury — award K100,000 and costs.
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10 November 2002 |
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Plaintiff in road-traffic accident awarded K160,000 for pain, suffering and loss of amenities; costs awarded.
Road traffic accident — assessment of damages — medical evidence of bodily injury — pain and suffering and loss of amenities — compensatory principle — award of K160,000 and costs.
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7 November 2002 |
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The applicant awarded K600,000 for pain, loss of amenities and disfigurement following a default judgment assessment.
Personal injury — assessment of general damages — pain and suffering; loss of amenities of life; disfigurement — default judgment; reliance on comparative awards and evidence — quantum K600,000 plus costs.
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5 November 2002 |
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Court entered judgment on implied admissions in correspondence for unpaid purchase price; interest reserved for trial; costs to plaintiff.
Civil procedure – judgment on admissions (Order 27 Rule 3) – implied admissions in correspondence – letters before or after proceedings may constitute admissions – refusal of interest where claimant terminated agreement; costs awarded to successful applicant.
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5 November 2002 |
| October 2002 |
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President’s blanket rally directive banning "demonstrations" was not prescribed by law, was overbroad and unconstitutional; security orders were too vague.
Constitutional law — Freedom of assembly, demonstration and expression — Requirement that any limitation be "prescribed by law" (s.44(2)) — Overbroad and vague executive directives — Separation of powers — Police Act regulation of assemblies.
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21 October 2002 |
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A third party’s compensation voucher and letter do not amount to a clear, party-made admission supporting judgment on admissions.
Tort (negligence) – Judgment on admissions (Ord. 27 r.3 RSC) – Admissions must be clear, unequivocal and made by a party – Third‑party communications do not constitute defendant’s admission – In negligence both breach and damage must be admitted/proved.
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17 October 2002 |
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Holding a party convention in defiance of an injunction is contempt; the convention was void and contemnors fined.
Contempt of court – breach of injunction restraining party convention – service and actual notice – liability of non‑parties/assistants who knowingly aid breach – declaration void ab initio – fines with default imprisonment – costs.
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11 October 2002 |
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Court finds key party members in contempt for holding a convention in breach of an injunction and declares it void ab initio.
Injunctions – contempt of court – service and notice – liability of non-parties who assist breach – political party convention declared void ab initio – fines in default of imprisonment.
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10 October 2002 |
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House-to-house bill of lading imposed delivery obligations; carrier and clearing agent held liable for seizure and sale of goods.
Carriage of goods — Bill of lading — Interpretation as house-to-house (multimodal) versus port-to-port — Agent and carrier liability for failure to clear/ deliver goods — Failure to procure clearance leading to seizure and sale.
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8 October 2002 |
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Court upheld magistrate’s property division but awarded appellant K20,000 compensation for excluded occupied rooms.
Family law – division of matrimonial property – characterization of rental accommodation as undetached rooms – where in-kind division would cause animosity, monetary compensation may be awarded – assessment of fairness of distribution in light of respondent’s responsibility for multiple children.
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3 October 2002 |
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Whether a judgment-on-admission is interlocutory and whether a negotiation letter amounted to an unequivocal admission.
Civil procedure – Judgment on admission – Whether interlocutory or final – Admissibility of hearsay/information and belief in affidavits under Order 41 r.5 – Requirement to disclose sources and grounds – Admissions: clarity, context and negotiations – Judicial discretion to grant or refuse judgment on admission.
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2 October 2002 |
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Court reduced an excessive burglary sentence, outlining sentencing principles and imposing a three-year term for simple non-violent burglary.
Sentencing — Burglary/housebreaking — sentencing must balance offence, offender and victim circumstances — six-year threshold adjustable — simple non-violent burglary may attract three-year minimum custodial term.
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2 October 2002 |
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Court reduced a manifestly excessive six‑year burglary sentence to three years and confirmed the 1.5‑year bicycle theft sentence.
Criminal law – Sentencing – Burglary/housebreaking – sentencing principles and factors (nature of trespass, violence, planning, offender’s age and antecedents, guilty plea, victim vulnerability) – Chizumila six‑year starting point – simple burglary minimum three years – confirmation and variation of sentences on review.
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2 October 2002 |
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Court confirmed magistrate’s custodial sentences for burglary and theft despite finding the burglary sentence manifestly inadequate.
Criminal law – Sentencing principles – Burglary/housebreaking – Chizumila six-year starting point – Minimum three years for simple burglary – Factors aggravating sentence: forceful entry, damage, weapon, victim vulnerability – Review and confirmation of magistrate's sentence.
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2 October 2002 |
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Sentencing for burglary must balance offence, offender, victim, and public interest; simple burglary merits at least three years imprisonment.
