Chinga v Nanseta (42 of 2008) [2010] MWSC 3 (12 October 2010)

J UI.'t(-IAK IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL CASE NO. 42 OF 2OO8 (Being High Court Ciuil Cquse No.2276 of 2007) BETWEEN: CARLOS TCHINGA.... -AND- ....... APPELLANT CORLEN NANSETA BEFORE: HON. JUSTICE TAMBALA, SC, JA RESPONDENT HON. JUSTICE TEMBO, SC, JA HON. JUSTICE SINGINI, SC, JA Mr. Makhalira....... Counsel for the Appellant Mr. Chisama. . Counsel for the Respondent Mr. Balakasi.. . Recording Officer JUDGMENT Tambala, SC, JA Carlos Tchinga, the appellant brought this appeal against the decision of rwea, J, who refused to discharge an order of injunction restraining the appellant from exercising the duties of village headman chingondo and further restraining Traditional Authority Mwambo from enthroning the appeliant as village headman Chingondo. The learned Judge's decision was made in a ruling given on 24tn January 2OO8. The facts relating to the appeal are that there exists a long outstanding dispute between the appellant and the respondent regarding the 1awfu1 heir to the village headmanship of chingondo, in the area of rraditional L Authority Mwambo, in Zornba District. In the year 2OOO, TraditionaL Authority Mwambo resolved that the appeliant was the proper and rightfui heir to the disputed village headmanship. The respondent was dissatisfied. Through the chief Legal Aid Advocate, he sought the intervention of the District commissioner, zorr.ba. The latter caused the appointment of an independent body to inquire into the dispute and reach a proper decision. The appointed body included some traditional leaders from Mangochi and Machinga. It comprised senior chief Jalasi, Tradtional Authority Chimwala and Sub Traditional Authority Mkoola. The body convened and carried out its investigations. It reached a conclusion that the proper and lawful heir to the disputed village headmanship was the respondent. That decision was made on 24th July, 2006. This time, it was the appeliant who was dissatisfied. He commenced an action by way of judicial review proceedings against zornba District Assembiy, the Ministry of Local" Government and Attorney General in the High court Principa] Registry. The action related to the decision to appoint the independent body which considered the village headmanship dispute. Instead of proceeding to fu11 trial, the action was settled by the parties and the court entered a consent judgment. The terms of the consent judgment were that the appellant would be enthroned village headman chingondo and that each party would pay its own costs. The respondent, who was not a party in the jud.icia-l review proceedings, was dismayed when news of the consent judgment reached him. He commenced an action by means of originating summons seeking an order to set aside the consent judgment made in the judicial review proceedings. He then applied ex-parte for an order of interlocutory injunction. on 17tt, October, 2OO7 , the High Court at the Principai Registry granted the order of injunction in the following terms:- " 7 . That the 7"t defendant (appellant) be restrained from conducting the duties of Group Village Headman Chingondo until a, further order of this court. 2. Thqt the 2"d Defendant (Traditional Authonty Mtuambo) be restrained from enthroning the 7"t Defendant as Group Village Headman Chingondo until ttte determination of the Originating Summorls herein or a further order of tLtis cortrt." TAKE NOTE that the applicant is required to file an inter- partes sr-lmmons for an interlocutory injunction within 14 days of this order. The respondent failed to fi1e an inter-partes application for interlocutory injunction within 14 days as directed by the Court. About 3.d December, 2OO7 , the appellant appeared before the High Court in the Principal Registry with an application for the discharge of the ex-parte order of injunction granted on 17th October, 2OO7 . The respondent did not appear. The Court was informed that counsel for the respondent had gone some place to attend a seminar. Then the matter was adjourned to 13th December, 2OA7. When the court assembled to hear the appeliant's application on 13th December, 2OO7, the respondent was, agalrr, absent although his counsel had been served with the notice of hearing. The Court proceeded to hear the appellant on his appiication. However the Court disallowed the application to dissolve the injunction on the ground that the appeliant acted improperly and unfairly when he brought an action in judicial review without the knowledge of the respondent and when the action ended in a consent judgment in the absence and to the detriment of the respondent. The learned judge reasoned that the appellant did not appear before him with clean hands and since the remedy which he was seeking was equitabie the learned judge felt constrained to reject the application. Dissatisfied with the decision of the learned Judge in the