CHAPTER 43:01
STAMP DUTIES

ARRANGEMENT OF SECTIONS

   SECTION

PART I
PRELIMINARY

   1.   Short title

   2.   Interpretation

   3.   Application of Act

   4.   Appointment of Commissioners of Stamp Duties

PART II
PROVISIONS APPLICABLE TO INSTRUMENTS GENERALLY

Charge of Duty upon Instruments

   5.   Liability to stamp duty

   6.   Time of stamping and liability for stamping

   7.   Duties, how to be paid

   8.   How instruments are to be written and stamped

   9.   Instruments to be separately charged in certain cases

   10.   Facts and circumstances affecting duty to be set forth in instruments

   11.   Mode of calculating ad valorem duty in certain cases

   12.   Instruments to be in English

Use of Adhesive Stamps

   13.   General directions as to cancellation of adhesive stamps

   14.   Penalty for frauds in relation to adhesive stamps

Denoting Stamps

   15.   Denoting stamps

Adjudication Stamps

   16.   Adjudication

   17.   Persons dissatisfied may appeal

Production of Instruments in Evidence and Instruments not duly stamped

   18.   Non-admissibility of unstamped instruments in evidence; and penalty

   19.   Stamping out of time

   20.   Certain improperly stamped instruments

   21.   Effect of non-compliance in case of certain bills of exchange

   22.   Instruments executed out of Malawi

Miscellaneous

   23.   Refund where instrument erroneously assessed

   24.   Splitting

   25.   Penalty for evasion of duty by splitting

   26.   Stamp where value of subject-matter is indeterminate

Recovery of Stamp Duty

   27.   Recovery of stamp duty

   28.   Stay of execution pending appeal

PART III
REGULATIONS APPLICABLE TO PARTICULAR INSTRUMENTS

Agreements

   29.   Certain mortgages of stock to be chargeable as agreements

   30.   Hire purchase or instalment sale agreement to be stamped

Bills of Exchange and Promissory Notes

   31.   Meaning of “bill of exchange” and “promissory note"

   32.   Provisions as to stamping foreign bills and notes

   33.   As to bills and notes purporting to be drawn abroad

   34.   Penalty for issuing, etc., any unstamped bill or note

   35.   One bill only of a set need be stamped

Conveyance on Sale

   36.   Meaning of “conveyance on sale"

   37.   How ad valorem duty is to be calculated in respect of stock and securities

   38.   How consideration consisting of periodical payments to be charged

   39.   Conveyance on sale with further covenant

   40.   How conveyance in consideration of a debt, etc., to be charged

   41.   Direction as to duty in certain cases of conveyances, mortgages and settlements

   42.   Certain contracts to be chargeable as conveyances on sale

   43.   As to sale of an annuity or right not before in existence

   44.   Principal instrument how to be ascertained

   45.   Duty on gifts inter vivos

Conveyances on any Occasion except Sale or Mortgage

   46.   What is to be deemed a conveyance on any occasion not being a sale or mortgage

Leases and Licences

   47.   Agreements to be charged as leases

   48.   Duty on leases in other cases

   49.   Duty on leases granted in perpetuity

   50.   Leases, how to be charged in respect of produce, etc.

   51.   Directions as to duty in certain cases

   52.   Duty on leases granted for inadequate consideration

   53.   Duty where consideration cannot be fixed with accuracy

   54.   Licences

Marketable Securities

   55.   Meaning of marketable securities for charge of duty and foreign and Commonwealth share certificate

   56.   Meaning of marketable security transferable on delivery and instrument to bearer

Mortgages, etc.