Criminal law – Sentencing – Burglary/housebreaking – Factors: nature of offence, offender, victim, public interest – Actus reus and mens rea considerations – Chizumila six-year starting point – Minimum three years for simple burglary – Role of previous convictions in sentencing.
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2 October 2002 |
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Court confirmed a 3.5-year burglary sentence, holding it appropriate for a simple trespass by a young first offender.
Criminal law — Sentencing — Burglary/housebreaking — Sentencing factors: nature of trespass, force, damage, victim vulnerability, offender's age and antecedents — Chizumila six-year starting point and scaling for simple burglary.
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2 October 2002 |
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The court confirmed the defendant's four-year rape sentence as not manifestly inadequate under applicable sentencing principles.
Criminal law — Rape — Sentence review — Whether sentence manifestly inadequate — Sentencing factors: violence, weapons, planning, repetition, prior convictions, victim age/effect — R v Billam guidance and Malawi sentencing benchmarks (3/6/10 years) — Confirmation of four-year sentence.
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2 October 2002 |
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On review the court held that simple burglary ordinarily attracts a minimum three-year custodial sentence and increased the sentence accordingly.
Criminal law – Sentencing – Burglary/housebreaking – Sentencing principles balancing actus reus and mens rea factors – Chizumila benchmark six-year starting point – Simple burglary minimum custodial sentence three years – Consideration of offender’s antecedents and victim vulnerability.
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2 October 2002 |
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Court reduced excessive sentences, fixing burglary at three years and theft at 1.5 years to avoid double punishment.
Sentencing – Housebreaking/burglary – principles and factors; Chizumila six-year starting point; simple/threshold burglary minimum three years; double punishment prevented; Paulo v R – 1.5 years for unrecovered bicycle; limited role of previous convictions.
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2 October 2002 |
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Court affirmed magistrate’s custodial sentences for burglary and theft, applying Chizumila sentencing guidelines.
Sentencing — Burglary/housebreaking — Sentencing principles (actus reus and mens rea factors) — Chizumila six-year starting point — Threshold/simple burglary — First offender mitigation — Confirmation of sentence.
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2 October 2002 |
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An appellate court reduced a five-year unlawful wounding sentence to two years, finding it manifestly excessive given the circumstances.
Criminal law – Sentencing – Unlawful wounding (s.241(a)) – Factors: nature of act, weapon, injury severity, offender’s antecedents and age, victim impact, public interest; Prior convictions – weight of a single petty conviction; Maximum sentence reserved for worst instances.
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2 October 2002 |
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Conviction overturned where circumstantial evidence (vague identification of cloth) failed to prove guilt beyond reasonable doubt.
Criminal law – unlawful wounding – circumstantial evidence – burden to prove facts beyond reasonable doubt – each link in chain must be unassailable – identification of goods (mass-produced/common articles) – unsafe inference based on ownership and relationship.
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2 October 2002 |
| September 2002 |
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Administrator holds intestate fee-simple land on trust for all heirs and must transfer titles to beneficiaries; costs awarded.
Wills and Inheritance Act 1967 – Intestacy – Fee simple land passes to heirs – Administrator holds estate assets on trust – Equal rights of children – Compulsion to effect transfer of title.
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30 September 2002 |
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A minor’s cohabitation does not create a customary or reputed marriage; child maintenance ordered under the Affiliation Act.
Family law – Cohabitation by minors – No customary marriage or marriage by repute where negotiations incomplete; minors require parental consent – Affiliation Act s.3(c) and s.5(1) – Maintenance for child of cohabiting parents – Recharacterisation of compensation as child maintenance – Claims to household goods and land require evidence.
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23 September 2002 |
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Under customary marriage, a wife's labour contributions give an equitable share in the matrimonial home; court awarded compensation and payment schedule.
Customary marriage — matrimonial property — equitable interest from non-monetary contributions (labour) — custody under Lomwe customary law — maintenance and compensation orders on divorce.
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23 September 2002 |
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Plaintiff failed to prove on a balance of probabilities that negligent electrical maintenance caused the house fire.
Negligence; electrical installations; causation in fire cases; standard of proof in civil claims; credibility of witnesses; assumptions versus inspection evidence.
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19 September 2002 |
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A caution forbids registration and entitles to notice but does not grant sale power; an unregistered charge cannot support a valid sale.
Registered Land Act — Caution: forbids registration of dispositions and entitles cautioner to notice but does not confer power of sale; Charge: unregistered or unperfected charge does not authorize power of sale; Registration by mistake—rectification under s139; Requirements for valid registration of charges.
