Autocraft Limited v City of Blantyre (Civil Cause 1072 of 1992) [1993] MWHC 41 (25 May 1993)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1072 OF 1992 BETWEEN: ADTOCRAPY UFMITED . 62 se eet ee eae oh ede os 8 ww Ge oe oe PRINS - and - Clr Or eA OR Brae gs! date taht eect ial ae ode Gin Gees DEFENDANT CORAM: MTEGHA J. ~~ Msiska, of Counsel. for the Plaintiff Nyizenda, of Counsel, for the Defendant Kaundama, Official Interpreter ULING In this Originating Summons the plaintiff is praying fox the following reliefs, namely: "(a) A DECLARATION that the Plaintiff is legally entitled te carry on its business on Plot Number ESE, Limbe, City of Blantyre, until such time that it hes formally been allocatecd another plot to move its »Susiness to namely plot Number M1 Mapanga also within the City of. Blantyre by the Devartment of Lancs. : 7 (b) THAT the Plaintiff be given extension of time to move its business to the said plot Mi Mapanga without closure of its business presently being run Plot ESE, Churchill Road, Limbe, within the City cf Blantyre in the interim. {c) THAT the said extension cf time also be given in order for the Plaintiff te exhaust its rights of appeal vorocecures uncer the Town anc Country Planning Act against the notice to close cown anc seai its business on the said plot ESE Limbe." the application is opposed by the defendant. By its affidavit deposed to by Mr T C Nyirenca, Counsel for the Gefencant, it has been Cepvosed that: the Créder for declaration cannot be hac because the plaintiff has no legal right to flout the law by carrying on business in an area not zoned for that business: -_ @ Sonat (2) The plaintiff has not lodged any appeal under the Town anc Country Planning Act: (cj the plaintiff .does not dispute that it is in breach of statute: and (cd) The plaintiff has no right te assert against the defendant since Plot Ef&E, Limbe does not belong to the plaintiff and, therefore, the plaintiff nas no interest in the plot. “ne o¢ief facts which have led to this application appear to be these: the plaintiff in this case, Autocraft. is a company engaged in psanel~beating and car-breaking business. - Over the years, it carried on business on premises belonging to Majestic Cinema. inese premises were in Limbe, situated along Grevilia Avenue. these premises were being rented from the proprietors of Majestic Cinema. Subsequently, these oremises were sold to a third party and it became or the plaintiff to vacate the »vremises. Alternative premises were, therefore, required. As luck had it, the plaintiff's Managing Director, Mr Hamic. Alimahomec, had another plot. THUS plot, No, E&®E, as also situated in Limbe, along Churchill Road. The plaintiff then moved its business to this plot. However. this latter plot is in what is zoneGé as a residential area, and not a commercial area. This business could, therefore, not lawfully be carried on on that plot. tt would appear that as soon as the plaintiff was made aware that it would be recuired to vacate the plot alona Grevilia Avenue, the Managing Director submitted plans to Duilc and move the plaintiff's business. in fact, he built the premises, it woulé appear, without the defendant's authority. Discussions then ensued between the claintiff ana the cefendant. However, -on 29th August 1999, the GCefendant wrote to the Trustees of Hajra Property Develcooment Limited in these terms: "29th August, 1990 Your above application was submitted to the plannince Committee on 23rd August, 1990 and was approved sunject to the followinc conditions:- LG Only good seconchané vehicles be Cisplayed and not scraps. This should be a temporary use waiting for cevelopment of the plot. bh You may wish to submit plans for the proposed velopment for the Committee's decision. Yours faithfully FOR: TOWN CLERK/CHIEF EXECUTIVE" At this stage, it is not easy to tell how this letter came into this matter. in the first place, the matter is relating to Plot ESE and not Plot E8E. Secondly, it appears the property belongs to a different entity altogether. = Anyway, as i have pointec out earlier, discussions ensueG between the parties and at the end of the day, the defendant wrote a letter to Mr Alimahomed on 6th Fedruary 1992s This letter stated: LOSURE OF BUSINESS AND STOP NOTICE ON PLOT SE — CHURCHILL ROAD, LIMBE hy 3 To RE So co] a With reference to the above subject, and further to my istter of the 3lst ultimo, please be informed that the Regional Administrator (S), OPC, has written to us on the above issue and in accoréance therewith I set out hereinbelow conditions which you must comply with before opening your premises. ih) The premises be opened from the 10th February, i992 for a period of 6 months, ie to 10th August, 1°92 during which you will be lookine for elternative premises to build on and move into at the expiry of the period hereby given: MN) ew The warehouse, worksnop, offices and fence recently constructed without the Town Planning approval are demolished on or soon after the 10th August, 1992. cad ww set the operations should be limited to breaking of venicies, storage OF spares and matters ancillary thereto. No sales shall be allowed on the premises. wP eet During the period referred tc in (1) Becctobea the premises tO be maintained in resentabie condition which should not dicteade from the general aesthetics of the surrounding areas. (5} That Mr Hamid shall henceforth recognise the existence of the Town ana Country Planning Committee and shall abide Sy its requirements as laicG down in the Town anc Ceuntry Planning Act cf the Laws of Malawi - (S$) That should Mr Hamid feel aggrieved by these conditions, he sHoula follow the »orocecdure as laid Gown by the Town and Country Planning Act of the Laws Of Malawi which »rocecure was alreacy mace known te him. As a signification of oe agreement tc the terms set out hereinanpove, please gon the counterpert. hereof anc senc same to me peer 5.00 p m on Friday, the 7th instant in order to enable you open your premises on Menday, the 10th instant. Please note that no extension cf the period grantec herein will be permissible. Should you fail for any reason whatsoever to procure a place to which you are xequired to move by the 10th August. 1992 ne further inculgence shall be granted to you. Further, any breach of the above conditions sha 7 be a subject of legal proceedings in Court for breach of agreement whereupon you will be required to reme ay the oreach by immediate ceasure ef all operations. Yours faithfully D. R. D. Alufaendika TOWN CLERK AND CHIEF EXECUTIVE" The plaintiff did not vacate the premises by 10th August 1992. Another letter was written by the cefencant on 24th August 1992. It stated: RE: CLOSURE OF BUSINESS AND Si No. EGE ¢ SHORCHILE ROAD LIM NOTICE ON PLOT ence to the agreement between yourself anc the Town Clerk and Chief Executive of the City of Blantyre, of 6 February 1992, which you signec on 12 Februery 1992, you agreed to vacate the axsove namec oremises by 10 August 1992. hs % tage OS With rerer As this letter _ being issuec on 25 August. we insist you vacate the remises before 26 August, es your property will be seated on 28 August." The plaintiff has not vacated the premises. return to this popint later. However, Guring Mr sae aniepee was looking for another plot. Plot was ae: ated to him by the Controller of Lands tion, ou, as can be seen from the letter ; & plet to him, there were some things which had to be done vSefore he could be allowed to build, let alone, move the business. One letter cated 3rd April 1993 stated: ear Sir APPLICATION FOR LEASE OF LAND AT MAPANGA FOR INDUSTRIAL PURPOSES | Purther to the letter of Sth September 1991 from che Regio mal Controller of Lands anc Valuation (South) I have pleasure in informing you that Mapanga area is being rezonec for industrial purposes. That being the case it is hereby confirmed that you have been allocated initially 3 hectares for your car breaking and anciil ary business. As soon as the Cetailec layout of the area is completed you will be ag€visec to commence Gevelopment fter your building plans have been approvecG by the pera Planning Committee. In this respect it would be in your interest to have such volans reacy soon fter the cetailec layout is completec et Yours faithfully B. S. Chawani ACTING CONTROLLER OF LANDS AND VALUATION" This letter was immediately followec by another letter from the Regional Physical Planning Officer. It statedc: "Autocraft P. O. Box, 5916 Limbse. Dear Sir, REZONING OF PART OF PLOT NO. MPL DENSITY RESIDENTIAL TO INDUSTRIA FROM LOW/MEDIUM L USE = os efe St uw Your letter Gatec Sth March, I would like to a€vise that the application for rezoning of part of plot No. MPL from Low/medium density residential to hight industrial use received ministerial approval late last year. i ray) { Following ministerial approval. this office prepared a Getailec layout plan for the area which was tabled for Town Planning Committes's consideration on 20th October, 1992. The committee was of the epinion that some of the plots were too large anc aovisec, therefore, that the plan be revised. I am pleased tc inform you that revisions have been finalised and the plan will be tadlec again at the next Town Planning Committee nee which is scheduled for 22nd April, 1993. After Town Planning Committee's approval, a copy of the glen will be sent to the Regional Contrellier of Lancs anc Valuation anc it is his office which will allocate pilots to individual developers Lastly, I would like you to note that, among¢ other things, ministerial approval acknowlecges the fact that topographically, the .aree in gcuestica is not quite suitable for incustrial develooment. This is way at was initially zonea for resice caevelopment Nevertheless, the ministerial stipulatec that only high quality Cevelopment will de semitted in this area. This is due to the fact that the site is along a major anc very busy roac. Yours faithfully Longwe EGIONAL PHYSICAL PLANNING OFFICER." it is, therefore, clear that es of now. ne specific known as to when this plot is available. 