   57.   Meaning of “mortgage” and “equitable mortgage” and provisions in relation to equitable mortgages

   58.   Direction as to duty in certain cases

   59.   Security for advances, how to be charged

Partitions

   60.   Partitions

Policies of Insurance

   61.   Meaning of “policy of insurance", “policy of life insurance” and “policy of insurance against accident"

   62.   Penalty for not making out policy or making, etc., any policy not duly stamped

   63.   Assignment or surrender of policy of life insurance to be stamped

Receipts

   64.   Provisions as to duty upon receipts

   65.   Obligation to give receipt in certain cases, and penalty for offences in relation to receipts

Settlements

   66.   As to settlement of policy or security

   67.   Settlements, when not to be charged as securities

   68.   Where several instruments one only to be charged with ad valorem duty

PART IV
ALLOWANCES FOR STAMPS IN CERTAIN CASES

   69.   Allowance for spoiled stamps

   70.   Conditions upon which application under section 69 shall be granted

   71.   Allowance for misused stamps

   72.   Allowance for spoiled or misused stamps, how to be made

PART V
MISCELLANEOUS

   73.   As to discontinuance of duties

   74.   Conditions and agreements as to duty void

   75.   Compounding duty on cheques

   76.   The Commissioners may call for, and refuse to proceed without, evidence

   77.   Registers, books, etc., to be open to inspection

   78.   Search

   79.   Penalty for enrolling, etc., instrument not duly stamped

   80.   Responsibility for loss of or damage to instrument

   81.   Commissioners may administer oaths

   82.   Power to reward informers

PART VI
CRIMINAL OFFENCES AND PROCEDURE

   83.   Penalty for not drawing full number of bills purporting to be in sets

   84.   Penalty for post-dating bills and for other devices to defraud the revenue

   85.   Penalty for frauds in relation to stamp duties

   86.   Liability in the case of corporate bodies and firms

   87.   General penalty for acting and practising, etc., without licence

   88.   Exemptions from stamp duty

   89.   Regulations

      Schedule

10 of 1969
G.N. 27/1971
148/1981
15/1982
44/1984
45/1984
60/1985
30/1986
29/2009
13/2013

An Act to provide for the imposition of stamp duties, fees and penalties in respect of certain instruments, to provide for the stamping of such instruments, to provide for the management of stamp duties, fees and penalties and for other matters incidental thereto and connected therewith

[16TH MAY 1969]

PART I
PRELIMINARY

1.   Short title

   This Act may be cited as the Stamp Duties Act.

2.   Interpretation

   In this Act, unless the context otherwise requires—

   “adhesive stamp” means a stamp which may be securely fixed by means of an adhesive paste and by no other means;

   “banker” includes the Reserve Bank of Malawi, any banking business registered under the Banking Act, and any person conducting such a banking business:

   “bill of lading” includes a through bill of lading, but does not include a mate’s receipt;

   “bond” includes—

   (a)   any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;

   (b)   any instrument (other than a bill of exchange or promissory note) attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and

   (c)   any instrument so attested, whereby a person obliges himself to deliver any agricultural produce to another;

   “chargeable”, as applied to an instrument executed or first executed after the commencement of this Act, means chargeable under this Act, and, as applied to any other instrument means chargeable under the law in force in Malawi when such instrument was executed, or where several persons executed the instrument at different times, first executed;

   “cheque” has the meaning assigned to that expression in the Bills of Exchange Act;

   “the Commissioners” means the Commissioners of Stamp Duties appointed, or deemed to have been appointed under section 4, and includes one or any of them;

   “consideration” or “valuable consideration” includes valuable consideration in money or money’s worth, marriage or natural love and affection;

   “die” includes any plate, type, tool or implement whatever used under the direction of the Commissioners for expressing or denoting any duty, or rate of duty, or the fact that any duty or rate of duty or penalty has been paid, or that any instrument is duly stamped, or is not chargeable with any duty or for denoting any fee, and includes any part of any such plate, type, tool or implement;

   “duty” and “stamp duty” means any stamp duty for the time being leviable by means of stamps under any written law;

   “executed” and “execution” used with reference to any instrument not under seal means “signed” and “signature” respectively;

   “franked stamp” means a stamp denoted by means of a stamp franking machine in accordance with this Act or any regulations made thereunder;

   “impressed stamp” includes—

   (a)   labels affixed and impressed by the proper officer;

   (b)   stamps embossed or engraved on stamped paper;

