Banda v Blantyre Baptist Holdings Limited (Land Cause 121 of 2016) [2022] MWHC 245 (30 November 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION LAND CAUSE NO. 121 OF 2016 (Before Honourable Justice Mambulasa) BETWEEN: JOHN SUZI-BANDA..............c.ccesccsccssscccsseceeccesescssenseesenees CLAIMANT -AND- BLANTYRE BAPTIST HOLDINGS LIMITED.................... DEFENDANT CORAM: HON. JUSTICE MANDALA MAMBULASA Mr. Shepher Chihana Mumba, Advocate for the Claimant Mr. Leton Mauya Msuku, Advocate for the Defendant Mr. Obet Chitatu, Court Clerk/Official Interpreter Ms. Zelia Mthunzi, Court Reporter JUDGMENT MAMBULASA, J [1] [2] [3] [4] [5] Introduction The Claimant is the registered titleholder of freehold property known as Title Number Nancholi 505. Its Plot Number is NC 233. The property is situated at Nancholi in the City of Blantyre. The Defendant is the registered titleholder of a nearby freehold piece of land known as Title Number Nancholi 348. Its Plot Number is BW 572. The Defendant’s predecessor-in-title, constructed some developments on it now used by the Defendant as a private school. The parties’ pieces of land are, as per the Department of Land’s Plan, separated by a public road or road reserve of 12 metres which is supposed to be used by the Claimant, among others, as access road to his said property. Unbeknownst to the Claimant, the Defendant’s predecessor-in-title wrongfully constructed developments on the said public road or road reserve separating the two properties thereby blocking the Claimant’s access road. The said construction developments further encroached onto a substantial part of the Claimant’s property. Despite numerous requests and entreaties on the part of the Claimant to the Defendant, the Defendant continues to wrongfully block the said access road and to illegally encroach on the Claimant’s piece of property. [6] [7] [8] [9] Due to the Defendant’s illegal actions, members of the public now use part of the Claimant’s property as public road, thus, reducing the useful size of the Claimant’s property. As a result of the Defendant’s encroachment, the Claimant is unable to develop his property despite having approved plans for the same. The Claimant now claims an order of injunction restraining the Defendant by itself, its servants or agents or otherwise howsoever from remaining or continuing in occupation of the said public road or road reserve and on the Claimant’s property. He also claims a mandatory order of injunction requiring the Defendant whether by itself, servants or agents or otherwise howsoever, to demolish all developments on the said public access road or road reserve and the Claimant’s property and make the same fit and usable as passable road and bare land for the Claimant’s further development respectively. The Claimant further claims damages for trespass, loss of use and aggravated damages and costs of the action. The Defendant filed an amended Defence in which it denied every allegation of fact contained in the Claimant’s Statement of Case and puts him to strict proof of the same. It also pleaded in the alternative, that if at all the Defendant’s predecessor-in-title encroached on the Claimant’s land, that which 1s denied, then the Claimant’s claim is statute barred, the encroachment having outlived the legal limitation period. [10] Inthe further alternative, the Defendant averred that the Claimant did not have [11] standing to bring an action over encroachment of public land. The Defendant finally prayed that the Claimant’s claim be dismissed with costs. Issues for Determination There are six issues for determination in this matter. These are: 11.1 11.2 11.3 11.4 11.5 11.6 11.7 whether or not the Defendant’s predecessor-in-title wrongfully constructed developments on public road or road reserve which is supposed to be used by the Claimant, thus blocking his access road? whether or not the said construction developments further encroached onto a substantial part of the Claimant’s property? whether or not the Defendant continues to wrongfully block the Claimant’s access road and to encroach on the Claimant’s property? whether or not the Claimant is entitled to the claims and reliefs contained in the Statement of Case? whether or not the Claimant’s claim is statute barred? whether or not the Claimant can enforce encroachment against public land? which party is entitled to costs of the action? The Law [12] Its trite learning that in civil matters, it 1s the claimant who bears the burden of proof. In Commercial Bank of Malawi —vs- Mhango' the Supreme Court of Appeal for Malawi observed as follows: Ordinarily, the law is that the burden of proof lies on a party who substantially asserts the affirmative of the issue. The principle was stated in the case of Robins v National Trust Co [1927] AC 515 that the burden of proof in any particular case depends on the circumstances in which the claim arises. In general, the rule is, e7 qui affirmat non qui negat incumbit probatio which means the burden of proof lies on him who alleges, and not him who denies. Lord Megham, again, in Constantine Line v Imperial Smelting Corporation [1943] AC 154, 174 stated that itis an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. The judge said that the rule is adopted principally because it is but just that he who invokes the aid of the law should be the first to prove his case because in the nature of things, a negative is more difficult to establish than an affirmative. However, in a civil action the burden of proof may be varied by the agreement of the parties - see Bond Air Services Ltd v Hill [1955] 2 QB 417. [13] It is also commonplace that the standard of proof in civil matters 1s on a balance of probabilities. In Miller —vs- Minister of Pensions? Denning J said: That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can ! [2002-2003] MLR 43 (SCA). 211947] 2 All E. R. 372. say: “We think it more probable than not,” the burden is discharged but, if the probabilities are equal, it is not. [14] Itis settled law that every person has the night to acquire property alone or in association with others and no person shall be arbitrarily deprived of property. [15] Section 46 of the Republican Constitution provides as follows: (2) | Any person who claims that a right or freedom guaranteed by this Constitution has been infringed or threatened shall be entitled- (a) to make application to a competent court to enforce or protect such a right or freedom; and (3) Where a court referred to in subsection (2) (a) finds that rights or freedoms conferred by this Constitution have been unlawfully denied or violated, it shall have the power to make any orders that are necessary and appropriate to secure the enjoyment of those rights and freedoms and where a court finds that a threat exists to such rights or freedoms, it shall have the power to make any orders necessary and appropriate to prevent those rights and freedoms from being unlawfully denied or violated. (4) A court referred to in subsection (2) (a) shall have the power to award compensation to any person whose rights or freedoms have been unlawfully 3 Section 28 of the Republican Constitution. denied or violated where it considers it to be appropriate in the circumstances of a particular case. [16] Section 134 (1) of the Registered Land Act* provides as follows: The ownership of land may be acquired by peaceable, open and uninterrupted possession without the permission of any person lawfully entitled to such possession for a period of twelve years: Provided that no person shall so acquire the ownership of customary or public land. [17] In Hetherwick Mbale -vs- Hissan Maganga? the Supreme Court of Appeal for Malawi affirmed the above position of the law when it said in paragraph 63 of its judgment that: This right to acquire by adverse possession and to be so registered does not apply to customary land or public land. [18] Further, section 135 of the Registered Land Act provides that: (1) Where it is shown that a person has been in possession of land, or in receipt of the rents or profits thereof, at a certain date and is still in possession or receipt thereof, it shall be presumed that he has, from that date, been in uninterrupted possession of the land or in uninterrupted receipt of the rents or profits until the contrary be shown. * Cap. 58:01 of the Laws of Malawi. > MSCA Miscellaneous Civil Appeal Cause No. 21 of 2013 (Unreported). (6) Possession shall be interrupted- (a) by dispossession by a person claiming the land in opposition to the person in possession; (b) by the institution of legal proceedings by the proprietor of the land to assert his right thereto; or (c) by any acknowledgement made by the person in possession of the land to any person claiming to be the proprietor thereof that such claim is admitted. [19] Section 6 of the Limitation Act® provides as follows: No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. [20] Another relevant provision is section 7 (1) of the Limitation Act which states that: Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of dispossession or discontinuance. [21] The law is settled that in general, the operation of limitation statutes does not extinguish the cause of action but merely bars the remedy of bringing the ° Cap. 6:02 of the Laws of Malawi. action after the lapse of the specified time from the date when the cause of action arose.’ [22] Itis also important that “the person claiming ownership by adverse possession must have entered or remained on the land, for not less than the period of limitation, without the permission of the person with the paper title’ Per Mbvundula J, as he then was, in Shire Highlands Rifle Club -vs- Makandi Tea and Coffee Estates Limited. [23] Section 54 (1) of the Physical Planning Act, 2016? is couched in the following terms: A person shall not commence the development of any subdivision of any land or display any advertisement on any land or building to which this Part applies unless he has first obtained a grant of development permission or except where the development, subdivision or display of advertisement is permitted development under this Act. [24] Before the said Physical Planning Act, 2016 became into force, the legal position was the same as is provided for in section 54 (1) quoted above. Section 44 (1) of the Town and Country Planning Act provided that: 1 Shire Highlands Rifle Club -vs- Makandi Tea and Coffee Estates Limited, Civil Cause No. 473 of 2010 (High Court of Malawi) (Principal Registry) (Unreported). See also Hetherwick Mbale - vs- Hissan Maganga, n5 above. 8 n7 above. ° Act No. 17 of 2016. [25] [26] [27] No person shall commence the development of any subdivision of any land or display any advertisement on any land or building to which this Part applies unless he has first obtained a grant of development permission or except where the development, subdivision or display of advertisement is permitted development under this Act. City Council of Blantyre, as the responsible authority, has the mandate to enforce any transgressions of this statute. Section 59 (1) of the Physical Planning Act, 2016 states as follows: Where a responsible authority is of the opinion that a person is carrying out unauthorized development, the responsible authority may serve a stop notice requiring that person to cease the activity or such portion of it as may be specified in the stop notice. City Council of Blantyre had the same authority under section 49 (1) of the Town and Country Planning Act. It is trite law that carrying out any development without due permission 1s an offence. Section 98 (h) of the Physical Planning Act, 2016 provides: Any person who, without lawful or reasonable excuse- (h) commences any development without a grant of development permission where such permission is required; commits an offence and upon conviction shall be liable- 10 (a) in the case of a natural person, to a fine of K500,000.00 and to imprisonment for a term of one year and in the case of a continuing offence, a further fine of two thousand Kwacha (K2,000.00) for each day during which the offence continues after conviction; and (b) in the case of a legal person, to a fine of K2,000,000.00 [28] This offence was also in the Town and Country Planning Act. Section 72 (1) (h) stated that: Any person who without lawful or reasonable excuse- (h) commences any development without a grant of development permission where such permission is required; shall be guilty of an offence and liable to a fine of K5,000 or to imprisonment for a term of twelve months together with, in the case of a continuing offence, a further fine of K100 for every day during which the offence continues after conviction. [29] Erecting or altering any structure on land in a road reserve without the consent in writing of the highway authority 1s illegal and is contrary to section 10 (6) (a) of the Public Roads Act.!° [30] In terms of the same offence, section 53 of the Public Roads Act further provides as follows: 0 Cap. 69:02 of the Laws of Malawi. 11 Any person guilty of an offence against this Act or any regulation or rule made thereunder for which no special penalty is provided by this Act or by any regulation or rule made thereunder shall be liable to a fine of K50,000 and to imprisonment for three months. [31] Itis similarly an offence under the Land Act"! to use or occupy public land without the required permission. Section 20 states as follows: A person who uses or occupies any public land and is not entitled to such use or occupation by virtue of a valid grant, lease or other disposition made by the Minister under any law for the time being in force at the date of such grant, lease or disposition, commits an offence and upon conviction shall be liable to a fine of K500,000 and to imprisonment for three years, and, in the case of a continuing offence, to a further fine of K5,000 in respect of every day during which the offence continues. [32] Courts do not assist anyone whose cause of action is founded upon an illegal act. In Viola Miller & Paul Miller -vs- Marilyn Stewart’? the Supreme Court of Judicature of Jamaica observed as follows: The legal maxim of ex turpi causa non oritur action summarizes the doctrine. It comes to this. No court ought to be called upon to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the attention of the court, and if the person invoking the aid of the court is himself "| Cap. 57:01 of the Laws of Malawi. 12 12013] JMSC Civ. 138. 12 implicated in the illegality. If the evidence adduced by the Plaintiff proves the illegality the court ought not to assist him. [33] In R (On the application of Smith) -vs- Land Registry (Peterborough Office)! a man kept his caravan and associated structures on public highway land alongside the roadway. After 12 years he applied for first registration of title. The county council opposed the application on the basis that the land formed part of a highway and was recorded on the definitive map as highway open to all traffic. The Land Registrar rejected the application (although admitting some doubts as to whether or not it was possible to acquire title-albeit one which would be subject to the rights of way). The caravan owner applied for judicial review. It was held that no title could be acquired. Obstructing a highway was a criminal offence and criminality could not be relied upon to found a civil case. The further ground for rejection of the claim was that adverse possession cannot be acquired over the land which is the subject of a public right of way. [34] The law is settled that nuisance done on a public highway does not, per se, grant any and every person the right to sue. However, a person who is particularly injured by the act 1s entitled at common law to sue. This ancient old principle is cited in the old Coke’s report as follows: A man shall not have an action on the case for a nuisance done in the highway, for it is acommon nuisance, and then it is not reasonable that a particular person should have the action; for by the same reason that one person might have an action for it, 13 12009] EWHC 328. 13 by the same reason every one might have an action, and then he [1. e. the defendant] would be punished 100 times for one and the same cause. But if any particular person afterwards by the nuisance done has more particular damage than any other, there for that particular injury, he shall have a particular action on the case; and for common nuisances, which are equal to all the King’s liege people, the common law has appointed other courts for the correction and reforming.'4 [35] The particularity of a person’s or a class of persons’ damage gives them a right to bring an action. It is said that: While the wrong be special, as contradistinguished from a grievance common to the whole public, who have the right to use the highway, it may nevertheless be the common misfortune of a number or even a class of persons and give to each a right of redress. The amounts of damage recoverable by them may vary according to the extent of the loss shown in each case, but every one of them may maintain his status in court by alleging and proving precisely the same sort of wrong caused by the same obstruction. !> [36] Sir Frederick Pollock in Torts'® writes as follows: A private action can be maintained in respect of a public nuisance by a person who suffers thereby some particular loss or damage beyond what is suffered by him in common with all other persons affected by the nuisance. '4 Dicta in William’s Case (1592) 5C. 'S Per Avery J, in Farmers Co-operative Manufacturing Company -vs- Albemarie & Raleigh Railroad Company (1985) 117 N. C. 579, 586-587. 16 6 Edition, 387. 