Kwandekha v Baraka (Land Cause 72 of 2016) [2017] MWHC 121 (22 May 2017)

IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY LAND CAUSE NUMBER 72 OF 2016 BETWEEN: BERNARD MAULETI KW ANDEKHA PLAINTIFF AND ALLI M'BARAKA DEFENDANT CORAM: JUSTICE M. A. TEMBO, Chaponda, Counsel for the Plaintiff Mwala, Counsel for the Defendant Mtegha, Official Court Interpreter ORDER order on the plaintiff's restraining howsoever This is this court's the defendant injunction from trespassing otherwise on a 2.168-hectare proprietary rights II village case. The land is situated Balaza Chigaru application by himself for continuation or or his servants any of this in the area of Traditional piece of land that is the subject near Kholombidzo or planting in Blantyre road block. of an order of whether matter or agents trees or crops or exercising Authority filed an affidavit The plaintiff 'arguments. . skeleton arguments The defendant in support together also filed an affidavit in opposition of his application with skeleton together with The plaintiff's of customary Authority land from the Malawi Government case is as follows. That on 16th July, 2008 he bought 2.168 hectares land from Mr Keyston Maniya of Balaza Village II, Traditional in Blantyre. to apply for a lease of the said and he was offered a lease on 13th June 2011. He then proceeded Chigaru On 3rd October, 201 herein at K3, 500, 000.00. 1 the plaintiff contracted an estate agent to sell the piece of land stated that he asked the defendant on 7th July, 2012 to find a customer The plaintiff to buy the piece of land herein. He added that the defendant did not find that customer but instead without started using the land without paying for the said land. the consent of the plaintiff and 2015 the plaintiff Chigaru Authority stated that, in September, He further Headman Balaza and Traditional summoned resolve justification thereby d. He added that, or consent and was told not to do anything the plaintiff however, depriving the defendant on 4th February, where the defendant was on the land herein until the matter was any trees on the land in issue 2016 without from the plaintiff started planting of use of the said land. reported this matter to Village The plaintiff the land herein. added that the defendant is continuing trespassing and cutting trees on On the other hand, the case of the defendant is that that the injunction the plaintiff herein must be vacated for having been obtained material by through suppression of facts. obtained asserted The defendant a customer for the land herein defendant started using t he land herein. that it is not true that he was engaged by the plaintiff to find to be sold at K3, 500, 000 and that instead the He stated that the truth of to find a buyer for him but that the plaintiff sold the land herein a price of Kl, 000, 000 which the defendant did not engage the defendant at to the defendant some paid. The defendant is that the plaintiff the matter exhibited evidencing receipt of the money amounting to Kl, 000, 000 at various documents times between 31st July, 2012 and 14th December, 2012. One of the payments is actually by the plaintiff acknowledging himself.'There the initial installment ofK500 000 by the defendant. by the plaintiff on a copy of the passport is also a receipt issued of the plaintiff acknowledged payment of from a Mr Tambwa who is on the adjoining There is also evidence in dispute herein. He deponed that he had been introduced 2012. Further, defendant in December, defendant is the new owner of the land in dispute land to the land by the plaintiff stated that the that at that time the plaintiff after the land sale herein. to the with the plaintiff and the defendant decided to his mind and Balaza but on their way the plaintiff changed headman would demand 10 per cent of the purchase price Mr Tambwa added that he together go the Village headman told them that the village from the plaintiff the Village delivered K5, 000 to the Village and that therefore the defendant should just send some money to headman through Mr Tambwa which was done and Mr Tambwa that day. headman Mr Tambwa confirmed that the defendant has been in possession of and farms the does not come to the land. land in dispute h erein since 2012 and that the plaintiff that, after he completed payment for the land herein the stated further gave him possession The defendant plaintiff December, also surrendered the Government's defendant 2012 without interference as well. of the same and he has been in occupation since from the plaintiff. He added that the plaintiff offer of the lease over the land in dispute to the asserts in 2015 upon started a rumour that the land in issue would be taken over by Government The defendant hearing land owners would get compensation. that the plaintiff g the defendant botherin and that added that once the rumour started circulating, came to the plaintiff The defendant see the defendant and told him that