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18 September 2002 |
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Unlawful, nonconsensual search of diplomat’s luggage breached privacy, constituted trespass and defamation; State held vicariously liable and ordered to pay damages.
State vicarious liability; unlawful search of personal effects; right to privacy; trespass to goods; defamation and reputational damage; damages quantification; aggravated/exemplary damages must be pleaded.
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17 September 2002 |
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An unimplemented intention to ban an organisation is not a reviewable decision; judicial review permission was refused as premature.
Judicial review — justiciability — intention versus implemented decision — premature application — requirement of a positive, reviewable act or decision; costs awarded to respondent; note on relevant precedent (Mtikila v Attorney General).
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12 September 2002 |
| August 2002 |
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Court enhanced sentences for aggravated burglary, holding recovery of property irrelevant to burglary and limiting first-offender mitigation.
Criminal law — Burglary/housebreaking: offence complete on entry; recovery of property irrelevant to burglary sentence; first-offender mitigation limited where violence and multiple offenders; starting point for burglary six years; aggravating factors: weapons, violence, concerted action, high value theft.
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13 August 2002 |
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Recovery of stolen property does not mitigate burglary; violent, organized housebreaking justifies starting point of six years' imprisonment.
Criminal law – Sentencing – Burglary/housebreaking – starting point six years – recovery of property irrelevant to burglary sentence – first-offender mitigation outweighed by violence, weapons and multiple perpetrators.
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13 August 2002 |
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A five-year sentence for stealing a single pig was manifestly excessive; mitigating factors warranted the respondent's immediate release.
Criminal law — Sentencing principles — Theft of cattle (s.281) — Manifestly excessive sentence — Consideration of nature and number of animals, offender’s age, guilty plea, restoration of property, prior convictions, and public interest.
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7 August 2002 |
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Court reduced a manifestly excessive five-year sentence for attempted burglary to one year, applying sentencing principles for attempts.
Sentencing — Burglary and attempted burglary — Sentencing principles: consider nature/circumstances of offence, offender and victim, public interest — Attempts ordinarily receive lesser sentences than completed offences — Chizumila guideline applicable but adjustable.
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7 August 2002 |
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Conviction based mainly on visual identification without adequate Turnbull-style caution and analysis is unsafe; conviction and sentence set aside.
Criminal law – Visual identification – Turnbull warning and guidelines – assessment of identification circumstances; Alibi – weight of rejected alibi; Failure to call unavailable witness – not fatal; Conviction unsafe; Sentence set aside.
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7 August 2002 |
| July 2002 |
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A guilty plea is inappropriate where the accused asserts facts negating an essential element (consent); conviction quashed and retrial ordered.
Criminal procedure – Plea of guilty – Acceptance of guilty plea improper where accused raises facts negating an essential element (consent) – Magistrate should record not guilty and hold full trial – Conviction quashed and retrial ordered (s.362(1) read with s.353(2)(a)(1) C.P.&E. Code)
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30 July 2002 |
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Ex-parte arrest/attachment granted simultaneously with writ and served on wrong person was irregular and set aside with costs.
Civil procedure — Ex-parte arrest/attachment — Order VIII r.1 (Rules of High Court) — requirement of defendant’s awareness and intent to defeat/delay — defective personal service — amendment and service — abuse of process — order set aside.
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21 July 2002 |
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The applicant failed to prove Malawian domicile; court lacked jurisdiction and dismissed his leave application with costs.
Divorce Act s2 — domicile as jurisdictional requirement; s8(1) — leave to present early petition on exceptional hardship; domicile of origin v. domicile of choice; burden of proof de animo et facto; evidentiary weight of prior sworn statements and withdrawn applications.
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17 July 2002 |
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Shortage of drugs at a prison clinic does not by itself constitute exceptional circumstances to grant bail for health reasons.
Criminal procedure – Bail – Health grounds – Elevated blood pressure and prison clinic drug shortage – Shortage of drugs not per se an exceptional circumstance justifying bail; hospital treatment or private acquisition of drugs may suffice.
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10 July 2002 |
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Bank lawfully exercised power of sale after borrower’s default; unilateral post-notice payments did not invalidate the sale.
Property law – power of sale following mortgage default; notice of sale and effect of unilateral payments; auctioneer registration and alleged illegality; doctrine ex dolo malo non oritur actio; claim for compensation dismissed.
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10 July 2002 |
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Decree nisi granted: petitioner’s adultery and desertion proved; respondent’s adultery not established.
Matrimonial law – divorce – adultery – proof by inference and circumstances; hearsay inadmissible to establish adultery – desertion and constructive desertion – decree nisi granted where spouse’s conduct forced separation.
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3 July 2002 |