Geideon & Ors. v Donken (Civil Appeal 84 of 2018) [2019] MWHC 121 (27 March 2019)

REPUBLIC OF MALAWI MALAWI JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL APPEAL NUMBER 84 OF 2018 BETWEEN AEFE GIDEON and OTHERS..................................... APPELLANT -and- BATSON DONKEN ................................................... RESPONDENT Coram: Honorable Mr. Justice D. T. K. Madise Mr. M. G. Chipeta Counsel for the Appellant Respondent present /unrepresented Mr. Mike Mbekeani Official Court Interpreter Madise, J - JUDGMENT - - Introduction 1. The parties first appeared in the Second Grade Magistrate, s Court sitting at Chikwawa under Civil Cause No. 51 of 2016. The Respondent herein had dragged the appellants over a land dispute. The court below ruled in favor of the respondent. The appellants being unhappy with that decision now appeal to this court against the whole judgment. It is trite law that appeals in the High Court are by way of rehearing of a!I the evidence, the law applied and the reasons for the decision of the court below. The grounds of appeal 2. The Appellants filed two grounds of appeal which we reproduce as filed. 1) The lower court erred in law by holding that as Chief the respondent was entitled to ownership of the appellants' land. There was no evidence to prove that the respondent is a Chief and there was no evidence to prove that the respondent owned the land in issue. 2) The lower court erred in law in ordering that the land revert to the respondent and that the appellants vacate the said land. The said order and judgment is not supported by evidence and is against dictates of the low. 3. The appellants are now seeking an order setting aside the lower court's judgment. The Facts - 4. The respondent told the court below that he was a Village Headman Feremu of Feremu Village, T / A Masea in Chikwawa and that the appellants were his subjects. He was installed as such in 1985. He stated that the land in dispute was originally flooded and a river was created passing through the land. When th e river dried up dry land was created and the respondent decided to distribute the land to his subjects. 5. Unfortunately in 2002 he got arrested and he was imprisoned for six months. When he was released, he found that the appellants have distributed the land among themselves and occupied it . 6. The respondent confronted the appellants and ordered them to vacate the land but they refused . The matter was referred to T / A Masea but the appellants refused to move out of the land. Even when Pammount Lundu ordered the appellants to vacate the disputed land , the appellants refused to move out. The respondent then went to court. 7. As the appellants testified and gave the court the reasons why they cou ld not move out of the land. Rosalia Brazilio, stated that he inherited the land from his father who passed away in 1984. Mavuto Mchenga stated that he was given the piece of land by Village Headman Dziwanzina from the neighboring village. Kadambo Kalaitoni stated tha1 he inherited the land from his father. Namaona Kalaitoni, denied occupying the land illegally but did not state how she was found on the land . Joice Kalaitoni stated that she inherited the piece of land from her father. - Petro Andrea stated that he inherited the piece of land from his father. He denied that his father was given the piece of land by the respondent. Jenason stated that he inherited th e land from his grandmother who was given the piece of land by the former village Headman. Charles Mchenga stated that he was given the piece of land by Group Village Headman Kalima and denied th at he occupied the land when the respondent was in prison. Luka Mthephuya stated that he was given the piece of land by Village Headman Kalima. Maxwell Mission stated that he was given the piece of land by his father. Kolex Ganizani stated that he inherited th e piece of land from his father who was given by the former Vi llage Headman Felemu. Mission Daelo denied grabbing the land when the Respondent was in prison. He did not say how he was found on the land. 8. In its judgment the trial court found that the appellants had unlawfully occupied the land and the respondent as Chief had the authority over the piece of land and how it was going to be administered. The court below cited section 26 of the Land Act which empowers a minister to delegate the power to administer land to a Chief. The court below then ordered the appellants to vacate the land as it had reverted to the respondent as a Chief. - . . 9. The burden and standard of proof in civil matters is well articulated in the celebrated case of Miller vs. Minister of pension ( 1947). All ER 372 at 373- 37 4 in which Lord Denning gave perhaps the best definition of how a court should balance and weigh the evidence before it in a civil matter as opposed to a criminal case. He proceeded as follows . "If the evidence is such that the tribunal can say we think it is probable than not. The burden has been discharged but if the probabilities are equal, it is not. Several local authorities have validated the Miller case and it is now settled law that the burden and standard of proof is set at the beginning of the trial by the state of pleadings and remaining unchanged throughout the duration of the trial. In simple terms, he/she who alleges the existence of certain facts must be the first to prove his/her case as in the ordinary state of things a positive is easier to prove than a negative. The Finding I will proceed with my judgment on appeal by resorting to section 26 of the Land Act which provides as follows. The Minister shall subject to this Act and to any other low for the time being in force, administer and control all customary land and all minerals in, under or upon any customary land for the use or common benefit direct or indirect of the inhabitants of Malawi. • .. - Provided that a Chief may subject to the general or special directions of the Minister, authorize the use and occupation of any customary land within his area in accordance with customary la. ' . Section 2 Chiefs Act In this Act, unless the context otherwise requires - "Chief" means a person holding or acting in the office of Chief under this Act. "Village Headman" means a person appointed to be a Village Headman under section 9. The schedule to the Chiefs Act provides that section 6 of Chikwawa District under which the land in dispute is situated is under Chief Maseya. It is clear from the evidence that the respondent is not a chief. He is a mere Village Headman and he has no authority under the Chiefs Act as read with the Land Act to administer customary land directly or indirectly as authorized by the minister responsible for land matters. I agree with the appellants that the trial court misdirected itself on a point of law by declaring that the respondent as chief had authority over the land in dispute. This declaration was wrong in law and is hereby reversed. The judgment of the court below is hereby set aside and I now order as follows. - The final determination as to who settles on the piece of land in issue lies with T / A Maseya (Chief) who has been given the authority under law to administer customary land in his area of jurisdiction. In making such a determination, the chief shall be guided by the rules of national justice and bearing in mind that no one can be deprived of usage and occupation of customary land without due process of law. . ' .. - in making such a determination Chief Masea shall consult his Village Headmen whose subjects are affected by this dispute and prin c iples of equity shall guide the chief at all times. The Chief has 21 days to make a determination. The appeal partly succeeds but each party will pay their own costs. I so order . Pronounced in open Court at Blantyre in the Republic on 27th March, 2019 . DingisVv·ayo Madise Judge 7