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Malawi Supreme Court of Appeal - 2017 December

4 judgments
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4 judgments
December 2017
Electricity Supply Commission of Malawi v Kondowe t/a Saveman Investment (MSCA Civil Appeal 67 of 2017) [2017] MWSC 8 (20 December 2017)
Application to stay assessment of damages pending appeal dismissed as premature and lacking evidence of irreparable prejudice.
  • Civil procedure — Stay of proceedings pending appeal — interlocutory judgment where damages to be assessed — discretion to grant stay guided by risk of injustice — applicant must show inability to recover payments or special circumstances — prematurity of application to stay assessment; appropriate remedy is stay of execution after assessment.
20 December 2017
Phekani v NBS Bank Limited (Civil Appeal 66 of 2017) [2017] MWSC 5 (20 December 2017)
Applicant’s direct application for interim injunction refused; must apply to court below first and consent order barred variation without fresh action.
  • Civil procedure — interim injunction pending appeal — requirement to apply first in the court below (Order I r 18) — leave to appeal — consent order as binding agreement not varied by summons — mortgage law — power of sale and balance of convenience.
20 December 2017
Phekani v NBS Bank Limited (MSCA Civil Appeal 66 of 2017) [2017] MWSC 9 (20 December 2017)
Court dismissed interim injunction to restrain bank sale due to procedural defects and weak substantive grounds.
  • Civil procedure — Interim injunction pending appeal — Requirement to apply first in the court below (Order I r 18) — Leave to appeal required (proviso to s.21) — Consent order binding; variation requires fresh action — Mortgage law: reluctance to restrain power of sale where mortgagor defaults.
20 December 2017
Gomani & Muza v R (MSCA Criminal Appeal 5 of 2016) [2017] MWSC 26 (7 December 2017)
An unconditionally admitted counsel has a right of audience that can only be removed by statutory procedure; Oberem v Oberem stands until set aside.
  • Right of audience on admission to the bar; removal of right of audience only by statutory process; requirement for gazetting subsidiary legislation; Malawi Law Society standards; High Court/Chief Justice procedure to remove counsel’s standing; effect of Oberem v Oberem pending appeal.
7 December 2017