Court below, the appellant appealed to this court. The order of injunction issued by the Court below against the appellant was obtained ex-parte. The appellant was not heard before the order was made. Such orders of injunction have a tendency to violate the basic principle of natural justice that no one shall be condemned without being heard. That is why ex-parte orders of interlocutory injunction are generaliy given for a short period to enable the plaintiff to prepare an inter-partes application giving the defendant notice and opportunity to prepare a defence to such application. This view seems to be supported by the following passage in paragraph 29 I 1l8 of the Supreme Court Practice 199I edition:- "Art ex-parte injunction should generally be until a certain doA, usuallg tLrc nert motion daA. . tutrcre an injunction is granted to extend ouer a certain dag or until further order, it means that the injunction maA be dissolued at an earlier date than tLrc dag limited, but cannot continue beyond sucLt date without a fresh order." According to the terms of the injunction granted on the 17th October , 2OOT , it would appear to us that the operation of the ex-parte order of injunction was limited to L4 days. To go beyond a period of 74 days required a fresh application brought by the respondent inter-partes and granted by the court following such appiication. That was clearly the intention of the Court when it granted the ex-parte order. When the appellant's application to dissolve the injunction came before the Court below on 17th October,2OO7, the respondent had failed to comply with the courts requirement that he brought an inter-partes application within 14 days. No explanation was given to the court why there was noncompliance. As a matter of fact the respondent did not appear before the court. The respondent was in breach of a requirement imposed by the court. He disobeyed the court's order to appear before it on 13th December, 2OO7 to answer to the appellant's application. The respondent was in contempt of court. It is arnazing that the court below was ab1e, on its own and without submission from the respondent, to employ principles of equity to make a decision in favour of the respondent. we take the view that, when the matter cafne before the court on 13th December, 2oo7 , there was no ord.er to either discharge or extend, the same having elapsed 14 days after 17*' october 2oor. Besides, the appefantis application was unopposed, the respondent having elected not ib attend the court on the date set for the hearing of the application. The learned Judge, in the court be1ow, had no discretion to exercise, in the circumstances, but to decide in favour of the appellant. in the circumstances this appeal succeeds. It is allowed with costs. DELIVERED in open court on this 13tn day of october, 20 10 in Blantyre. Signed... P$,J,"wt D. G. Tambala. SC, JA Sioncrl -A--A-\ '*'1) .t.'.'. A. K. Tembo, SC, JA E. M. Singini, SC, JA JUDICIARY IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL I.,{O. 55 OF 2019 (Being High courl of Malawi, Lilongwe Regisrry, civil cause No. g29 of 200g) BETWEEN: DR KUTENGULE COWEN NGALANDE -AND- lST APPELLANT 2ND APPELLAI{T GENERAL FARMING LIMITED..... .... RESPONDENT CORAM: THE HONOURABLE JUSTICE TAMBALA SC, JA THE HONOURABLE JUSTICE TEMBO SC, JA THE HONOURABLE JUSTICE TWEA, JA Absent, of Counsel for the Appellant Kaluwe, of Counsel for the Respondent N&"E. W. Mwale - Official Inteflrreter JUDGMENT Twea, JA This is an appeal against the ruling of Justice Chombo delivered on 14il'July, 2009' dismissing'th. appellants' application to discharge an order of injunction granted in favour of the,espond.nt. The respondent, Generar Farming Limited, by writ of summons sued the first and second appellants, for possession, damages for trespass, a declaration that the appeliants are not entitled to the use of the land and an injunction restraining the appellants from entering or using the land in issue, on7't' November zoo8. o; i3ilN;;;;..,liot the respondent obtained an injunction, eX - parte, restraining the appeilants, their servants, agents or whosoever from entering upon or continuing to construct structures on the land' An inter - parte treating was set for and heard on r3,I r. Lruury , z00g when, agaLn, the court held in favour of the respondent. on 20tl'March, z009,the appeilants fired a summons to discharge the order of injunction on grounds, lnt.r aria, that the respondent suppressed some material facts. The apprication to discharge was supported by an affidavit and supplementary affidavit of Happy Thengorose, on behalf of the appetants, sworn on fg'i " z;i iprr, 2009 una respectively. "ounrel, lt*.t - The gist of the appellant's affidavits was that the service on the first defendant was inegulariy effected under order 10 r 4of the supreme court Practice Rules,.f e.caus1 ih. ..rpondent did not obtain leave of the court and that