   (c)   adhesive stamps over-embossed; and

   (d)   franked stamps;

   “instrument” includes every kind of written document;

   “marketable security” includes a security of such a description as to be capable of being sold on any stock exchange;

   “material” includes every sort of material on which words and figures can be expressed or denoted;

   “money” includes all sums expressed in Malawi currency, or in the currency of any country;

   “power of attorney” includes any instrument empowering a specified person to act for and in the name of the person executing it;

   “settlement” means any non-testamentary disposition in writing of movable or immovable property made—

   (a)   in consideration of marriage;

   (b)   for the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him; or

   (c)   for any religious or charitable purpose, and includes an agreement in writing to make such a disposition, and, where any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition;

   “stamp” means an impressed stamp, or an adhesive stamp used for denoting the payment of any stamp duty or fees or penalty under this Act;

   “stamped” or “duly stamped” means that the instrument referred to is stamped with the required and sufficient stamp and that such stamp has been cancelled, if necessary, in accordance with this Act;

   “stock” includes any share in the stock transferable at the Bank of England, and any share in the stocks or funds of the government of any Commonwealth or foreign country, or in the capital stock or funded debt of any local authority, corporation, company or society in Malawi or any Commonwealth country, or of any foreign corporation, company or society;

   “write”, “written", and “writing” includes every mode in which words or figures can be expressed or denoted upon material.

3.   Application of Act

   This Act shall apply to all stamp duties and to all fees and penalties which are for the time being directed to be collected or received by means of stamps under or by virtue of any written law.

4.   Appointment of Commissioner of Stamp Duties

   The Minister may, by notice published in the Gazette, appoint such public officers as he deems necessary to be Commissioners of Stamp Duties, who shall have the care and management of all stamp duties, fees and penalties to be collected or received under or by virtue of this Act:

   Provided that, until such time as the Minister appoints Commissioners under this section, the Commissioners appointed under section 4 of the Stamps Ordinance, repealed by this Act, shall be deemed to have been appointed Commissioners under this Act.

PART II
PROVISIONS APPLICABLE TO INSTRUMENTS GENERALLY

Charge of Duty upon Instruments

5.   Liability to stamp duty and alterations of stamp duty

   (1) Subject to the provisions of, and to the exemptions contained in, this Act and any other written law, every instrument specified in the Schedule, wheresoever executed, which relates to property situate, or any matter or thing done or to be done, in Malawi, shall be chargeable with the stamp duty specified in the Schedule.

   (2) The Minister may by order published in the Gazette amend the Schedule, imposing new stamp duties, or increasing, diminishing or repealing existing stamp duties or granting new exemptions.

   (3) An order made under subsection (2) shall not be made retrospective and shall cease to be of effect on the expiration of the period provided under subsection (4) unless approved by a resolution of the National Assembly in accordance with that subsection.

   (4) A resolution of the National Assembly approving an order made under subsection (2) shall be passed within 28 days of the date of commencement of such order:

   Provided that—

   (i)   if before the expiration of the said 28 days the National Assembly is dissolved or is prorogued or adjourned for more than 7 days such resolution shall be passed before the end of the next meeting of the National Assembly; or

   (ii)   if, on the date of commencement of the order the National Assembly is dissolved or is prorogued or adjourned such resolution shall be passed within 28 days of the next meeting of the National Assembly, or if the National Assembly is earlier dissolved or is earlier prorogued or adjourned for more than 7 days then before the end of the next following meeting of the National Assembly.

   (5) Where an order ceases to be of effect under subsection (3) the Schedule shall revert to what it was immediately before it was amended by such order.

6.   Time of stamping and liability for stamping

   (1) Subject to this Act or any other written law, every instrument, unless it is written on duly stamped material, shall be duly stamped with the proper duty before the expiration of thirty days after it is first executed, or after it has been first received in Malawi where it is first executed at any place outside Malawi, unless the opinion of the Commissioners with respect to the amount of duty with which the instrument is chargeable has, before the expiration of such period, been required under section 16.

