Chilongo v Traditional Authority Chilamwera & Anor (Judicial Review 45 of 2018) [2018] MWHC 1195 (24 October 2018)

IN THE HIGH COURT OF MALA WI CIVIL DIVISION PRINCIPAL REGISTRY JUDICIAL REVIEW CASE NO. 45 OF 2018 BETWEEN AJABU JOHN CHILONGO ....... ......... .......................... CLAIMANT -AND- TRADITIONAL AUTHORITY CHILAMWERA ........... 1 ST DEFENDANT -AND- THE CHIEF EXECUTIVE OF THYOLO DISTRICT COUNCIL ............................ 2ND DEFENDANT CORAM: HON. JUSTICE J. NRIVA Counsel for the claimant Mr C Mwala Counsel for the defendants Mr N Masiku Mrs Mtegha Court Clerk RULING The claimant commenced this case seeking judicial review of the defendant's decision to commission Enock Tambela as Village Headman Chilembwe. The claimant argued that Tambela was not entitled to the position and that it was against the wishes of the people in the village. I granted the claimant permission to commence judicial review proceedings . • I also granted an interim relief of an injunction restraining the defendants from installing Mr Tambela as a Village Headman. The matter came for consideration of whether to continue with interim order. - There are sworn statements from both sides. The claimant argues that the founding of Buleki Village was in 1967 by employees of Nchima Tea Estate who were encroaching into the estate land. He said people chose Buleki as their Village Headman and chose Buleki. In other documents the name Buleki is appearing as Brake or Break. For consistency, I will use the name Buleki. The village known as Buleki Village. In 1994 the Chief removed Buleki Idana from the throne and replaced him with Phalanyenje who was from another village and renamed the village as Chilembwe. The claimant said that people kept protesting against the decision. He said that the Chief assured the people that once Village Headman Chilembwe died the village headmanship would be returned to the Buleki clan. He said that Village Headman Chilembwe died in August 2018. At that point, the Chief decided that Enock Tambela from Musowa Village would become the Village Headman. The claimant said the people of the village are protesting bringing in a person from another village to become a Village Headman and have written Traditional Authority and the District Commissioner on that issue. The Traditional Authority, said the claimant, was adamant to enthrone Enock Tambela as the new Village Headman. Traditional Authority Nchilamwera gave a sworn statement opposing the interlocutory order. He said Traditional Authority Nchilamwera IV appointed Mr Buleki as Village Headman Buleki. He said Buleki was not from royal family. The Chief handpicked him because there was no suitable person to become a Village Headman. He further said Nchilamwera married Buleki' s sister. Buleki was from Mangochi and followed his sister to Thyolo. During Buleki's Village Headmanship there were complaints to the District Commissioner that Village Headman Buleki was ill-treating his subjects. The District Commissioner called for a meeting of Traditional Authorities Bvumbwe, Chimaliro and Nchilamwera. The meeting resolved that the Village Headman should be removed. Since 1994, there was no appointment of a successor to the claimant. In - 1998, on a complaint by Buleki that he was wrongfully removed as a Chief, the meeting resolved that the village name should be changed to Chilembwe and that the TI A should appoint a new Village Headman. The defendant, therefore, argued that the claim by the claimant is statute-barred as the decision was made in 1994 and 1998. However, the claimant argued that the decision to be subject to review is not the one where he was removed as a Village Headman arguing that he had never been a Village Headman. He argues that he is against the decision not to return the chieftaincy to Buleki. Counsel for the claimant argued that there is a serious issue for trial- that Mr Tambela is not entitled to become a Village Headman. The other issue is that he is not from the village and also that he is not from the royal family. Further to that counsel argued that the installation is against the will of the people. Counsel further argued that damages would not be a sufficient remedy. Counsel argued that balance of convenience favoured stopping the installation as there has been no village headman since June, 2018 and that it would be better to maintain the status quo ( of no Village Headman) until the determination of the judicial review. Counsel for the defendants argued that Buleki was dethroned of Village Headmanship in addition to removing the headmanship from the Buleki lineage. Counsel, therefore, argues that the claimant has no claim to the headmanship. Counsel therefore argued that there was no serious question for determination as Enock Tambela was the one entitled to the village headmanship. Further village headman Chilembwe who has just died was the village headman and not one from the Buleki lineage. The Buleki lost the headmanship and the village was renamed. - The issue is whether to make continue with the order of interim relief or not. At this point, it is not for the Court to consider the dispute between the parties on merits. There are, however, issues that appear to me to be quite contentious in the matter. There are factual issues. One issue is that the Village Headmanship is no longer within the Buleki lineage. The other is that since 1994 people, according to the claimant, have been protesting the decision to dethrone Buleki. I wish not to pre-empt. The other issue is that there was a determination to return the throne back to Bulekis once a reigning Chilembwe died. I also need not pre-empt. Suffice to say that I hardly found any documentation to that effect. But as I said, this is not a point for meritorious disposal of the dispute. Courts (High Court) (Civil Procedure) Rules 2017, contain the principles under which the Court may grant an interlocutory injunction without conditions or on such conditions as the Court may deem just. The principles are (a) there must be a serious question the Court may try, (b) damages may not be an adequate remedy, and (c) it shall be just to do so. (Order 10 rule 27) . By mentioning damages as a remedy, it is likely that the rules envisaged the injunction to be in the private law domain. The private law principles applicable to applications for interim relief are modified in the context of judicial review: R v MAAF, ex parte Monsanto [1999] Q. B. 1161. As to whether there is a serious issue to be tried, the grant of permission is a starting point but it is by no means the case that interim relief will be appropriate just because permission has been granted. The adequacy of damages in unlikely to be a key issue in public law cases because breach of public law does not of itself give rise to a claim in damages. Therefore, the test of balance of convenience is likely to be the key factor when deciding whether or not to grant an interim injunction. In BACONGO v Department of the Environment of Belize (Practice Note) [2003] UKPC 63 , [2003] 1 W. L. R. 2839, per Lord Walker said the grant of an interim injunction in a public law case, courts should approach the matter on the lines - indicated in the American Cyanamid but with modifications appropriate to the public law element of the case. His Lordship went on: "the court has a wide discretion to take the course which seems most likely to produce a just result (or to put the matter less ambitiously, to minimise the ri sk of an unjust result." In the decision of the House of Lords in R v Secretary of State for Transport, ex parte Factortame Ltd (No 2) (Case C-213/89) [1991] 1 A. C. 60, Lord Goff said "It follows that, as a general rule, in cases of this kind involving the public interest, the problem cannot be solved at the first stage, and it will be necessary for the court to proceed to the second stage, concerned with the balance of convenience. Turning to the balance of convenience, it is necessary in cases in which a party is a public authority performing duties to the public that "one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed." As I said before, this is not a point to consider the dispute based on the sworn statements. I am also mindful that the issue before the Court is that of judicial review. All I have to consider is whether the balance of convenience lies in granting the interlocutory order or whether that would bring in a just result. It is not easy for me, from the sworn statements, to accurately state what would be the more convenient approach. As it is, there has been no Village Headman in the village since June. Two lineages are claiming the throne. In such circumstances, I believe, it would be more convenient that the defendants should not install another Headman until the determination of the judicial review. I, therefore, order the continuation of the interlocutory injunction until the determination of the judicial review. We should dispose off the matter as a matter of urgency. I, therefore, order that we should expedite the hearing of the judicial review. MADE this 24th day of October, 2018 j - J. N'RIVA JUDGE 5