the plaintiff then, Press Airicuiture Limited, had no standing ro sue as the proper party was the responient. before the hearins The summon.s to discharge was heard on 2,.d July, 2009. However, lhe respondeit ,ought, andwere granted, reave to amend br substituting Press Agricutture Limiied with tt . ,.rpondent ::TJffions we must mention at the outset however, that it wouid appearthat the Judge' when making her ruling, overlooked the amendment and continued to treat the suit as brought in the name of Press Agriculture Limited. At the hearing of the appeal, however, the appellants coiceded that the amendment settled the issue of the wrong party *ing. we will not, therefore, dweli on this substantively. when this appeal was called, after preliminary issues, the appelrants decided to pursue grounds r,2 and 3 onry of th. appeal, which related to service of the sulnmons. Nonetheless we shall still comment on the other submissions. The respondent herein first appeliant under Order 10 rule provides that: purpomed to have served the process on the r 4 of the Supreme Courl practite Rules. This "4 - Where a writ is indorsed with a claim for the possession of land. the court mav - (a) if satisfied on an ex - parte application that no person appears to be in possession of the land and that service cannot be otherwise effected on any defendant, authorize service on that defendant to be effected by affixing a copy of the writ to some conspicuous part of the land; (b) if satisfied on such an application that no person appears to be in possession of the land and that service could not otherwise have been effected on any defendant, order that service already effected by affixing a copy of the writ to soml conspicuous part of the land shalj be treated as good service on that defendant.,, The learned Judge in the court below held that _ "The particular order in question does not make it mandatory for a party to specifically make an application for parlicuiar service before it is effected,,. with due respect, we find that the Judge misled herself. Both paragtaphs (a) and (b) of Order I0 r 4, pre - suppose that there be an application upon which the court will be "satisfied." The notes to this rule rnake it clear that such application shall be before the Registrar. It is o'r. view that had the learned Judge quoted the whole rule, she would not have come to such a conclusion. It is importantto note that the rules require that, ordinarily, a writ for possession of land should be served personally on each defendant in the- ordinary way. other modes of service however, for example, service by post, may be employed. onry if such other modes of service cannot be effected would one apply to invoke order r0 r 4. In any case, by the notes thereto, one must show-why andlor how other modes are ineffectual to justi$z such a service. This mode of service is therefore an exception. It puts a high onus on the applicant to satisflu the court that such s-ervice is justified by showing that no person appears to be in possession of the land to be recovered and, that service could not otherwise be effected on any defendant. In the present case it is on record that the second appellant was in custody and it appears that, although the respondent knew who the first appellant was, no effofi was made to discover where he was or lived. We find that there was someone in possession of the land and that service could have been effected otherwise. We hold therefore, that this mode of service was bad at raw. However, we are mindful of order 2 r r of the Supreme Courl Practice Rules. Such failure to comply with the rules wouid be deemed an irregularity but would not nullify the proceedings. We so hold we now come to the issue of trespass and the injunction. Trespass to land, by definition, consists of any unjustifiable intrusion by one person upon the iand in possession of anotherl; where possession means occupation or physical control2. There is no dispute that the respondent had occupied and controlled this piece of land, which is delineated in the lease hold titie. The first appellant, this notwithstanding, averred that this iand was customary land which he purchased from the second appellant. It is clear from the evidence however, that there was a period of non activity on the land which the second appellant exploited to "sell" the land. We find that the period of inactivity and the conduct by second appellant did not defeat the long and continued asseftion of title to and possession of the iand by the respondent: see Fowlev Marine (Emsworth' Ltd V Gutforcl r1968' 2OB. 618. This case ul*6ppor1s the proposition that a person in possession of land has a perfectly good title against the whole world except the rightful owner. Further that a defenclant cannot set up the title of a third party unless he himself claims under it. In the present case, as we already found, there was no dispute as to the titie of