Evidence by Commissions Act

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

Jurisdiction: Malawi
Instrument: Act or statute
Citation: Act 16 of 1967
Version: 31 Dec 2014
Language: en
Official source: View official record ↗

admissibility of evidence certified copies compliance court evidence court procedure court records document production judicial authority litigation litigation costs litigation procedure territorial applicability witness evidence witness examination witness testimony

Statute overview

About this statute

This Act may be cited as the Evidence by Commissions Act. In certain civil proceedings, a court in Malawi or its chief judge may appoint a fit person to examine a witness, and the resulting deposition or examination is admissible as evidence. If a witness in a Malawi criminal case is outside the court’s jurisdiction, the court or chief judge may appoint a judge, magistrate, or other judicial officer to take the witness’s examination, and that evidence is admissible. A person examined outside Malawi may be examined on oath, affirmation, or otherwise according to the law where the examination happens. A court or judge with authority under the Act may order a witness in Malawi to be examined for a foreign civil or commercial matter, and may also require attendance or production of documents.

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Provisions of Evidence by Commissions Act

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1
Short title
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This Act may be cited as the Evidence by Commissions Act.

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
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In certain civil proceedings, a court in Malawi or its chief judge may appoint a fit person to examine a witness, and the resulting deposition or examination is admissible as evidence.

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
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If a witness in a Malawi criminal case is outside the court’s jurisdiction, the court or chief judge may appoint a judge, magistrate, or other judicial officer to take the witness’s examination, and that evidence is admissible.

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
Section 4
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A person examined outside Malawi may be examined on oath, affirmation, or otherwise according to the law where the examination happens.

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
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A court or judge with authority under the Act may order a witness in Malawi to be examined for a foreign civil or commercial matter, and may also require attendance or production of documents.

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
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A diplomatic representative’s certificate can serve as evidence that an application concerns a pending civil or commercial matter and that the court or tribunal wants the witness’s testimony.

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 shall be evidence of the matters so certified. (2) Where no certificate is produced under the preceding subsection other evidence to that effect shall be admissible.
7
Examination on oath
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A person authorized by order under this Part may examine witnesses, and the witness must take the examination on oath or affirmation administered by that authorized person.

7. Examination on oath Every person authorized to take the examination of witnesses by order made in pursuance of this Part may take all such examinations upon the oath or affirmation of the witness to be administered by the person so authorized.
8
Expenses of witness
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A person required to attend under this Part is entitled to the same conduct money, expenses, and loss of time payment as for attendance at a trial.

8. Expenses of witness Every person whose attendance is required under this Part shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial.
9
Refusal to answer questions, etc
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People examined under an order made under this Part may refuse to answer incriminating questions, and a person who refuses to answer is not compelled to produce documents they could not be forced to produce at trial.

9. Refusal to answer questions, etc. (1) Every person examined under any order made under this Part shall have the like right to refuse to answer questions tending to incriminate himself and other questions which a witness in any cause pending in the court by which or by a judge whereof or before the judge by whom the order for examination was made would be entitled to. (2) Any person who refuses to answer a question under the preceding subsection shall not be compelled to produce under any such order as aforesaid any document that he would not be compellable to produce at a trial of such a cause.
10
Courts and judges having authority under this Part
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This section says which courts and judges have authority under this Part, and it treats “judge” as including a resident magistrate for this Part unless the context requires otherwise.

10. Courts and judges having authority under this Part (1) The High Court of Malawi and the court of a resident magistrate, and any judge or resident magistrate of any such court shall respectively be courts or judges having authority under this Part. (2) For the purposes of this Part, save as the context otherwise requires “judge” includes a resident magistrate.
11
Persons giving false evidence
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A witness under oath or affirmation must not wilfully give false evidence; doing so is perjury and attracts the penalties that apply to perjury.

11. Persons giving false evidence Notwithstanding any other written law, every person examined upon oath or affirmation as a witness under this Part, who upon such examination wilfully gives any false evidence shall be guilty of perjury and liable to the penalties therefor.
12
Countries to which this Part applies
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The Minister may declare, by notice in the Gazette, which countries this Part applies to.