14 [37] Section 30 of the Courts Act!’ provides that costs are in the discretion of the High Court. It states as follows: Subject to this Act, the costs of, and incidental to, all proceedings in the High Court, including the administration of estates and trusts, shall be in the discretion of the High Court; and the discretion shall be exercised in accordance with the practice and procedure provided in the rules of procedure made by the Chief Justice under section 67 of this Acct. [38] Order 31, rule 3 (1) of the Courts (High Court) (Civil Procedure) Rules, 2017 is couched in the following terms: The Court has discretion as to- (a) whether costs are payable by one party to another; (b) the amount of these costs; and (c) when they are to be paid. [39] When the Court decides to make an order on costs, then, the general rule is that the unsuccessful party shall be ordered to pay the costs of the successful party. This is clear from Order 31, rule 3 (2) of the Courts (High Court) (Civil Procedure) Rules, 2017. [40] There are exceptions to the general rule, where a successful party shall not always be entitled to have an order for costs against the unsuccessful party. For instance, where a successful party recovers no more than nominal damages, it may be ordered to pay the unsuccessful party’s costs.'® The '7 Cap. 3:02 of the Laws of Malawi. '8 Texaco Ltd —vs- Arco Technology Inc (1989) The Times, 13 October 1989. 15 [41] [42] [43] [44] [45] successful party may also not be entitled to costs where the issue on which a party succeeded is raised for the first time by amendment at a very late stage.'” The Claimant’s Evidence in Chief The first witness for the Claimant, was the Claimant himself. He is of full age and is a lawyer by profession. He told the Court that he stays at New Naperi in the city of Blantyre. The Claimant testified that he owns property, Tithe Number Nancholi 505 which is on Plot Number NC 233 which he bought on 31* October, 2014 from Mr. Chadwick Lawrence Mphande. He exhibited a copy of the Sale Agreement for the transaction and was marked as, “JSB1”. The sale was duly approved by the Malawi Government and a Land Certificate was issued to him. He exhibited copies of the Deed of Conveyance and the Land Certificate and both were marked as, “JSB2”. The Claimant told the Court that the Defendant owns property, Title Number Nancholi 348 which is on Plot Number BW 572. He said that his property is near the Defendant’s property and that they are separated by a public road or road reserve. He exhibited copies of the sketch map of the two properties and these were marked as, “JSB3”. '? Beoco Ltd —vs- Alfa Laval Co Ltd & Anor [1995] Q. B. 137. 16 [46] [47] [48] [49] [50] [51] The Claimant testified that he intended to develop it and to that end, architectural designs were approved by the City Council of Blantyre. Copies of the approved architectural designs were exhibited and marked as, “JSB4”. In January 2016, the Claimant contracted Bua Construction Company Limited to construct a house for him as per the approved plans. However, when the said Company went on site, they noted that some of the developments by the Defendant were extended beyond the public road or road reserve onto his property. The Company immediately halted the construction works. The Claimant then engaged a private land surveyor, Mr. Gerald Namaona, to survey the property and advise him what exactly happened. Mr. Namaona surveyed the area and produced a report on the encroachment which was exhibited and marked as, “JSB5”’. The report shows that the Defendant’s developments encroached the access road or road reserve onto part of his property. As such, members of the public have been forced to use part of his plot as access road and he has also been blocked from using the designated road. The Claimant upon finding out about this, notified the Defendant through a letter which he wrote on 22™ February, 2016. The letter was exhibited and marked as, “JSB6”’. In that letter, the Claimant requested the Defendant to demolish the offending parts of their developments. The Defendant did not do so. It basically ignored the letter. After some time, the Claimant met the Defendant’s Pastor Vincent 17 [52] [53] [54] [55] Chirwa at his office near the Independence Arc in the city of Blantyre to discuss the matter and proposed that it be settled amicably by them simply demolishing the offending buildings. Pastor Chirwa promised to look into the issue and also referred the Claimant to their lawyer, Mr. Greshan Banda. The Claimant telephoned Mr. Banda and indicated to him his intention to meet over the issue. In a letter dated 20" April, 2016, Mr. Banda proposed that they engage other relevant stakeholders from the City Council of Blantyre and Departments of Lands and Surveys to ascertain the alleged encroachments. A copy of the letter was exhibited and marked as, “JSB7”. On 12" July, 2016 the Claimant wrote the Land Registrar referring to him the issue for his mediation and determination as was proposed by Mr. Banda in his letter to him. A copy of the letter was exhibited and marked as, “JSB8”. On 27" July, 2016 the Land Registrar, Mr. Killian Remmie Palika, wrote the Defendant with a copy to the Claimant inviting them to a meeting scheduled to take place on 4" August, 2016 to discuss the matter at his office located in the regional government building. A copy of the letter written by the Land Registrar was exhibited and marked as, “JSB9”’. The Claimant told the Court that the meeting took place at Mr. Palika’s office as arranged and the Defendant vehemently denied ever encroaching the said public road or road reserve and part of his property. 18 [56] [57] [58] [59] [60] The Land Registrar referred the matter to the Regional Surveyor General (S) for him to investigate the matter and report back to him. A copy of the Land Registrar’s letter was exhibited and marked as, “JSB10”. The Claimant told the Court that the Regional Surveyor General (S) investigated the matter, surveyed the land and found out that, indeed the Defendant had encroached the access road or road reserve and partly extended into the boundary line B19-PC21 of NC 233, his property, just as his private land surveyor, Mr. Namaona had found. A copy of the report was exhibited and marked as, “JSB11”’. Armed with that report, on 28" July, 2017 the Acting Regional Commissioner for Lands (South) informed City Council of Blantyre of the encroachment and instructed it to issue a demolition order against the illegal developments. A copy of the letter by the Acting Regional Commissioner for Lands (South) was exhibited and marked as, “JSB12”. The Claimant told the Court that City Council of Blantyre is yet to demolish the illegal developments and he has not been appraised of the reasons for its inaction. Despite being ready to construct his house, the Claimant told the Court that he cannot develop his property because of the encroachment. Further, some of the materials he bought and brought onsite such as bricks and quarry stones have been stolen. He claimed that the actions and or inactions of the Defendant are unreasonable, unfair and illegal. He states that he has tried several ways 19 [61] [62] [63] [64] of reasoning with the Defendant so that the matter herein could be resolved amicably and that all attempts failed miserably. The Claimant told the Court that even if he had decided to build his house on the space left after the Defendant’s encroachment, he would have ended up closing the temporary road that members of the public use which passes through his property, thus causing great inconvenience to them. He prays for the relief through an order from the Court requiring the Defendant to remove the buildings constructed along the said access road or road reserve and within his property and a permanent order of injunction stopping them from encroaching or trespassing upon the said public road or road reserve and his property. The Claimant further clams damages for trespass from the Defendant as they have encroached by constructing a brick wall fence on his land. He says that he has suffered great loss due to the Defendant’s activities and he therefore claims from them damages for loss of use of his land, aggravated damages and costs of the action. Cross Examination In cross-examination, the Claimant confirmed that he bought the land on 31“ October 2014 and that he had intended to commence construction in January 2016. He also confirmed to the Court that he had a chance to visit the land before making payment. The Claimant also confirmed to the Court that he engaged architects to do the plans and that the same were duly approved by the City Council of Blantyre. 