the plaintiff negotiations with Government he told the plaintiff that and reclaimed the land in dispute . over the land. The defendant further this was not possible, the plaintiff started added that when trouble causing must take charge of any possible stated creating further that, as part of the plaintiffs all kinds of explanations The defendant herein he started plaintiffs and Company to write the Ministr that the plaintiff had lost the lease document and that the Ministry spute. not entertain any applications in relation to the to Makhalira land in di instructions y of Lands of Lands must and among them was the effort to grab the land observes The defendant different from what the plaintiff the land herein upon being instructed to find a buyer for the plaintiffs to Makhalira and Company is just started using land. is now alleging that the foregoing instruction that the defendant his title and then became aware of the plaintiffs approached the Ministry of Lands with a claim that he had The defendant stated that he subsequently view to register lost the lease documents. of Lands about the true position in this matter. The defendant then advised his lawyers to write Ministry The defendant consequently matter by claiming that the plaintiff actually sold the land herein to the defendant. stated that the plaintiff is a trespasser misrepresented facts i� this when in fact the plaintiff had The defendant also contended balance to use the land herein pending determination of the main matter herein. that he has been using the land since 2012 and the lies in favour of vacating the injunction and that he continues of convenience insisted In response, the plaintiff were collected Kachale Banda who was initially interested the defendant never returned the documents. and offer of the lease view to showing the same to Geoffrey in buying the land herein. He added that that his copy of the passport by the defendant with a The plaintiff denied selling his land to the defendant at Kl, 000, 000. He then asserted that the receipts defendant are being used in bad faith by the defendant obtained for that purpose. for the alleged payment of Kl, 000, 000 by the since the same were not The plaintiff Authority issue. All the documents were written in 2015. produced documents from the village headman Balaza, Traditional Chigaru and Ministry of Lands showing that he is owner of the land in This Court is aware of the applicable law on interim as submitted both the plaintiff and the defendant. This court will grant an interim injunction where the applicant discloses a good arguable This court will not try to determine the issues enough if the plaint evidence but it will be erious question to be tri ed. iff shows that there is a s claim to the right he seeks to protect. injunctions on affidavit by is that this Court is required to investigate The result only. All that needs to be shown is that the claimant's and reality. per cent or 20 per cent. See Mothercare per Megarry Megaw LJ at p. 373. of winning Ltd v Robson Books Ltd [ 1979] FSR 466 FSR 337 per V-C at p. 474; Alfred Dunhill Ltd v Sunoptic SA [1979] Beyond that, it does not matter if the claimant's chance the merits cause of action to a limited extent has substance is 90 has shown that he has a good arguable claim and that there is a serious damages would then the court will consider the question whether remedy to either party if the injunction If the plaintiff question to be tried, be an adequate it turns out later that the court should have arrived granting remedy and defendant would be able to pay them, an interlo injuncti on should be refused, irrespective of the strength Mkwamba v Indefund of the injunction. cutory order of of plaintiffs claim. is granted or vice versa and Ltd [1990] 13 MLR 244. at a different decision on the Where damages at common law would be an adequate See Where there is an arguable will then have to consider of the interim 2003 (High Court) 30 of 2001 both citing WLR316. case and damages are not an adequate the balance whether order of injunction. See Kanyuka remedy, the court of convenience favours the granting v Chiumia civil cause number 58 of (unreported); Tembo v Chakuamba MSCA Civil Appeal Number Cynamid Co. v Ethicon Ltd [1975] the famous American The first question this Court has to resolve good arguable claim to the right he seeks to protect. is whether the plaintiff has disclosed a The plaintiff a serious triable the sequence of events argues that he has rights in the land which are at stake and that there is issue concerning adjudication of his rights in the land in issue given pertaining to the sale of the land herein. This Gourt consequently de that needs to go to trial in this matter. termines that th e plaintiff has disclosed a triable i ssue whether damages This Court then has to consider the question remedy to either party if the injunction is granted that the court should have arrived at a different