IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL CASE NO. 36 OF 2005
BETWEEN:
THOKOZANI SONANI APPLICANT
AND
EDSON SONANI RESPONDENT
CORAM: CHOMBO, J
Lungu of Counsel for Applicant
Mussa of Counsel for Respondent
Chulu, Court Interpreter
R U L I N G
The applicant and respondent are wife and husband whose marriage is estranged and living separately. Divorce proceedings have been files in the lower court.
The two have two children between then, the subject of this action. The children, until recently were living with heir mother, the applicant. One time she went to work outside Lilongwe and left the children with their nanny. On return she found that the respondent had come and collected the children and is refusing to return them to the applicant. The children are of very tender age.
It is these circumstances that prompted the applicant to commence proceedings under O.29 RSC asking the court to make an interlocutory order restraining the respondent by himself, his servants, agents or otherwise from continuing to keep, detain or interfere with the appellants right to custody of the children until the divorce proceedings in the lower court are determined.
Respondents counsel pointed out a defect in the applicants affidavit. According to the affidavit before me the first name to appear is that of Thokozani Sonani [nee Chimzimu] of P/Bag 26, Lilongwe. The same document however shows the deponent by one MTISUNGE CHITHENGA. When the respondents counsel pointed out this anomaly I was of the view that applicants counsel, in his response, would clarify the issue. Counsel chose not to resulting in an incurable defect which the court cannot ignore. I must therefore strike out the application because of a defective affidavit.
I order that each party bears its own costs.
MADE in Chambers this 15th day of July, 2005.
E. Chombo
JUDGE