   (2) If the opinion of the Commissioners with respect to the amount of duty with which any instrument is chargeable has been required under section 16, such instrument shall be stamped in accordance with the assessment of the Commissioners within thirty days of the date of notice of the assessment.

   (3) Where, in the Schedule or in any other written law, it is specified that an instrument is to be stamped before execution, such instrument shall be stamped before execution by any party thereto.

   (4) If any instrument which is chargeable with stamp duty is not duly stamped, the person or persons respectively specified in the Schedule or in any other written law as being liable for stamping shall be liable, or jointly and severally liable, as the case may be, to the Commissioners for the payment of the specified duty.

   (5) If any instrument which is liable to stamp duty is not duly stamped, every person specified in the Schedule or in any other written law as being responsible for stamping shall also be guilty of an offence and liable to a fine of £100.

   (6) Where in the Schedule or in any other written law the responsibility for stamping is imposed upon more persons than one, every person on whom the said responsibility is imposed may, if the instrument is not duly stamped, be proceeded against either civilly or criminally without reference to any civil liability of the parties inter se for the payment of the stamp duty.

7.   Duties, how to be paid

   (1) Except as otherwise expressly provided in this Act, all duties with which any instruments are chargeable shall be paid, and such payment shall be denoted upon such instruments, by means of stamps in such manner as the Minister may, in regulations made under this Act, prescribe.

   (2) Regulations made under subsection (1) may, inter alia, provide for—

   (a)   in the case of each kind of instrument, the description of stamps which may be used;

   (b)   in the case of instruments stamped with impressed stamps, the number of stamps which may be used.

   (3) Until regulations are made under this section any stamps which might lawfully be used immediately before the commencement of this Act for the payment of stamp duties may be used for the purposes of this Act.

8.   How instruments are to be written and stamped

   (1) Every instrument written upon stamped material shall be written in such manner, and every instrument partly or wholly written before being stamped shall be so stamped, that the stamp may appear on the face of the instrument, and cannot be used for, or applied to, any other instrument written upon the same piece of material.

   (2) If more than one instrument is written upon the same piece of material, every one of the instruments shall be separately and distinctly stamped with the duty with which it is chargeable.

9.   Instruments to be separately charged in certain cases

   (1) An instrument containing or relating to several distinct matters shall be separately and distinctly charged, as if it were a separate instrument, with duty in respect of each of the matters.

   (2) An instrument made for any consideration in respect whereof it is chargeable with ad valorem duty, and also for any further or other valuable consideration or considerations, shall be separately and distinctly charged, as if it were a separate instrument, with duty in respect of each of the considerations;

10.   Facts and circumstances affecting duty to be set forth in instruments

   (1) All the facts and circumstances affecting the liability of any instrument to duty, or the amount of the duty with which any instrument is chargeable, shall be fully and truly set forth in the instrument; and every person who with intent to defraud the Government—

   (a)   executes any instrument in which all the said facts and circumstances are not fully set forth; or

   (b)   being employed or concerned in or about the preparation of any instrument, fails fully and truly to set forth therein all the said facts and circumstances,shall be guilty of an offence and liable to a fine of £500.

   (2) The Commissioners may require any person executing, or any person employed or being concerned in or about the preparation of any instrument, to give evidence on oath, or by statutory declaration, as to the fullness and truth of the facts and circumstances set forth; and for the purpose of taking such evidence the Commissioners may summon any such person to appear before them, and the person so summoned shall be legally bound to appear and to answer such questions and to produce such documents as the Commissioners may put to him or require to be produced, as the case may be, relating to the facts and circumstances aforesaid.

11.   Mode of calculating ad valorem duty in certain cases

   (1) Subject to subsection (2), where an instrument is chargeable with ad valorem duty in respect of—

   (a)   any money in any currency other than that of Malawi; or

   (b)   any stock or marketable security,

the duty shall be calculated on the value, on the day of the date of the instrument, of the money in Malawi currency according to the current rate of exchange, or of the stock or security according to the average price thereof:

   Provided that where such stock or security is the consideration for any conveyance or transfer of property, and, in the opinion of the Commissioners, such consideration is inadequate having regard to the actual value of the stock or security, ad valorem duty shall be chargeable on the value of the property to be conveyed or transferred.

