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Malawi Supreme Court of Appeal - 2010 July

4 judgments
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4 judgments
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