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Malawi Supreme Court of Appeal - 2017 December

4 judgments
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4 judgments
Citation
Judgment date
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