   (2) The current rate of exchange for the purpose of the conversion of any value expressed in a foreign currency shall be the rate of exchange on the particular day as the Commissioners may determine after consultation with the Governor of the Reserve Bank of Malawi.

   (3) Where an instrument contains a statement of current rate of exchange, or average price, as the case may require, and is stamped in accordance with that statement it shall, so far as regards the subject-matter of the statement, be deemed to be duly stamped, unless or until it is shown that the statement is untrue and that the instrument is in fact insufficiently stamped.

12.   Instruments to be in English

   Every instrument chargeable with duty shall be written in the English language, or shall have annexed thereto a full and accurate translation thereof into the English language, certified to the satisfaction of the Commissioners.

Use of Adhesive Stamps

13.   General directions as to cancellation of adhesive stamps

   (1) Where stamp duty is required or permitted by any written law to be denoted by adhesive stamps, each and every such stamp shall be cancelled in such manner as to render it incapable of being used again for any revenue purpose.

   (2) Where an instrument, the stamp duty on which is required or permitted by any written law to be denoted by adhesive stamps, is to be stamped before execution, or before issue, or before being parted with by the maker, or before the doing of any other act, the first person so executing, issuing or parting with such instrument or doing such other act, as the case may be, shall cancel such adhesive stamps.

   (3) Where an instrument, the stamp duty on which is required or permitted by any written law to be denoted by adhesive stamps, is to be stamped within a certain period after any event, the person affixing the adhesive stamps shall cancel them forthwith and before he parts with the instrument.

   (4) Subject to sections 19, 20, 32 and 34, an instrument, the stamp duty on which is denoted by an adhesive stamp, shall not be deemed to have been duly stamped unless such stamp has been cancelled as required by this section.

   (5) The person required by the foregoing provisions of this section to cancel an adhesive stamp shall cancel it by writing on or across the stamp his name or initials or the name or initials of his firm with the true date of his so writing.

   (6) Any person who neglects or refuses duly and effectively to cancel an adhesive stamp in accordance with the provisions of this section shall be guilty of an offence and liable to a fine of £25.

14.   Penalty for frauds in relation to adhesive stamps

   If any person—

   (a)   fraudulently removes or causes to be removed from any instrument any adhesive stamp, or affixes to any other instrument or uses for any other purpose any adhesive stamp which has been so removed with intent that the stamp may be used again; or

   (b)   sells, or offers for sale, or utters, any adhesive stamp which has been so removed, or utters any instrument, having thereon any adhesive stamp which has to his knowledge been so removed as aforesaid,he shall be guilty of an offence and liable, in addition to any other fine or penalty to which he may be liable, to a fine of £100.

Denoting Stamps

15.   Denoting stamps

   Where the duty with which an instrument is chargeable depends in any manner upon the duty paid upon another instrument, the payment of the last-mentioned duty shall, upon application to the Commissioners and production of both the instruments, be denoted upon the first-mentioned instrument in such manner as may be prescribed.

Adjudication Stamps

16.   Adjudication

   (1) Subject to any regulations made under this Act, the Commissioners may be required by any person to express their opinion with reference to any executed instrument upon the following questions—

   (a)   whether it is chargeable with any duty;

   (b)   with what amount of duty it is chargeable.

   (2) If the Commissioners are of the opinion that the instrument is not chargeable with any duty, it shall be stamped with a particular stamp denoting that it is not chargeable with any duty.

   (3) If the Commissioners are of the opinion that the instrument is chargeable with duty, they shall assess the duty with which it is, in their opinion, chargeable, and when the instrument is stamped in accordance with the assessment it shall be stamped with a particular stamp denoting that it is duly stamped.