9] c D el n It would appear that when the plaintiff realisec that the business will be sealed and that it will be forcec to vacete Pict ESE, an injunction was obtained from the Court restraining the defendant from coing so. Efforts by the defendant to vacate the injunction were not successful. As of now, the injunction still stancs That comes out clearly from these facts is this: Aetoer ats Limited is cearly @ separate entity. it is not the owner of Plot EGE in Limbe. That plot belengs to a Mr Hamid Alimahomeé. It is not quite clear whether that plot, Ee Mapanga also belongs to Hamid Alimahomed, or to the olaintitt “It is also cuite clear that Plot H&z. Limce was developed without City Council authority. The olaintifft has procuced Exh. PAMZ to show that it had pal i6é K755.00 as plan 4 fee. But this exhibit, per se, Coes not mean that i relates to Plot ESE. In fact. it may very well relate to Plot &9E, belonging to Hajra Property Development Limited, according to the heading. Finally, what is also clear is that Hamic Alimanomed is Managing Director of the 2 Let plaintiff's business. It will be noted that when the plaintiff was served with a notice to close down and seal its business at Plot ESE, Limbe. it lodged an appeal against the notice under the Town and Country Planning Act. I will now turn to the prayers. The first prayer in the Originating Summons is a declaration that the plaintiff is legally entitled to carry on its business at Plot E8E, Limbe until such time that it has been allocated Plot Ml, Mapanga to move its business to. The power to make a declaration by the Court is a Giscretionary one. It must be exercised with great care anc judiciously, regard being had to the circumstances of the case. The Court will not make a Geclaration when the relief claimed is unlawful. It has been argued by Mr Msiska that the plaintiff was allowed to build on Plot E®8E in orcer to move the business there. Indeed, Mr Alimahomea was allowed by the Gefendant in its letter of 6th February 1992. It can be argued that this permission was not given to the olaintiff, but to Mr Alimahomec. If this was the position, then the plaintiff has no locus standi. The plaintiff has no interest in the plot. The dispute is between the defendant and Mr Alimahomedcd. It is also guite clear that by carrying on business on the plot, if the plaintiff has a locus standi, the plaintiff was Going so illegally. The permission which was grantec by the defendant on 6th February 1992 was for a perioc of six months only, and there were conditions attached to the permission. But the plaintiff has not complied with them. A declaratory judgment or order is an equitable remedy and he who seeks it must come with clean hands. I cannot, therefore, grant this relief where there is such clear illegality. I will now turn to the second prayer, that the olaintiff be given time to move its business to Plot Hl, Mapanga. It will be seen from the facts which I have outlined that the plot is still under review by the authorities. It is not known when the problems which have arisen will be sorted out. In these premises, it woulc not be possible for the Court to give a realistic time extension. The extension clearly depends on when the plot is going to be ready. This prayer must, therefore, fail. Finally, the Court is being asked to extend the time in order for the plaintiff to exhaust its rights of appeal procedure under the Town Planning Act against notice to close down and seal its business on Plot E8E. It will be noticed, from the facts of the case that notice of closure of business and stop notice was given on 6th February 1992. ds is ne notice of appeal to that notice. Therefore, ther is no appeal, as Mr Nyirenca rightly sointed out. The only notice of appe al appearing on the file was that datead ilth November 1991. This notice, hewever, relates to Hajra Preperty Development Limitea and net to tne plaintiff. At that time. Plot Ml, Mapanga was not yet allocated to the plaintiff. According to section 67{2) of the Town ane Country Planning Act: . person wisnes to appeal against any notice or ion referred to in subsection (1) he shall svu>dmit A £ appeal within thirty ys of the receip ° the netice or Gecision to »be appealed against, to as f 4 da one plaintiff's cights have, therefore, neen This Summons is, therefore, Gismissec, with costs. This means therefore, that the Notice ‘served on tne plaintiff by the defendant stands. MADE in Chambers this 25th cay of May L993, @t