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High Court of Malawi - 2006 November

9 judgments

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9 judgments


November 2006
Msindo v Msindo (67 of 2006) [2006] MWHC 15 (13 November 2006) Divorce petition dismissed for want of jurisdiction because the petitioner was not domiciled in Malawi. Family Law — Divorce — Jurisdiction and domicile — Whether petitioner domiciled in Malawi under s.2 of the Divorce Act — Domicile of origin persists unless displaced by an affirmed domicile of choice; employment alone is insufficient	13 November 2006
Stanbic Bank Ltd v Maryam Arab & Esaarab t/a E & M Halaal Butchery (3542 of 2004) [2006] MWHC 14 (13 November 2006) Plaintiff failed to prove authorisation codes were invalid; debit of merchant’s account was unjustified. Contract — Merchant Card Agreements — Validity of Authorisation Codes — Burden of Proof and Failure to Call Principal’s Witnesses	13 November 2006
Ex Parte Chilumpha (5 of 2006) [2006] MWHC 140 (8 November 2006) Vice‑President lacks criminal immunity; covert recordings breached privacy and judicial review cannot be used to strike down statutes. Constitutional law — Judicial review — Scope and appropriateness for challenging statutory validity — Immunity — Vice‑President not immune from criminal prosecution under section 91(2) Criminal procedure — Arrest and detention — 48‑hour rule; rights to be informed and fair procedural/adminstrative action	8 November 2006
Banda Lucious v R (48 of 2006) [2006] MWHC 141 (6 November 2006) Convictions quashed for failure to authenticate documentary evidence and for a defective Section 122 charge. Criminal Law — Documentary Evidence — Authentication and admissibility of photocopies under the Criminal Procedure and Evidence (Documentary Evidence) Rules — Offences Against Public Administration — Section 122 Penal Code — Particulars must disclose a statutory offence and inform the accused with sufficient particularity — Uttering False Document — Proof beyond reasonable doubt requires establishing the document was tendered by accused and that accused knew it was false	6 November 2006
In Re Section 65 of The Constitution (2 of 2005) [2006] MWHC 144 (6 November 2006) Section 65(1) is constitutionally valid but applies only to MPs who were party members at election; independents are excluded. Constitutional Law — Parliamentary Membership — Crossing the Floor (s65) — Validity and scope of application — Political Rights — Free mandate and freedom of association (s65(2)) — Protection of free parliamentary vote	6 November 2006
In Re: The Question of Crossing The Floor By Members of Parliament (Presidential Referral 2 of 2005) [2006] MWHC 22 (6 November 2006) Section 65 is constitutionally valid; MPs who abandon party allegiance or join another party may lose their seat, subject to factual nuance. Constitutional Law — Legislature — Crossing the Floor (Section 65) — Validity vis‑à‑vis rights to association, conscience and expression — Purposive interpretation — Parliamentary Membership — Meaning of “member at time of election” — Effect on independents and sole‑party representatives — Executive Appointments — Ministerial appointment from another party — May amount to floor‑crossing depending on party approval and facts	6 November 2006
Lucius Chicco Banda v R (Criminal Appeal 48 of 2006) [2006] MWHC 23 (6 November 2006) Convictions quashed where photocopied documents lacked authentication and charge particulars failed to disclose a statutory offence. Criminal Law — Documentary Evidence — Authentication and admissibility of photocopied exhibits under the Criminal Procedure and Evidence (Documentary Evidence) Rules — Forgery/Uttering — Elements: identity of document, mens rea, and proof beyond reasonable doubt Constitutional Law — Fair Trial — Particulars of charge and right to be informed with sufficient particularity (presumption of innocence and right to silence)	6 November 2006
Re Section 65 of The Constitution (15 of 2005) [2006] MWHC 139 (6 November 2006) Judicial review limited to process‑based complaints; surreptitious recordings breached privacy warranting damages; Vice‑President not immune to prosecution. Constitutional law — Judicial review — Scope and limitations; challenge to constitutionality of statutes not by judicial review — Right to privacy — Use of surreptitious recordings in criminal process — Wednesbury unreasonableness and damages — Executive immunity — Section 91(2) construed as granting criminal immunity to President only; Vice‑President not immune	6 November 2006
Finca Malawi v Elma High School (Civil Cause 39 of 2005) [2006] MWHC 1 (1 November 2006) Default judgment reflecting amounts endorsed on an amended writ is not irregular merely because it includes non-recoverable collection costs. Civil Procedure — Default Judgment — Inclusion of non-recoverable collection costs on writ — Whether renders judgment irregular — Order 19 r.2(1) RSC — Amendment of Pleadings — Effect of amended writ on entitlement to enter judgment — Order 13 r.1 RSC Execution — Sheriff's Fees — Reimbursement where execution followed a regular judgment — When reimbursement is unjustified	1 November 2006