   (4) Every instrument stamped with the particular stamp, denoting either that it is not chargeable with any duty or that it is duly stamped, shall be admissible in evidence and available for all purposes notwithstanding any objection relating to duty.

   (5) Nothing in this section shall extend to any instrument chargeable with ad valorem duty, and made as a security for money or stock without limit; or shall authorize the stamping after the execution thereof of any instrument which by law cannot be stamped after execution.

   (6) A statutory declaration made for the purpose of this section shall not be used against any person making the same, in any proceedings whatever, except in an inquiry as to the duty with which the instrument to which it relates is chargeable; and, if such declaration is true, every person by whom it is made shall, on payment of the duty chargeable upon the instrument to which it relates, be relieved from any fine or disability to which he may be liable by reason of the omission to state truly in the instrument any fact or circumstance required by this Act to be stated therein.

17.   Persons dissatisfied may appeal

   (1) Any person who is dissatisfied with the assessment of the Commissioners may, within 14 days after the date of the assessment, and on payment of duty in conformity therewith, or on securing the same to the satisfaction of the Commissioners, appeal against the assessment to the High Court, and may for that purpose require the Commissioners to state and sign a case, setting forth the question upon which their opinion was required, and the assessment made by them.

   (2) A sum of fifteen pounds shall be lodged with the Commissioners as security for the costs referred to in subsection (6).

   (3) The Commissioners shall thereupon state and sign a case and deliver the same to the person by whom it is required, and the case may, within seven days thereafter, and after service thereof upon the Attorney-General, be set down by such person for hearing.

   (4) Upon the hearing of the case the court shall determine the question submitted, and, if the instrument in question is in the opinion of the court chargeable with any duty, shall assess the duty with which it is chargeable.

   (5) If it is decided by the court that the assessment of the Commissioners is erroneous, any excess of duty which may have been paid in conformity with the erroneous assessment, together with any fine or penalty which may have been paid in consequence thereof, shall be ordered by the court to be repaid to the appellant, with or without costs as the court may determine.

   (6) If the assessment of the Commissioners is confirmed wholly or in part, the court may make an order for payment to the Commissioners of the costs incurred by them in relation to the appeal.

Production of Instruments in Evidence and Instruments not duly Stamped

18.   Non-admissibility of unstamped instruments in evidence; and penalty

   (1) Subject to subsection (3) and to sections 19 and 20 no instrument chargeable with stamp duty shall be received in evidence in any proceedings whatsoever, except—

   (a)   in criminal proceedings; and

   (b)   in civil proceedings by the Commissioners to recover stamp duty,unless such instrument is duly stamped.

   (2) No instrument chargeable with stamp duty shall be filed, enrolled, registered or acted upon by any person unless such instrument is duly stamped.

   (3) Upon the production to any court (other than a criminal court), arbitrator, referee, or to any officer or servant of the Government of any instrument which is chargeable with stamp duty and which is not duly stamped, it shall be the duty of such court, arbitrator, referee, or officer or servant, to take notice of the omission or insufficiency of the stamp on such instrument and thereupon to take action in accordance with the following provisions—

   (a)   if the period of time within or before which the instrument should have been stamped has expired and the instrument is one in respect of which a person is specified in the Schedule as being liable for the stamping thereof, the instrument shall be impounded and, unless the instrument has been produced to the Commissioners, shall forthwith be forwarded to the Commissioners;

   (b)   in any such case, before the exclusion or rejection of the instrument, the person tendering such instrument shall, if he desires, be given a reasonable opportunity of applying to the Commissioners for leave under section 19 or of obtaining a certificate under section 20;

   (c)   in all other cases, unless otherwise expressly provided in this Act, the instrument shall, saving all just exceptions on other grounds, be received in evidence upon payment to the court, arbitrator or referee of the amount of the unpaid duty and of the penalty specified in subsection (5) and such duty and penalty, if any, shall forthwith be remitted to the Commissioners with the instrument to be stamped after the instrument has been admitted in evidence.

