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Malawi Supreme Court of Appeal - 2010 July

4 judgments
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4 judgments
Citation
Judgment date
July 2010
Jussab v NBS Bank (2 of 2010) [2010] MWSC 16 (27 July 2010)
Respondent bank breached its contractual duty by failing to register its charge and timely complete transfer, causing applicant loss.
Contract law – sale by auction – Conditions of Sale and Acceptance – purchaser acquires equitable interest pending conveyance; Conveyancing – obligation of vendor/bank to obtain government consent and effect transfer; Land law/statutory procedure – registration of charge and compliance with Adjudication of Title Act; Causation and damages – failure to register charge and undue delay causing purchaser's loss; Appeal – appellate interference where lower court findings contrary to weight of evidence.
 27 July 2010
Portland Cement Company v Chikhaza (3 of 2010) [2010] MWSC 14 (27 July 2010)
Appeals against costs-only orders require leave; appeals improperly brought and lacking leave were dismissed for want of jurisdiction.
Civil procedure — Appeal against costs-only order — Leave required from court below — Scherer principle where judge failed to exercise judicial discretion; Procedural competence — challenging earlier jurisdictional directions must be appealed within time or by leave.
 27 July 2010
Mfune v Indefund (25 of 2009) [2010] MWSC 11 (8 July 2010)
A subsequent challenge to a sale under a charge was barred by res judicata; fraud or absence do not justify fresh proceedings.
Civil procedure – res judicata (cause of action estoppel) – same parties, same issue, same subject matter – new facts/fraud must be raised by setting aside or appeal – absent party with filed defence and skeleton arguments does not necessarily render judgment a default.
 8 July 2010
Council for The University of Malawi v Masiye (21 of 2009) [2010] MWSC 15 (1 July 2010)
An absent party should ordinarily apply to the trial court to set aside a default judgment; Court of Appeal may only in exceptional cases hear a direct appeal.
Civil procedure – Default judgment – Order 35 r.2(1) – Application to set aside judgment – Preferred procedure is application to trial court (preferably trial judge) – Court of Appeal’s discretion to hear direct appeal in appropriate cases – Direct appeal inappropriate where vital evidence not before trial court.
 1 July 2010