20 [65] [66] [67] He further confirmed that at the time of the transaction between him and the seller, nobody knew about the encroachment. The Claimant told the Court that he did not know whether his predecessor-in-title knew about the encroachment by the Defendant and that he operated on the basis that the property was not encumbered. Asked to explain how the architect produced the drawings/architectural designs, the Claimant told the Court that he gave him the Deed Plan but also he visited the site, and thereafter came up with the drawings. Asked whether the architect knew about the encroachments, the Claimant said that the architect did not know about them. The Claimant went on to say that the discovery of the encroachments was first made by the construction company. It was because of that discovery that the Claimant then engaged the services of a private land surveyor to tell exactly the positions of the beacons and what happened. It is the private land surveyor who told him the exact positions of the beacons and also the extent of the encroachment by the Defendant. The Claimant told the Court that if he had known about the encroachments from the beginning, he would have dealt with them immediately. He agreed that the encroachments are premised on the private land surveyor’s opinion. The Claimant was asked if he knew when his predecessor acquired the land, to which he responded that he did not know. He said there could be a document somewhere from which one could tell when his predecessor acquired it. 21 [68] [69] [70] [71] [72] On the question whether an ordinary person would have known about the encroachments, the Claimant said yes and no. No, if the ordinary person did nothing to ascertain the positions of the beacons. Yes, if the ordinary person did something to ascertain the positions of the beacons to know exactly what happened, he would know, as he did in this case. Re Examination There was no re-examination of the Claimant. Claimant’s Evidence in Chief of Witness No. 2, Gerald M. Namaona The Claimant’s second witness was Mr. Gerald Mathew Namaona. He told the Court that he is a professional land surveyor. In terms of academic qualifications, he said he holds a Bachelor of Science degree in land surveying from North East London Polytechnic, now University of North East London. Mr. Namaona further told the Court that he has extensive experience in land surveying. He lectured at the then, Polytechnic, a constituent college of the University of Malawi where he introduced land surveying, land economy and physical planning courses. He is a former member of the Land Surveyors Registration Board and firm chairperson of the Land Surveyors Chapter under SIM. His land employment position was Senior Land Surveyor. 22 [73] Mr. Namaona has since then managed his own land surveying practice. Under the umbrella of that practice, he has conducted many large-scale assignments including the following: 1. Topographical surveys for school sites in all districts; ll. Topographical and cadastral surveys for Mzuzu City Assembly under a World Bank funded project; i. Cadastral and topographical surveys for Malawi Housing Corporation in all districts; iv. Cadastral surveys for Blantyre City Assembly in all locations; and V. Engineering and cadastral surveys for PressCane Limited. [74] In short, Mr. Namaona told the Court that he is very familiar with land survey. [75] He said that sometime around November, 2016 he was asked by the Claimant to survey a possible encroachment on his property being Plot No. NC 233. He said he went on site to survey it himself. [76] The results of the survey were very clear. They showed that the developments on the Defendant’s property, Plot No. BW 572 indeed encroached part of the access road separating its property and the Claimant’s property and further encroached the latter’s property. [77] As a result, members of the public are using part of the Claimant’s plot as access road. He tendered in evidence a copy of his report which was marked as, “GMNI1”. 23 [78] [79] [80] [81] [82] [83] He said that there is no doubt in his mind, upon fair and professional assessment that the owners of property, Plot No. BW 572 encroached on property, Plot No. NC 233. Cross Examination In cross-examination, the witness told the Court that the Claimant explained his report to the Court during the /ocus in quo and also confirmed that the Claimant was able to show the Court where the access road should have been. Mr. Namaona confirmed to the Court that he is the one who prepared the document that is showing the extent of the encroachment. He went on to say that it is possible for a lay person to read the document and explain it to another person. The witness said, one does not need to be a surveyor to understand the document and explain it to another. He confirmed that however, what gives it weight is his expertise. The witness further confirmed to the Court that nobody discovered the extent of the encroachment until the time that he was engaged by the Claimant. On his testimony that he holds a Bachelor of Science degree in land surveying from North East London Polytechnic, now University of North East London, he accepted that he had not produced or shown the Court the said degree that day. On his assertion that he lectured at the Polytechnic, a constituent college of the University of Malawi where he introduced land surveying, land economy 24 [84] [85] [86] [87] and physical planning courses, he also accepted that he had not produced any evidence to prove the assertion. He also accepted that he had not brought any evidence or licence to prove that he is a former member of the Land Surveyors Registration Board and firm chairman of the Land Surveyors Chapter under SIM. Mr. Namaona also agreed that in his testimony, he had not mentioned the exact name of his land surveying practice. When put to him that he had failed to produce his degree, licence and the name of his practice, Mr. Namaona said that he had evidence for all these three things and that he could arrange to bring them to Court if they were needed. On whether there was a report explaining the process that he followed, he said, there was none. However, he said, there was a sketch plan and that he started from a known national control so that there is no encroachment. The witness explained that his explanation or opinion was the paper that was in front of the learned advocate. Finally, Mr. Namaona confirmed to the Court that no one had discovered the extent of the encroachments before he did the survey. On the question whether his claim that there were encroachments could stand in the absence of his credibility, the witness simply said he had told the Court his credentials. Re-Examination 25 [88] [89] [90] [91] [92] In re-examination, Mr. Namaona told the Court that it is correct that he holds a Bachelor of Science degree in land surveying from North East London Polytechnic, now, University of North East London and that there was no any evidence proffered controverting that position. Similarly, Mr. Namaona testified that no evidence had been brought that tended to suggest that he did not have extensive experience in land surveying, or that he did not lecture at the Polytechnic, a constituent college of the University of Malawi where he introduced land surveying, land economy and physical planning courses. On exhibit, “GMN1” the witness told the Court that it does not explain the process that was followed in coming up with it because it is the final product. He explained that he took the survey equipment and went to some national control and did some computation which was then translated into the sketch map. He said the exhibit was a cartographic work. On licence, he said that he is a licenced land surveyor. He did examinations which he passed. He then did practicals which he also did very well. The licence also requires the signature of a legal practitioner and in his case, his was signed by Mr. James George Naphambo. The licence was at his home within the city of Blantyre. Mr. Namaona was referred to pages 39 and 40 of the Trial Bundle. Page 39 contains a letter, Ref. No. RGS/S/Vol.1/55 dated 12" July, 2017 from the Regional Surveyor General (S) to the Regional Commissioner for Lands (S). Its subject matter is: Report on Verification of Position of Access Road. In 26 [93] [94] summary, the letter states that the fieldwork results are showing that the brick wall fence for Plot No. BW 572 (wrongly spelt as BW 501) is indeed blocking the access road and partly extends into the boundary line B19-PC21 of Plot No. NC 233. It further states that as alternative, people are now passing through the northern part of Plot No. NC 233. The author, O. N. Mbalame, Regional Surveyor General (S) states that he has attached map showing the existing scenario on ground. Page 40 contains the map. The witness confirmed that the map was prepared by Mr. O. N. Mbalame and that it depicts some encroachment along B19 and PC21. Mr. Namaona told the Court that he also agreed with the finding. This marked the end of the Claimant’s case. The Defendant’s Evidence in Chief The first Defendant’s witness was Pastor Vincent Chirwa. He told the Court that he pastors Blantyre Baptist Church and that Blantyre Baptist Church is the proprietor of the Defendant company. Pastor Chirwa said that he is also responsible for the management of the Blantyre Baptist Academy, an institution owned by the Defendant company whose premises are alleged to have encroached onto the Claimant’s land. Pastor Chirwa told the Court that the Defendant acquired Blantyre Baptist Academy premises from the then, Malawi Savings Bank Limited in the year 2009 that sold the premises in exercise of its power of sale following failure by the former owners of the premises, Elma High School to service a loan they had obtained from the said bank. He exhibited a copy of the Sale Agreement between Malawi Savings Bank Limited and the Defendant to that effect marked as, “VC1”. 