12. Countries to which this Part applies The countries to which this Part applies shall be such countries as the Minister may, by notice published in the Gazette , declare to be countries to which this Part applies.

Part III

Law ascertainment

13
Ascertainment of law outside Malawi
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If a Malawi court needs foreign law to decide a case, it may have a case prepared and sent for an opinion; the parties can ask to be heard on the petition.

13. Ascertainment of law outside Malawi (1) Whenever in any action pending in any court in Malawi it appears to the court that it is necessary or expedient, for the proper disposal of the action before it, to ascertain the law applicable to the facts of the case as administered in another country on any point on which the law of such country is different from the law of Malawi, it shall be competent for the court in which the action is pending to direct a case to be prepared setting forth the facts— (a) as these may be ascertained by the practice and procedure of the court; (b) as may be agreed upon by the parties; or (c) by such person as may be appointed by the court for that purpose in the event of the parties not agreeing. (2) Upon the case being approved of by the court or a judge or magistrate thereof under subsection (1),— (a) the parties thereto shall settle the question of law arising out of the case on which they desire to have the opinion of another court; and (b) the judge or magistrate shall accordingly make an order remitting the question of law as settled under paragraph (a) together with the case to the court in the country whose opinion is desired upon the law administered by such court as applicable to the facts set forth in the case and desiring that court to pronounce its opinion on the question submitted to it under this Part. (3) It shall be competent for any of the parties to any such action to present a petition to the court whose opinion is to be obtained praying that that court may hear the parties or their counsel and to pronounce its opinion thereon under this Part or to pronounce its opinion without hearing the parties or their counsel. (4) The court to which a petition is presented shall, if it thinks fit, appoint an early date for hearing the parties thereto or their counsel and shall thereafter pronounce its opinion upon the questions of law as administered by it which are submitted to it by the court in Malawi. (5) The court to which the petition is presented shall be entitled to take such further procedure thereupon as it deems fit.
14
Certified copies of opinion
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When an opinion is pronounced under section 13, an officer of the court must give a certified copy to any party to the action who asks for it.

14. Certified copies of opinion (1) Whenever an opinion is pronounced under section 13 , a copy thereof certified by an officer of such court shall be given to each of the parties to the action by whom the same shall be required. (2) The copy of an opinion so certified shall be deemed and held to contain a correct record of the opinion.
15
Application of opinion
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A party may lodge a certified copy of the opinion with the court officer and give notice of motion; the court must then apply the opinion to the facts.

15. Application of opinion (1) It shall be competent for any of the parties to the action, after having obtained a certified copy of the opinion, to lodge the same with an officer of the court in which the action is pending, together with a notice of motion setting forth that the party will on a certain day named in the notice move the court to apply the opinion contained in the certified copy thereof to the facts set forth in the case. (2) The court shall thereupon apply such opinion to the facts in the same manner as if the same had been pronounced by the court itself upon a case reserved for the opinion of the court.

Part IV

Miscellaneous

16
Proof of acts of state
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Acts of state, proclamations, and treaties may be proved in Malawi courts by examined copies or duly authenticated copies.

16. Proof of acts of state (1) Subject to this section, all proclamations, treaties and other acts of state of any country may be proved in any court in Malawi or before any person having by law or by consent of parties authority to hear, receive and examine evidence either by examined copies or by copies duly authenticated. (2) A copy of any document mentioned in subsection (1), duly sealed or purporting to be sealed with the seal of the country to which the original document belongs, shall be deemed to be duly authenticated and shall be admissible in evidence to the same extent as the original document would be admissible in evidence, without proof of the seal thereon.
17
Rules
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The Minister may make rules, after consulting the Chief Justice, to give effect to the Act and regulate procedure under it.

17. Rules The Minister may, in consultation with the Chief Justice, make rules as shall be necessary or proper for giving effect to this Act and regulating the procedure thereunder.

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