High Court Judge Mike Tembo has thrown out an application for interlocutory injunction by Chawezi Banda ( also known as Cha Cha), who was suing Hannah Jabesi (also known as Tamia Ja) for defamation, saying her application, made through lawyer Chance Gondwe was full of technical lapses.
The court has also condemned the applicant with costs.
Cha Cha, who lives in the United States, sought an injunction to stop Tamia Ja from publishing defamatory content about her on social media platforms like Facebook and YouTube, and also that she removes existing defamatory materials from her pages.
Through her lawyer Stanley Chirwa, Tamia Ja applied for the dismissal of the application for noncompliance with the rules.
According to the ruling which we have seen, Chirwa argued that the claimant’s application was not supported by a sworn statement, because the one which was filed in court, showed that Cha Cha signed the statement on 30th June 2025 in Blantyre, which later transpired that on the said date she was not in Malawi.
The rules, according to the ruling, require that on attesting sworn statements, and both the deponent and a Commissioner for Oaths shall be physically present for that purpose.
“The sworn statement filed by the claimant shows that it was signed by the claimant before a Commissioner for Oaths, being Counsel Chikondi Mmmanga Kasambara in this case. It also showed that the claimant signed the sworn statement at Blantyre.
“The fact of the matter is that the claimant was not in Blantyre on 30th June 2025. She admitted this fact during cross-examination by the defence at the hearing of the defendant’s application herein. When pressed as to what actually happened on her making the impugned sworn statement, during the said cross-examination, the claimant was at pains to describe the process that was involved in her making her sworn statement before Counsel Chikondi Mmanga Kasambara.
“The claimant unsuccessfully suggested that she made her sworn statement virtually. What she indicated is that she asked Counsel Chikondi Mmanga Kasambara to sign the witness statement that she had prepared and Counsel Kasambara signed the same. She indicated that she did this in liaison with her lawyers.
“The claimant had asserted in her sworn statement in opposition to the defendant’s application that she made the sworn statement herein virtually. There was no elaboration as to what she actually did which is what was explored in detail during her cross-examination,” read part of the ruling.
Further, Chirwa argued that if an electronic signing of the sworn statement was to be done by the claimant virtually she should have complied with section 8 of the Electronic Transactions and Cyber Security Act which provides that where a law requires a document to be signed, an electronic form of the document shall satisfy the requirement if an electronic signature is used.
“The section provides the conditions on authenticity of such an electronic signature. The defendant contended that the claimant never satisfied the requirement under this Act on electronic signatures. In this regard, during cross-examination, the claimant indicated that she had signed the sworn statement using a different signature and sent the statement to the Commissioner for Oaths for attesting.
“Nothing can be further from the truth. There is no evidence that the claimant used an electronic signature to comply with the Electronic Transactions and Cyber Security Act. It is clear that the impugned signature of the claimant is in black ink denoting that it was meant to convey the impression that the claimant took the oath at Blantyre and signed her witness statement as attested by the Commissioner for Oaths. This Court agrees with the defendant that the claimant therefore has no sworn statement in support of her application for injunction,” reads the ruling
Further, the judge faulted Cha Cha’ s lawyer for delivering the summons to Tamia through WhatsApp.
Chirwa argued that despite that Tamia told the lawyer that the summons be send through the WhatsApp, this service was ineffective under the Rules of Procedure saying that the law is the law and that as an unrepresented litigant at the time she was asked about service she could not dictate service other than as prescribed by the law of procedure.
“This Court finds some compelling force in the claimant’s argument that indeed the defendant having indicated that she be served by WhatsApp, she cannot now turn around and say that she was not effectively served the application and the summons.
“A summons shall be served personally unless one applies for substituted service. See Order 8 Rule 2 of the Courts (High Court) (Civil Procedure) Rules. Other documents, such as the claimant’s application for interlocutory injunction may be served personally or by leaving it at a party’s address of service, by sending to a party’s address of service by prepaid post, registered mail, courier service, facsimile, or if the party has given an address for service by electronic mail, by electronic mail.
“It is the firm view of this Court, in agreement with the defendant, that the Rules are clear on service of documents that the claimant has to serve documents as prescribed. In this case, service via WhatsApp can only be had as substituted service on application to the Court. It was the duty of the claimant to ensure that service was effected by the required methods under the Rules.
“The claimant never applied to this Court to have service effected by WhatsApp. That means that the service effected herein was indeed not effective as it is contrary to the Rules, as correctly submitted by the defendant. The duty to comply with those Rules rests with the claimant. Represented litigants cannot therefore be allowed to relax in this regard, as correctly submitted by the defendant.
“If we want to make service by WhatsApp at par with service by electronic mail then the Rules on service ought to be changed accordingly. One may argue vigorously, as the claimant did, that indeed time for such a review is here. But until that is done, methods of service as provided by the Rules are important and we are to observe the Rules on service as contended by the defendant. Rules are rules and validating the claimant’s service by WhatsApp herein will not sit well with the said Rules,” reads the ruling