27 [95] [96] [97] [98] [99] The Defendant acquired the said premises on an open market following a number of public advertisements by the agents engaged by Malawi Savings Bank Ltd. Pastor Chirwa exhibited a copy of one such adverts that led to the subsequent sale marked as, “VC2”. Pastor Chirwa told the Court that since the acquisition of the said premises, the Defendant has not extended the boundaries of the premises. He told the Court that the Defendant does not even have the original plans for the premises such that when the need to produce them arose, they had to write the Planning Committee of the City Council of Blantyre who advised them that due to passage of time, the plans were archived and it was almost impossible to trace or locate them. There 1s a copy of the communication to that effect between M/s Blantyre Baptist Church and City Council of Blantyre that has been exhibited and marked as, “VC3”’. Cross-Examination In cross-examination Pastor Chirwa told the Court that he was present when the Defendant company purchased the property in question and that he also had occasion to go and view it. However, he told the Court that he did not have occasion to go to Lands Registry and ascertain the exact position of the beacons. He confirmed that he did not know where the beacons of the property were. Pastor Chirwa told the Court that prior to the transaction, he did not engage anybody to trace the beacons of the property. 28 [100] Pastor Chirwa testified that he was not aware that there were encroachments. He confirmed to the Court that the Claimant indeed brought to his attention the alleged encroachments. Following the allegation, the Defendant engaged the services of a land surveyor to verify the alleged encroachments. The name of the land surveyor was a certain Mr. Precious Kondowe. He told the Court that there was no reference about Mr. Kondowe’s report/findings in his testimony because Mr. Kondowe never completed the survey and no other land surveyor was engaged thereafter. [101] When asked about the title number for the Defendant’s property, Pastor Chirwa could not remember it off the cuff. [102] Pastor Chirwa was then taken to page 56 of the Trial Bundle which contained the sketch map which had been prepared by Mr. Gerald M. Namaona for the Claimant. He was able to locate the brick wall fence for Plot No. BW 572. Asked whether the map does not show a shaded part that had been encroached, he told the Court that he would not know if it represents the correct position. [103] Pastor Chirwa told the Court that there was a proposed 12m road according to the map. He was able to see PC21 which 1s part of the brick wall fence for the school which he said was inside the brick wall fence. He confirmed that the brick wall fence had taken part of B19 and PC21. Pastor Chirwa agreed that there is an encroachment according to the map. [104] The witness did not produce any contrary document to the map showing the existing scenario on the ground which was produced by the Regional Surveyor General (S), Mr. O. N. Mbalame. He also did not have drawings/approved 29 plans for that part of the school and so would not know whether that part was built outside the approved plans. Pastor Chirwa stated that the property was already constructed at the time it was bought. [105] Pastor Chirwa confirmed to the Court that he was with the Defendant at the time of the acquisition of the property and that they were never given approved plans by Malawi Savings Bank Limited or anybody. He explained to the Court that he knew when the developments on the property were done and that it was before the year 2005 even though he did not know the exact date when the section of the property in issue was built. [106] The witness told the Court that Mr. Kondowe was given instructions to survey the property, however, he did not complete the assignment as it was close to the Court hearing date. Pastor Chirwa told the Court that they did not have a complete survey of the area/section in issue since 2016 for the Defendant to appreciate the nature of the Claimant’s claim. [107] He told the Court that he was quite a senior person in the Defendant’s company at the time of the acquisition of the property. All he knew was that the Defendant was purchasing a property that was owned by Malawi Savings Bank Limited. [108] On being referred to the Sale Agreement between Malawi Savings Bank Limited and Blantyre Baptist Holdings Limited dated 16" July, 2009 Pastor Chirwa told the Court that the Defendant actually purchased Malawi Savings Bank Limited interest. Asked whether that interest would include a public 30 road or road reserve and the Claimant’s land, he said, it certainly would not include those. [109] The witness was then referred to page 69 of the Trial Bundle which was the Site Plan for Elma High School, Blantyre. Pastor Chirwa told the Court that the hostel and the toilet are in front of the public road. Re-Examination [110] Pastor Chirwa was referred to page 69 of the Trial Bundle again. He was requested to place the symbol X on the public road which would cut through the first hostel from the left if this part would have to be demolished. He told the Court that the Defendant did not find it necessary to check the plans or documents at Lands Registry. They operated on an assumption that everything was fine as this was a developed property. [111] The witness was referred to page 73 of the Trial Bundle. He was able to recognize exhibit, “VC3” which was a response letter from the City Council of Blantyre dated 16" March, 2021 and paragraph 3 was clear that the earlier submissions for the Primary School were archived and that it was almost impossible to get hold of them. [112] Pastor Chirwa told the Court that the Claimant engaged him on the issue of the alleged encroachments in the year 2016 when the Defendant bought its property way back in the year 2009. 3] [113] [114] [115] Pastor Chirwa was referred to page 40 of the Trial Bundle which is a map showing encroachment into Plot No. NC 233. He said no author has been mentioned on the map. On page 41 of the Trial Bundle, which is also a map showing encroachment into Plot No. NC 233 H. Kayange is mentioned as the author for Regional Surveyor General (S). On pages 56 and 57 of the Trial Bundle is another drawing of land encroachment of the same Plot. He said this particular one was authored by G. M. Namaona. Pastor Chirwa told the Court that he was not competent to comment on the correctness of the maps/drawings on pages 40, 41, 56 and 57 as he is a layman and, in any case, just saw them on the morning of the court hearing and would not be able to tell the Court the process involved in coming up with such maps/drawings. He also said he did not know the purpose for which they were prepared. Defendant’s Evidence in Chief for Witness No. 2 The second Defendant’s witness was Mr. Moses Botha. He is an employee of the Defendant and that he has been working for it since the year 2009 when it took over the running of Blantyre Baptist Academy from Elma High School. Mr. Botha exhibited a copy of his contract of employment with the Defendant dated 21*' September 2009 and was marked as, “MB1”. Mr. Botha told the Court that initially, he was employed by Elma High School in the year 2003. He also exhibited a copy of a letter confirming his appointment as a French teacher for a probationary period of six months with effect from 1‘t September, 2003 dated 3"! September, 2003. 32 [116] He told the Court that by the time he was employed by Elma High School in the year 2003, the school had already been constructed and had been there for almost 3 years. Mr. Botha told the Court that the parameters of the school have not changed ever since. Cross- Examination [117] Mr. Moses Botha confirmed to the Court that he works as a teacher for the Defendant and that it was the same with Elma High School. He became the Head of Humanities Department and then later, Acting Principal for the school. He told the Court that there was no primary school at Elma High School. Similarly, there was no nursery or pre-school at Elma High School. [118] Asked whether he knew where the beacons of the school were then, he said he did not know. Mr. Botha told the Court that until now, he does not know where the beacons of the school were planted and so would not be able to tell the exact boundary of the Defendant’s property. [119] Mr. Botha told the Court that he did not know that the loan was first given by the then, Loita Bank Limited. He also did not know that the loan was obtained in order to construct more structures. However, the witness agreed that the Defendant’s property was indeed developed in phases. Re-Examination [120] In re-examination, Mr. Botha confirmed that there were additional buildings that have been constructed since the Defendant took over the running of the 33 [121] [122] school. They include a hall, on top of the garage and that the hall was constructed in the first week that the school opened. This marked the close of the Defendant’s case. Analysis and Application of the Law to the Facts The first issue that the Court has to grapple with is whether or