   (4) If any person is empowered or required by any written law to act upon, file, enrol or register a duplicate or copy of any instrument, and if the original of such instrument would require to be duly stamped if acted upon, filed, enrolled or registered by such person, such person may call for the production of the original instrument or for evidence to his satisfaction that it was duly stamped, and no person shall act upon, file, enrol or register any such duplicate or copy without production of the original instrument duly stamped or of evidence as aforesaid.

   (5) The penalty on stamping any instrument out of time referred to in subsection (3) (c) shall be ten shillings in respect of every pound and of any fractional part of one pound of the duty chargeable thereon and in respect of every period of three months or any part of such a period after the expiration of the time within or before which the instrument should have been stamped.

19.   Stamping out of time

   (1) Where an instrument is chargeable with stamp duty under this Act and should have been stamped before a certain event or before the expiration of a certain period, but has not been so stamped, the Commissioners may give leave for the stamping of such instrument if they are satisfied—

   (a)   that the omission or neglect to stamp did not arise from any intention to evade payment of stamp duty or otherwise to defraud; and

   (b)   that the circumstances of the case are such as to justify leave being given.

   (2) If the Commissioners grant leave under subsection (1) for the stamping of any instrument, such instrument shall be stamped on payment of the unpaid duty and of a penalty of five shillings in respect of every pound and of any fractional part of one pound of the duty chargeable thereon and in respect of every period of three months or any part of such period after the expiration of the time within or before which the instrument should have been stamped:

   Provided that the Commissioners may, in their discretion, remit the whole or any part of the penalty provided by this subsection.

   (3) Where an instrument has been stamped by leave under this section, such instrument shall be deemed to have been duly stamped.

   (4) Notwithstanding the provisions of this section, no bill of exchange or promissory note shall, except as provided in sections 20, 21, 32 and 34 be stamped after execution.

20.   Certain improperly stamped instruments

   Subject to this Act, where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which the same is chargeable and of a penalty of ten shillings, be certified to be duly stamped, and any instrument so certified shall then be deemed to have been duly stamped.

21.   Effect of non-compliance in case of certain bills of exchange

   Notwithstanding any written law to the contrary, a bill of exchange, which is presented for acceptance, or accepted, or payable, outside Malawi, or a cheque, whether presented for acceptance, or accepted, or payable, outside or inside Malawi, shall not be invalid by reason only that it is not stamped in accordance with this Act, and any such bill of exchange or cheque which is unstamped or not properly stamped may be received in evidence on payment of the proper duty and penalties as provided by sections 18 and 19.

22.   Instruments executed out of Malawi

   Every instrument executed out of Malawi by any person, not being a bill of exchange or a promissory note, shall, before being used, brought into force or registered, within Malawi be stamped according to the rate of duty chargeable thereon in accordance with this Act, whatever the provision of the Schedule may be with regard to the time before which or the period within which such an instrument, if executed in the first instance within Malawi, should be stamped.

Miscellaneous

23.   Refund where instrument erroneously assessed

   Where the Commissioners are satisfied that an instrument has been erroneously assessed with duty or penalty, they may, if application for a refund is made at any time within one year after the date of the payment of that duty or penalty, refund the amount thereof to the person by whom it was paid.

24.   Splitting

   (1) Where any minimum amount is prescribed below which stamp duty shall not be payable, no person shall execute more instruments than would ordinarily be necessary for the transaction in question, in order to evade stamp duty by such splitting.

   (2) Where a scale is prescribed under which the rate of stamp duty is increased after passing certain limits, no person shall execute more instruments than would ordinarily be necessary for the transaction in question, in order to evade stamp duty by such splitting.

   (3) In any question whatsoever arising under this section the onus of proof shall lie upon the person who asserts that there has been no splitting in order to evade stamp duty.

25.   Penalty for evasion of duty by splitting

   Any person executing an instrument in contravention of section 24 shall be guilty of an offence and liable to a fine of £250.

