EVIDENCE BY COMMISSIONS

CHAPTER 4:03
EVIDENCE BY COMMISSIONS

ARRANGEMENT OF SECTIONS

    SECTION

    1.    Short title

PART I
EVIDENCE BY COMMISSIONS OUTSIDE MALAWI

    2.    Evidence in civil proceedings

    3.    Evidence in criminal proceedings

    4.    Effect of evidence taken on commission

PART II
EVIDENCE BY COMMISSIONS WITHIN MALAWI

    5.    Examination of witnesses in matters before foreign courts or tribunals

    6.    Certificate of diplomatic representative

    7.    Examination on oath

    8.    Expenses of witness

    9.    Refusal to answer questions, etc.

    10.    Courts and judges having authority under this Part

    11.    Persons giving false evidence

    12.    Countries to which this Part applies

PART III
LAW ASCERTAINMENT

    13.    Ascertainment of law outside Malawi

    14.    Certified copies of opinion

    15.    Application of opinion

PART IV
MISCELLANEOUS

    16.    Proof of acts of state

    17.    Rules

16 of 1967
9 of 1977

    An Act to provide for the taking of evidence within or without Malawi in relation to proceedings pending before courts within or without Malawi, for the ascertainment of foreign laws, and for other purposes connected therewith

1.    Short title

    This Act may be cited as the Evidence by Commissions Act.

PART I
Evidence by Commissions Outside Malawi

2.    Evidence in civil proceedings

    Where in any civil proceedings in any court in Malawi, an order for the examination of any witness has been made and a commission, order or other request for the examination of such witness has been addressed to any court of competent jurisdiction outside Malawi, such latter court or the chief judge thereof may nominate some fit person to take the examination, and any deposition or examination taken before an examiner so nominated shall be admissible in evidence to the same extent as if it had been taken by or before the court to which the commission, order or request was addressed.

3.    Evidence in criminal proceedings

    Where in any criminal proceedings in Malawi an order for the examination of any witness, who is to be found outside the jurisdiction of the Malawi courts, has been made, and a commission, order or other request for the examination of such witness has been addressed to a court of competent jurisdiction in the country in which such witness is to be found, such court or the chief judge thereof may nominate any judge or magistrate or other judicial officer within the jurisdiction of such court to take the examination of such witness and any deposition or examination so taken shall be admissible in evidence to the same extent as if it had been taken by or before the court to which the said commission, order or other request was addressed.

9 of 1977

4.    Effect of evidence taken on commission

    Whenever, in pursuance of sections 2 and 3 any person is examined outside Malawi, such person may be examined on oath, affirmation or otherwise in accordance with the law in force in the place where the examination is taken, and any deposition or examination so taken shall be as effectual for all purposes as if the witness had been so examined before the court in Malawi ordering the examination.

PART II
EVIDENCE BY COMMISSIONS WITHIN MALAWI

5.    Examination of witnesses in matters before foreign courts or tribunals

    (1) Whenever, upon application being made for this purpose, it appears to a court or a judge having authority under this Act, that any court or tribunal of competent jurisdiction of any country to which this Part applies before which any civil or commercial matter is pending, is desirous of obtaining the testimony, in relation to such matter, of any witness within Malawi such court or judge having authority under this Act may order the examination of such witness upon oath or affirmation, upon interrogatories or otherwise before any person named in such order, and by the same or subsequent order may command the attendance of any person named in such order for the purpose of being examined or the production of any document specified in such order.

    (2) Any order made under subsection (1) may give such directions as to the time, place and manner of the examination and all matters connected therewith as may appear reasonable and just, and any such order may be enforced in like manner as an order made in a cause pending in the court or before the judge concerned.

6.    Certificate of diplomatic representative

    (1) A certificate under the hand of a diplomatic representative of the country concerned that any matter in relation to which an application is made under this Part is a civil or commercial matter pending before a court or tribunal in the country of which he is the diplomatic representative and that such court or tribunal is desirous of obtaining the testimony of the witness to whom the application relates…