not the Defendant’s predecessor-in-title wrongfully constructed developments on a public road or a road reserve which is supposed to be used by the Claimant, thus blocking his access road? The discovery that there was a problem with the Claimant’s land was first made by Bua Construction Company Ltd when it went on site to commence construction works of a house for the Claimant. The approved plans which were given to the contractor by the Claimant could not fit on the site. That was in January 2016. The Claimant then had to engage the services of a private land surveyor in the name of Mr. Gerald M. Namaona to survey the property and advise him why that was the case. The results of the survey showed that the developments on the Defendant’s property, Plot. No. BW 572 had encroached the access road separating the two properties and further encroached the Claimant’s property. The Claimant immediately notified the Defendant about the encroachments on 22"! February, 2016 through a letter. The Defendant never acted on that letter. The Claimant took an initiative and met Pastor Chirwa of the Defendant company at Blantyre Baptist Church near the Independence Arc. 34 [123] The Defendant and its legal practitioners suggested the involvement of relevant stakeholders in the matter, namely, City Council of Blantyre and Departments of Lands and Surveys to ascertain the alleged encroachments. [124] Before the involvement of the relevant stakeholders, a meeting was convened [125] [126] by the Land Registrar at his office to try and mediate the dispute between the parties. The Defendant denied that there were any encroachments by its predecessor-in-title as alleged by the Claimant. The basis of the Defendant’s denial of the encroachments by its predecessor-in-title in that meeting and even during the trial or hearing of this matter is still not clear to this Court. The Defendant submitted that if there were any encroachments, then its additional plans that were submitted to the City Council of Blantyre in 2019 could not have been approved. It is in evidence that the original approved plans that were submitted to the City Council of Blantyre around the year 1999 or 2000 by the Defendant’s predecessor-in-title were archived and could not be traced or located.”’ In this Court’s view, there is therefore no basis for the assumption that the grant of the approval of the additional plans that were submitted in 2019 by the Defendant to the City Council of Blantyre was premised on the fact that there were no encroachments by its predecessor-in- title. It is simply a fallacy and this submission cannot be entertained. The Defendant also submitted that the Claimant has failed to prove his case on a balance of probabilities for two reasons. 20 See Paragraph 97 above. 35 [127] First, 1t contended that the Court should not accept the evidence of Mr. Gerald M. Namaona, the private land surveyor engaged by the Claimant. The law on expert evidence is such that before the Court can accept any person’s opinion to guide it, two things must be established. One, the foundation must be properly laid on which the opinion is based and two, the person giving the opinion must establish his expertise in the field he professes. Learned advocate for the Defendant cited the cases of DPP -vs- Msosa*' and Luwembe -vs- Rep” in support of its contention. The alleged expert witness failed to produce his degree, his licence to practice as a land surveyor which is contrary to the requirements of sections 27 and 28 of the Land Survey Act, 2016. The Defendant argued that the same applies to the allegation that he once taught at the then, Polytechnic, a constituent college of the University of Malawi. The alleged expert witness should have been able to produce a contract or letter of appointment to that effect. The law is to the effect that the court will not make a determination on mere allegations. Such allegations must be substantiated with evidence. The Defendant relied on the decisions in Glens Waterways Limited -vs- Attorney General (Ministry of Transport and Public Works)” and Bon Kalindo et al -vs- Springstone Company Limited et al.”4 [128] Second, the Defendant submitted that the Court should not have regard to the reference to the witness statement of Mr. Omoha Naison Mbalame, the 217 MLR 128, at 130-131. 227 MLR 390 at 393. 3 Commercial Case No. 49 of 2009 (High Court of Malawi) (Commercial Division) (Blantyre Registry) (Unreported). 24 Civil Cause No. 512 of 2012 (High Court of Malawi) (Principal Registry) (Unreported). 36 Regional Surveyor General (S). The law 1s to the effect that any statements or documents made by a person not called as a witness before the court, can only be tendered to show that such statements or documents were made but not as to the truthfulness of the same. The Defendant cited the case of Jacques Mariette -vs- Toyota Malawi Limited’’in its aid. In addition, while Mr. Mbalame claims to have authored the report, it says something different. The report says 1t was prepared by H. Kayange for Regional Surveyor General (S). These bring into serious question the said report and the Court should not rely on it. [129] This Court agrees with the Defendant’s submission that the Claimant’s witness, Mr. Gerald M. Namaona had dismally failed to establish his expertise in the field he professes in court. His academic qualification was not produced to the Court, his licence to practice as a land surveyor as required by sections 27 and 28 of the Land Survey Act, 2016 was not produced as well, and so too, the certificate of registration for his practice and any document showing that he once taught at the then Polytechnic, a constituent college of the University of Malawi as he claimed. All these are matters that should have been proved by some documentary evidence and certainly, learned advocate for the Claimant should have guided the witness better than he did in this case. This is notwithstanding the fact that the Claimant testified that he is a lawyer himself. In any litigation, nothing should ever be taken for granted. [130] However, this Court does not agree with the Defendant that the entire evidence of Mr. Gerald M. Namaona should not be accepted. When the Court 2° Civil Cause No. 636 of 2010 (High Court of Malawi) (Principal Registry) (Unreported). 37 [131] [132] visited the /ocus in quo, one of the things that Mr. Namaona did was to show the Court where the beacons of the Claimant’s property were. One such beacon was B19 which 1s near the brick wall fence corner of the Defendant. Beacon PC21 is under the brick wall fence constructed by the Defendant’s predecessor-in-title. Surely, merely showing someone where beacons of a particular property are is something that any Jim and Jack can do. It would not require for anybody to be an expert in any field. Retracing beacons would perhaps require specialized knowledge. To the extent that Mr. Gerald M. Namaona did something that any lay person could do, namely, showing the Court where the beacons of the Claimant’s property were, that part of the evidence will be and is accepted by this Court. The Defendant further submitted that the Court should not have regard to the reference to the witness statement of Mr. Omoha Naison Mbalame, the Regional Surveyor General (S). That is so because the law is to the effect that any statements or documents made by a person not called as a witness before the court, can only be tendered to show that such statements or documents were made but not as to the truthfulness of the same. It was also said that while Mr. Mbalame claimed to have authored the report, the report itself says that it was prepared by H. Kayange for Regional Surveyor General (S) and that these put into serious question the said report. The submission by the Defendant makes reference to two things, namely, witness statement of Mr. Mbalame and his report which was attached to his witness statement as an exhibit. It is correct that the Claimant decided not to call Mr. Mbalame as his witness as was initially indicated to the Court during the scheduling conference when his witness statement was already placed on 38 [133] record. In so far as the Defendant’s submission relates to Mr. Mbalame’s witness statement, this Court agrees with it. The matter is different when it comes to Mr. Mbalame’s report. Order 17, rule 19 (1) of the Courts (High Court) (Civil Procedure) Rules, 2017 1s to the effect that a party may not call an expert or put in evidence an expert’s report without the permission of the Court. During the scheduling conference held on 11" February, 2021 this Court granted permission to the Claimant to amend its list of documents, which specifically included Mr. Mbalame’s report dated 12" July, 2017 and the drawings attached thereto. The Court also did the same to the Defendant when it granted it permission to amend its defence and also list of documents to include two documents, namely, the appointment letter for Mr. Botha and a professional opinion by aland surveyor. In effect, both parties herein were given permission by the Court to put in evidence expert’s reports. It must be pointed out, however, that Mr. Mbalame’s report did not comply with some of the requirements prescribed by Order 17, rule 25 of the Court’s (High Court) (Civil Procedure) Rules, 2017. That 1s understandable because it was not prepared at the request of the Court or any of the parties to be specifically used for court proceedings. It was prepared on instructions from the Land Registrar in order to assist him in making appropriate decisions aimed at addressing the dispute between the parties herein. That does not necessarily disqualify the report for its use in these proceedings. It is important to emphasize however that experts’ reports prepared specifically for purposes of court proceedings, they all must comply with those prescribed requirements. 