the respondent. Further, the first appellant's assertion, that he bought customary land from second appellant, cannot be sustained. First and foremost no one can sell and, therefore, buy customary land: See Javshree P.atel v Kltuze Kapeta and Kuka Holdines Ltd, civ. cause 3277 or 200i also Nic"o J. G. Komnnea V Josinon" L"ciim Commissioner for Lands, Civ. Cause 2829 of 2006. Secondif to sustain such an argument, ftom the possessory point of view, the appellants would have to show who was in possession of thatland, before the purported "sale." The second appellant did not establish that he was in possession of the land in issue before the purpofted "sale". We further note that the first appellant did not claim possessory right from any person, institution or the State. His claim was for ownership. It is our judgment therefore, that, other factors notwithstanding, the respondent's possession was not defeated and therefore they were entitled to bring the action for trespass. Our recent decision in Clrituksle Plantation Limited V Marv Woodworth und Lisneti Gremu MSCA. Civ. Appeal 68 0f 2009. further supports this. ' Clerk and Lindell on Torts, 14tl' ed, par 1 3 1 i 2 Ibid par 13 1 8 on whether or not the injunction shourd have been prohibitory or mandatory, we find that the prohititiv. lnlun.tlon ru, proper in this case. A trespasser who enters. and expels the person irr^porression cannot, without acquiescence,givehimseifpossessionat1aw:"S?"W [1944' K' B' 408' The appelianl entered upon th. lund-.ffispondent: thereon the first appellint cultivated miiz und groundnuts and was constructing permanent structures. It.was fitting and proper to restrain them fi'om entering on the land and carryingthereoi any further activities. To hold otherwise would lend the trespass some colour of right. The sratus quo in issue is that which obtained u.ro1e the appeiiu.rts ent"red on the iand and not what obtained after their wrongful entry cosrstit,i.:&ilrtffnt therefore, that this appear must fail entirely with Delivered in open court on this 2"d d,ay of Septem ber, 2010 at Blantyre. Signed: Signed: Signed: HON. JUSTICE TAMRALA SC. JA HON. JUSTICE ThVTgO SC, JA STICE TWEA. JA appeliant. Where no specific time is stipulated for any transaction prudence would dictate that the transaction be concluded within a reasonable time. What amounts to reasonable time will depend on the facts of the case, and the practice in such transactions' Indeed the transaction opened in April, 2001. The appellant deposed that he resold the property to Mr Phekani in 2005, notified the respondent in 2008 by then, in i007, the property had been transferred to a Mr Mulli by a Mr Kaiopola. The court below was of the view that such a "sale" was occasioned, first, by the delay by the appellant to effect the transfer of title, and secondly, by the default of the adjudicating officer in registering the charge. The court below found that while the adjudicating officer complied with Section 6 of the Adjudication of Title Act, that is, issuing of notice of the adjudication secrion, he failed to comply with section 16(1) (c) of the Act, to register the charge over the property that the respondent had. Is such a finding supported by the evidence.? The evidence of the respondent clearly shows that it did not register the charge on the land. According to Exhibit MM1(a), it was the adjudicati,cn officer who noted that there was default on the parl of the respondent and sent it the ciaim forms. Further, according to Exhibit MM1(b), the respondent after filling the said claim forms forwarded them to the principal Ad]udicating Officers without title deeds or copies thereof. It informed the principal Adjudicating Officer that the title deeds were with it's lawyers then, Messrs Saidi and ComPanY, and directed the Principal Adjudicating Officer to get in contact with it's lawyers directly' There was no instruction or directive to Messrs Saidi and Company on this issue' Further there was no evidence that Messrs Saidi and CornPanY, their agent, submitted or made copies of the title deeds for the Principal Adjudicating Officer of, indeed, that the respondent or Messrs Saidi and Company appeared before the Adjudicating or Records Officer in terms of Section 8 of t6. a.t to lay their claim. Further there is no evidence that, during the adjudication period or indeed after,when the notice of the completion of the exercise was published in the Gazette, the respondent or their lawyers verified the records for accuracy in terms of their interests. We find as a fact, thatthe respondent never verified the record. Had it done so it would have discovered that the charge was not recorded and would have objected or appealed within the stipulated period in accordance with Section 20 and 23 ofthe Act. We bear in mind that the adjucating exercise was tn 1992, eleven years before the sale of the land to the appellant and 15 years before a