injunction. defendant would be able to pay them, an interlocutory order of injunction refused, irrespective of the strength of plaintiffs claim. Ltd [1990] 13 MLR 244. Where damages at common law would be an adequate remedy and should be or vice versa and it turns out later decision on the granting of the See Mkwa mba v Indefund would be an adequate What this Court wishes to observe is that land is inherently damages are not an adequate Therefore, the issue on adequacy of damages applications for injunction civil cause number 451 of2013 (High Court) to consider whether the balance herein in relation to land. See Nanguwo v Tembenu (unreported). This remedy where the same is dealt with adversel is out of the question in relation y. to and another of convenience Court will theh have or not. unique and therefore favours the granting of an injunction submitted As rightly balance Lord Diplock of convenience. said, at p. 408: by both parties, In American most injunction Cyanamid cases are determined Ltd [1975] on the AC 396 Co. v Ethicon ... it would be unwise to attempt be taken into consideration relative to be attached weight where the balance in deciding to them. These will vary from case to case. even to list all the various matters which may need to lies, let alone to suggest the such as Cayne v Global Resources that it is not mere convenience Natural In other cases, the courts have insisted the risk of doing an injustice Co. v Ethicon Cyanamid would be incapable in assessing where the balance to one side or the other. Ltd said the extent of being compensated to which the disadvantages in damages of convenience lies. in American to each party is always a significant Lord Diplock factor that needs to be weighed, but plc [1984] 1 All ER 225, In American considering balanced preserve Co. v Ethicon Cyanamid of convenience: the balance to take such measures of prudence it is a counsel From Garden Cottage Foods the status quo'. Ltd Lord Diplock 'Where other factors appear to be evenly said at p. 408 that, m as are calculated Ltd v Milk Marketing Board to . 6 [1984] defendant delay, AC 130, it appears that the status quo ante is the state of affairs before the started the conduct complained of, unless there has been unreasonable when it is the state of affairs immediately before the application. What is significant to note is that, the plaintiff gave two contradicting on what happened to the lease documents he stated In one instance, and in that the documents were taken by the defendant and were never returned another instance, to the fact that the plaintiffs cr he stated that the lease document edibility is que was lost. This points in this matter. stionable. explanations of the plaintiff casting doubt on the authenticit y of the evidence submissions Despite of sale of the land as provided on the part of the plaintiff he has been in possession has simply most likely started plaintiff him the land herein in 2012 because Government compensation by the defendant makes this Court believe of the land in dispute at this point, the lack of credibility the story of the defendant that herein since 2012. Further, that the the defendant in 2015, after selling bothering for land in the area in question the plaintiff got the alleged rumour of in this matter. In the foregoing circumstances, the injunction herein dispute the rights of the parties are determined. the balance of convenience lies in favour so that the defendant who had been in possession of vacating of the land in herein upon an alleged purchase of the same must maintain possession until This Court would however make clear that the defendant adversely with the legal interest is heard and determined. He may however proceed to farm the land as he used to prior to the injunction in this land by disposal that has been vacated. must not in any way deal or otherwise until this matter This Court will not have to consider is a matter of last resort. the relative strength of the parties' cases. This In American Cyanamid Co. v Ethicon Ltd Lord Diplock said at p. 409 that to take into account in tipping the relative strength ... it may not be improper of each party's application. disclosed party's case by evidence This, however, case as revealed by the affidavit evidence should be done only where it is apparent the balance adduced on the hearing of the upon the facts of one that the strength is disproportionate as to which there is no credible to that of the other party. dispute The court is not justified in embarking order to evaluate the strength a trial of the action case. of either party's upon anything resembling upon conflicting affidavits in The parties escalated trial. to trial must ensure that this matter mediation of this matter as soon as possible since this Court is that is exempt from mandatory is util fully seized Costs on this application shall be for the successful defendant. Made in chambers at Blantyre this 22nd May 2017. JUDGE 8