39 [134] There is no legal requirement that in all cases and at all times, an expert must attend a hearing. This is clear from the import of Order 17, rule 20 (2) of the Courts (High Court) (Civil Procedure) Rules, 2017 which provides that the Court may direct that an expert need not attend a hearing unless it 1s necessary to do so in the interests of justice. In this case though, there was no such direction by this Court. However, it is only being highlighted for the singular purpose of demonstrating that in some cases, an expert’s report may be used in a trial or indeed other proceedings without necessarily the expert being called as a witness. Medical reports are one such example in our jurisdiction that are often used during trial and even for assessment of damages proceedings without the authors or makers being called as witnesses in all cases and at all times. [135] Order 17, rule 27 of the Courts (High Court) (Civil Procedure) Rules, 2017 provides that where a party has disclosed an expert’s report, any party may use that expert’s report as evidence at the trial. In this case, the Claimant disclosed Mr. Mbalame’s report in his amended list of documents. He also attached it to his witness statement as exhibit, “JSB11”. The report was therefore open to be used by either party as evidence at the trial. The Claimant did. The decisions relied upon by the Defendant does not assist it. They have been overtaken by Order 17 of the Courts (High Court) (Civil Procedure) Rules, 2017. Consequently, this Court will have regard to Mr. Mbalame’s report in its own right as proper evidence before it. In any event, the suggestion to involve relevant stakeholders including the Department of 40 Surveys in the resolution of this matter came from the Defendant’s legal practitioners themselves.”° [136] It should be recalled that the Court had a /ocus in quo. It served two purposes. First, to appreciate the boundaries of the properties in issue and the public road or road reserve. Second, to appreciate the extent of the alleged encroachment. [137] In his testimony to the Court, the Claimant explained that he gave the architects the Deed Plan for his property to enable them prepare the designs/plans for approval by the City Council of Blantyre. The Deed Plan is No. 948/99 and was surveyed in August 1999 by C. S. S. Joyah and was tendered in evidence as exhibit, “JSB3”. The Court took time to study it in concentration. Along boundary line beacons PC21 and B20 on the right-hand side, there is clearly marked a 12m road reserve. Thereafter, there is another Plot No. NC 69. Immediately above Plot No. NC 69 is Plot No. BW 572 belonging to the Defendant. Plot No. BW 572 does not go beyond the road reserve. It ends right on the road reserve. Yet, when the Court visited the scene, it was very clear that the Defendant’s predecessor-in-title constructed a brick wall fence that covered the entire road reserve and went beyond beacon PC21 towards beacon B19 of the Claimant’s property. The extent of the encroachment was very well appreciated. [138] At this point, it must be mentioned that during the scheduling conference held jy on 11" February 2021, the Court made an order requiring the Defendant to 26 See Paragraph 52 above. 4] produce documents in its custody, control or possession that it had not disclosed in its list of documents that would assist the Court in the resolution of the matter within 14 days from that date. These documents were its Land Certificate and approved Deed Plan for its property. This particular order was never complied with by the Defendant. The question is, why did it not want to put all the cards on the table facing upwards? [139] It will be recalled that Pastor Chirwa told the Court that the Defendant never took any trouble to ascertain the exact or actual boundaries of their property with the Department of Lands or indeed engage the services of any land surveyor for that purpose.”’ It is also in evidence that the Defendant was never shown the beacons for its property at the time of sale by officers of the Malawi Savings Bank Limited. The Defendant proceeded on the assumption that everything was fine as this was developed property. In addition to all this, the Court was told that the Defendant had engaged the services of a private land surveyor in the name of Mr. Precious Kondowe to advise it on the Claimant’s claim but the assignment was never completed as he had been engaged too close to the court hearing date. Why would a private land surveyor only be engaged close to the court hearing date which was 17" May, 2021 when the issue of encroachment was notified to the Defendant in February 2016? The Defendant took an unnecessary risk due to its failure to take those important steps in transactions of this nature and therefore cannot run away from its consequences. There is only one conclusion to be drawn from all this. The Defendant was not telling the whole truth and was also hiding critical information. 27 See Paragraph 99 above. 42 [140] In view of the foregoing analysis, and in the absence of any contrary professional report produced in Court by another land surveying expert challenging the Claimant’s evidence, this Court finds and holds that the Claimant has proved on a balance of probabilities that the Defendant’s predecessor-in-title wrongfully constructed developments on a public road or road reserve which is supposed to be used by the Claimant, thus blocking his access road. This is also borne out by the evidence of the Defendant. Both Pastor Chirwa and Mr. Moses Botha confirmed this when they told the Court that the parameters of the school have not changed ever since.*® The position of the law in Malawi is such that no person, legal or natural, can ever acquire title over public land or customary land by prescription or adverse possession. In this case, that public land is the public road or the road reserve. [141] This Court is of the view that the City Council of Blantyre should have been made a party to these proceedings in order for it to account why it let the Defendant’s predecessor-in-title wrongfully construct developments on a public road or road reserve, which is public land, when it was and remains illegal to do so. The City Council of Blantyre abdicated its legal responsibility in this matter. It is therefore not surprising that the Claimant complains that even after being written by the Acting Regional Commissioner for Lands (South) to issue a demolition order against the Defendant’s illegal developments following a report by the Regional Surveyor General (S) into the matter, they took no action. Malawi is a nation founded on the rule of law and constitutionalism. All institutions and persons are required to observe and uphold the Republican Constitution and the rule of law and no institution or 28 See Paragraphs 96, 104 and 116 above. 43 person is above the law.”? It is for every institution’s or person’s benefit and interest to abide by the rule of law and constitutionalism. It is the safest thing for us all to do. In that way, our society will function well and we will avoid and spare ourselves from many problems and challenges that come with breaches of these principles. The Court echoes what has been said elsewhere in the corridors of power, “follow the law or else, the law will follow you”. Follow you, the law always does, no matter how long it may take. [142] There was a submission by the Defendant that the Claimant has no lJocus standing to commence an action to enforce against encroachment on public road. It relied on the decision in Bon Kalindo et al -vs- Springstone Company Limited et al in which the Claimants had brought an action against the Defendants for what they termed encroachment and trespass onto Mulanje Mountain. On summary application by the Defendants, the High Court struck out the proceedings on the sole ground that Mulanje Mountain having been declared public land, the Claimants had no standing to enforce against its alleged encroachment. That case is distinguishable from the present one. None of the Claimants had demonstrated to the Court that they had suffered a specific or particular injury beyond those which other members of the public had suffered. In the present case, the Claimant has demonstrated a specific injury beyond that suffered other members of the public. The encroachment by the Defendant into the public road or road reserve, is blocking his access road to his property. Further, as a result of the encroachment by the Defendant into the public road or road reserve, members of the public have now created an access road on his private property. Other members of the public have not ?