26.   Stamp where value of subject-matter is indeterminate

   Where the amount or value of the subject-matter of any instrument chargeable with ad valorem duty cannot be, or (in the case of an instrument executed before the commencement of this Act) could not have been, ascertained at the date of its execution, or first execution, nothing shall be claimable under such instrument more than the highest amount or value for which, if stated in an instrument of the same description, the stamp actually used would, at the date of such execution, have been sufficient:

   Provided that if the owner of an instrument which was duly stamped in accordance with the information then available to him receives information showing that the instrument is insufficiently stamped, and produces the instrument with the information to the Commissioners within fourteen days after such receipt, the instrument may be stamped without penalty for such further sum as is proper, but this proviso shall not apply to instruments which are required to be stamped before execution.

Recovery of Stamp Duty

27.   Recovery of stamp duty

   Stamp duty in arrear may be recoverable by civil suit as a debt due to the Commissioners from any person liable, or, on the ex parte application of the Commissioners to any competent court and without the institution of a suit, may be recovered from the person liable in manner following—

   (a)   a statement in writing by any Commissioner shall be sufficient evidence of the amount of stamp duty in arrear and payable by the person therein named;

   (b)   on production of the statement of the Commissioner and on proof of service of the statement on the person liable to pay the stamp duty, the court shall make an order for the payment by such person of the stamp duty in arrear together with the costs of the application, and may direct the immediate execution of the order;

   (c)   the order shall as soon as possible be served on the person concerned who may at any time within fourteen days after such service apply to the court for the order to be discharged, and the order may then be discharged on any ground which would be a valid defence to proceedings for recovery of stamp duty;

   (d)   property liable to attachment and sale in execution of the order may be seized immediately after the order is made, but shall not be sold until the time for applying for discharge of the order has elapsed and any application for such a discharge has been disposed of.

28.   Stay of execution pending appeal

   Where, in any proceedings for the recovery of stamp duty or for the discharge of an order for payment of stamp duty, it appears that an appeal against the assessment is pending or that the time for so appealing has not yet elapsed, the court may, if it thinks fit, grant a stay of execution for such period and on such terms as it thinks just.

PART III
REGULATIONS APPLICABLE TO PARTICULAR INSTRUMENTS

Agreements

29.   Certain mortgages of stock to be chargeable as agreements

   (1) Every instrument under hand only (not being a promissory note or bill of exchange) given upon the occasion of a deposit of any share warrant or stock certificate to bearer, or Commonwealth or foreign share certificate, or any security for money transferable by delivery, by way of security for any loan, shall be deemed to be an agreement, and shall be charged with duty accordingly.

   (2) Every instrument under hand only (not being a promissory note or bill of exchange) making redeemable or qualifying a duly stamped transfer intended as a security of any registered stock or marketable security shall be deemed to be an agreement and shall be charged with duty accordingly.

   (3) A release or discharge of any such instrument shall be charged with the like duty.

30.   Hire purchase or instalment sale agreement to be stamped

   The exemption numbered (1) under the heading AGREEMENT OR ANY MEMORANDUM OF AN AGREEMENT in the Schedule shall not apply in the case of any agreement for or relating to the supply of goods on hire, whereby the goods, in consideration of periodical payments, become or may become the property of the person to whom they are supplied.

Bills of Exchange and Promissory Notes

31.   Meaning of “bill of exchange” and “promissory note”

   For the purposes of this Act, “bill of exchange” and “promissory note” shall have the meanings assigned to these expressions in the Bills of Exchange Act.

32.   Provisions as to stamping foreign bills and notes

   (1) Every person into whose hands any bill of exchange or promissory note drawn or made outside Malawi comes into Malawi before it is stamped shall, before he presents it for payment, or endorses, transfers or in any manner negotiates, or pays, the bill or note, affix thereto the proper stamp, and, if an adhesive stamp, cancel the same:

   Provided that—

   (i)   if at the time when any such bill or note comes into the hands of any bona fide holder there is affixed thereto an adhesive stamp effectually cancelled, the stamp shall, so far as relates to the holder, be deemed to be duly cancelled, although it may not appear to have been affixed or cancelled by the proper person; and

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