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Malawi Supreme Court of Appeal - 2008

5 judgments
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5 judgments
November 2008
Nigrisoli & Anor. v Illomba Granite Company Ltd & Ors. (Civil Cause 1111 of 2005) [2008] MWSC 194 (3 November 2008)
Court held parties agreed only to grant use of the mining licence, not its transfer; plaintiffs' claim dismissed, counterclaim granted.
  • Mines and Minerals — mining licence: 'use' v transfer; contract interpretation — objective approach and surrounding background; agency — licence-holder may use agents (s.43); royalties — contractual obligation and counterclaim; plaintiffs failed to prove breach or loss.
3 November 2008
July 2008
Donnex & Ors. v R (75 of 2008) [2008] MWSC 210 (13 July 2008)
Appeal allowed: custodial sentences for unlawful charcoal burning substituted with fines where no assessed damage and offenders not hardened.
  • Criminal Law
    • — Forestry offences — Destroying indigenous trees by making charcoal without licence — Sentencing discretion and proportionality
    • — Sentencing — Consideration of first‑offender status and absence of assessed damage value — Custodial sentence versus fine
13 July 2008
May 2008
In Re: Adoption of Children Act (Cap.26:01); In Re: David Banda (Adoption Cause 2 of 2006) [2008] MWSC 243 (27 May 2008)
Court held residence is not an absolute bar to inter‑country adoption; best interests and informed consent are paramount.
  • Family Law — Adoption — Inter‑country adoption and statutory residence requirement — Whether s 3(5) bars adoption by non‑residents; best interests of the child and CRC/ACHPR obligations
27 May 2008
In Re: Adoption of Children Act (Cap.26:01); In Re: David Banda (Adoption Cause 2 of 2006) [2008] MWSC 3 (27 May 2008)
Court allowed inter‑country adoption despite non‑residence, prioritising the infant's best interests and international obligations.
  • Family Law —  Adoption
    • — Inter‑country adoption — Whether residence requirement in s.3(5) is absolute or subordinate to the best interests of the child — Adoption of Children Act s.3(5)
    • — Child welfare principle — Paramountcy of the best interests of the child and requirement to interpret domestic law in conformity with CRC and ACHPR — Constitution ss.11,30,211
    • — Safeguards in inter‑country adoption — Informed consent, social welfare reports and last‑resort principle — Adoption of Children Act s.4
27 May 2008
April 2008
Thomson v C.G.U. Insurance Limited (MSCA Civil Appeal 17 of 2008) [2008] MWSC 244 (15 April 2008)
A stay will be refused unless the applicant proves the judgment debt would be irrecoverable; purchaser liable after sale.
  • Stay of execution — test for grant: good reason required; applicant must show judgment debt would be irrecoverable — courts avoid depriving successful litigant — sale as going concern transfers assets and liabilities — purchaser liable for judgment debt — refusal to stay pending appeal.
15 April 2008