° Section 12 (1) (f) of the Republican Constitution. 44 [143] come before this Court with similar complaints. The Claimant has cited numerous authorities that the Court need not reproduce for reasons of brevity of the judgment that support the fact that he has /ocus standing in this matter and so the Court finds and holds. Suffice to say that the general proposition of law that no person can enforce against encroachment or trespass of public land has exceptions. Consequently, the submission by the Defendant on /ocus standing does not find favour with the Court. It is dismissed. This disposes of the sixth issue in this matter in advance. The second issue is whether or not the said construction developments further encroached onto a substantial part of the Claimant’s property? The answer must be in the affirmative. The report by Mr. Mbalame, Regional Surveyor General (S) showed that the brick wall fence for Plot No. BW 572 partly extended into the boundary line B19 — PC21 of Plot No. NC 233. The Court was also able to appreciate the extent of the encroachment during its visit to the scene. The Court finds and holds so. [144] The third issue is whether or not the Defendant continues to wrongfully block the Claimant’s access road and to illegally encroach on the Claimant’s property? Again, the answer must be in the affirmative. The evidence in this case has already proved this fact. The Court finds and holds so. [145] The fourth issue is whether or not the Claimant is entitled to the claims and reliefs contained in the Statement of Case? This will be dealt with after resolving the question whether the action herein is statute barred or not as submitted by the Defendant. 45 [146] The fifth issue is whether or not the Claimant’s action is statute barred or not. The Defendant contended that as per the evidence of Mr. Moses Botha for the Defendant, he was employed by the Defendant’s predecessor in the year 2003. By that time, the structures herein had already been in existence for almost 3 years. The only evidence of the protest for the alleged trespass by the Claimant was in the year 2016. This is 13 years from the time Mr. Botha joined employment with the Defendant’s predecessor which was after the buildings had already been constructed. The Defendant submitted that the Claimant cannot maintain the within action the same being statute barred. [147] It is in evidence that the Defendant purchased its property on 16" July, 2009. By February 2016 when the Claimant first raised the issue of encroachment, the Defendant had been on the land for about 7 years. The action herein was commenced in the year 2016 after a period of about 7 years from the date when the Defendant acquired its property. The evidence shows that part of the land where the Defendant has encroached is public land. The statute of limitation cannot apply to that part of the land. The Court has already found and determined that the Defendant cannot acquire public land through prescription or adverse possession. [148] As regards part of the land that belongs to the Claimant, the Defendant would only get good title if it occupied and possessed the land and used it inconsistently with the rights of the owner for a period of 12 years. In other words, the person claiming ownership by adverse possession must have entered or remained on the land, for not less than the period of limitation, 46 without the permission of the person with the paper title.*° In this case, the Defendant occupied and possessed the land in 2009 when it purchased it from Malawi Savings Bank Limited. The Claimant purchased his property on 31“ October 2014. He only discovered about the encroachment in January 2016 when he wanted to commence construction works for his house upon being informed by his contractor that the plans could not fit on the land. [149] By February 2016 when the Claimant first raised the issue of encroachment with the Defendant, the Defendant had been on the Claimant’s land for no more than 7 years as demonstrated in paragraph 147 above. Within the same year, 1.e. 2016, possession of the Claimant’s land by the Defendant was interrupted by the institution of the within proceedings by the Claimant. 7 years 1s far less than the 12 years that would have entitled the Defendant to acquire good title over the part of the Claimant’s land that it had encroached in order to preclude him from asserting his nights as the proprietor of the land. [150] Additionally, in terms of section 6 of the Limitation Act, no action shall be brought by any person to recover land after the expiration of twelve years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims, to that person. The Supreme Court of Appeal for Malawi observed in Hetherwick Mbale -vs- Hissan Maganega that this section refers to the owner of the land. The owner of the land is barred from bringing any claim to recover the land if he neglects to commence proceedings before 12 years is up. The section does not address 3° Per Mbvundula J in Shire Highlands Rifle Club -vs- Makandi Tea and Coffee Estates, 07 above. A7 the trespasser.*! It is the firm view of this Court that the right of action in this matter accrued to the Claimant in January 2016 when the discovery of the encroachment on the public road or road reserve and his property by the Defendant was made. It could never have accrued to him in the year 2003 as the Defendant would like to make this Court believe. In the year 2003 when the Defendant’s predecessor-in-title constructed the brick wall fence and the other offending structures, the Claimant never owned the property that he does and so it could not have been possible for the right of action to accrue to him. In any case, the Claimant did not even bring the claim through his predecessor- in-title, Mr. Chadwick Lawrence Mphande, through whom the right of action could have first accrued. In the year 2003, there was no any nexus between the Claimant and the Defendant. In short, the Court finds that the action herein is not statute barred. [151] The Court now reverts to the fourth issue which was pended for consideration until the question of the action being statute barred was resolved. It was whether or not the Claimant is entitled to the claims and reliefs as contained in the statement of case. Again, this issue must be answered in the affirmative. There is nothing that the Claimant has not been able to prove to the requisite standard as required by law. All the Claimant’s prayers and reliefs are therefore granted. [152] The last issue is about costs. These are awarded in the discretion of the Court as 1S provided by law as we have already seen. The Claimant has proved his case on a balance of probabilities. He 1s awarded costs of the action. These 31 n5 above, para 66 of the Judgment on page 20. 48 will be assessed by the Registrar of this Court if they will not be agreed by the parties. Finding and Determination [153] In view of the foregoing, it is this Court’s finding and determination that the Claimant’s claim has succeeded. Consequently, the Court grants him a permanent injunction restraining the Defendant, by itself, its servants or agents or otherwise howsoever from remaining or continuing in occupation of the said public road or road reserve and on the Claimant’s property. It also grants a mandatory injunction requiring the Defendant to, by itself, its servants or agents or otherwise howsoever, demolish all the developments on the said public road or road reserve as well as the Claimant’s property and make the same fit and usable and passable road and bare land for the Claimant’s further development. However, to ensure that there is no disturbance to learning by pupils and students of the Defendant’s school, the Court directs that demolition of the offending part or buildings should be carried out soon after the current school term ends on or about 16" December, 2022 or if the school uses an international curriculum, then during the pre-Christmas break or holiday and in any event within 14 days from that date or by 31‘ December, 2022, as the case may be. The Claimant is also awarded damages for trespass, loss of use of the portion of his land and aggravated damages as claimed. These will also be assessed by the Registrar of this Court if they will not be agreed by the parties. [154] Any party dissatisfied with this judgment has a right to appeal against it to the Supreme Court of Appeal for Malawi within 30 days from today. 49 [155] Made in open court this 30" day of November, 2022 at Blantyre, Malawi. [156] Ms. Zelia Mthunzi the court reporter sadly passed on between the time that trial took place and the period when the judgment was being prepared. The loss of any life is one too many. May her soul rest in eternal peace. la 72, M. D. MAMBULASA JUDGE 50