Chinthuta v Dista (Land Cause 200 of 2022) [2022] MWHCCiv 50 (24 November 2022)

- GWH; Chinthuta v, Senior G,V. H. Misindo Dista co Kenyatta lyirenda, J a IN THE HIGH COURT OF MALAWI. ae LILONGWE DISTRICT REGISTRY (CIVIL DIVISION) LAND CAUSE NO. 200 OF 2022 (Before Honour able Justice Kenyatta Nyirenda) BETWEEN G,V. H. CHINTHUTA (On his own behalf and on behalf of the inhabitants of CHINTHUTA VILLAGE) ......660008 CLAIMANT AND SENIOR G. V. H MTSINDO DISTA (On his own behalf and on behalf of the inhabitants of MTSINDO VILLAGE ......,...... DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr, Mwawa, Counsel for the Claimant Mr, Harawa, Counsel for the Defendant Mrs, A, Mtenje, Court Clerk RULING Kenyatta Nyirenda, J This is my Ruling on an i inter-par tes application by the Claimants for an order of inter locutory injunction restraining “the Defendants either by themselves, agents, servants or any person acting on their behalf jrom trespassing or continue to trespass or otherwise encroach on or interfering with the Claimants possession and ownership or conducting any dealings in respect of the piece of _. land measuring approximately 10 Aeres situated at Chinthuta Village, Traditional ~ Authority Khongoni in the district of Lilongwe or harassing or issuing threats of violence ~ against the Claimants unit determination of the matter herein or until a further ar rer of the Court,” 5 - - The application ! is supported by the following statenient, sworn by the Claimant: “2. lam Group Village Headman Chinthuta. Now produced and exhibited hereto is a copy of Local Government Identity Card marked Exhibit AC a 1 i “GV. H. Chinthuta v, Senior G. V. H, Misindo Dieta oe | mo i ih Fata amorig 2 Hie Clavius in this m matter dina as s such Ia am 4 diddy competent this stalément whose contéents dre per ‘sonally known (oh ine by virtue af my persona inowledge, information and belief. cae a iE am suing On may own behalf and on betlfof aft the inhabitants sap the fen n(l ? illag of the following Village Headmen: - a b ¢ d, e. f & H 4 Village Hecrcltian Chinthuta (bern Laines Batsi) Village Headman Kanyoni (born Bester Kagwa) Village Headman Chimchira (born Chrifold Kafotse) Village Headman Ndelea (born Nyamayakanga Lalton) Village Headman Kakopa (born Pute Zakeya) Village Headman Stefano (born Yosefe Foster) Village Headman Jolofani (bora Mphatso Mbewe) Village Headman Chimbalanga (Kaikeni Kamtsitsi) Village Headman Mchiriko (born Jedede Jilimeni) Village Headman Kafiwa (born Hardson Chiluzi) - 3: The Defendant is being sued on his own behalf and on behalf of inhabitants of Senior Group Village Headman Mtsindo Ditsa and some of the Village Headmen and inhabitants are as follows: rea eS Rar poe or Village Headman Misindo Ditsa (born Lackson Kamzimbi) Village Headman Tinjate (born Kingsley Mtumpha) Vilage Headman Mtikemola (born Matigetita Chinyama) Village Headman Mbulu (born James Maliseni} Dryson Ponde (Encroacher} Jovati Yamikani {Eneroacher) Mphatso Chazama (Encroacher Nasimelo Gollati (Eneroacher) Nasoweka Limbikani (Encroacher) Emily Tilimoni (Encroacher) James Vula (Encroacher) 6. Our ancestors or forefathers started to stay at Chinthuta Village, T/A Khongoni in the district of Lilongwe since around 1836, 7. Many generations have inherited and peacefully cultivated on their respective piece af gardens/lands/dimba and or enjoyed possession and ownership of the same which in total approximately measures 10 Acres situated at Chinthuta Village T/a Khongoni in the district of Lilongwe without any interferences. &, Our villages and the villages of the defendants are demarcated by a stream/dambo known as Nyang'aimire. 9, Over the years we have been cultivating and enjoying peaceful possession and ‘ ownership of our respective pieces of lands/dimba without any sort of interference - until 2004 when inhabitants of the Defendants crossed Nyang’amire stream and. “ Chinthuta v. Senior G. V. H. Mtsinido Dista ach a id trespass On our respective - * endvouched ov trespassed or continue to’ encro nsent or licence. “- pleces of land/dimba,without our cons We repeat paragray -- coniplalnt at the traditional court of Senior Groi man Misinda - Further the Court challenged is that e en if we take the maiter to any lraditi court, diylhing will not change because he is always part of such courts, “LL We have always irled to seek help from the traditional courts tinder the jurisdiction os af T/A Khongoni but to no avail. _ 12. We were surprised further that instead of finalizing the matter, in or around 2021 one Ndelea Siveliyano, under the jurisdiction of the Defendants, approached Village Headman Kanyoni and Villageman Chimchira claiming adverse possession and or ownership of the lands/dimba in question. He was sent back on the basis that the matter is yet to be disposed of and further that he should inform his chiefs. 13. After realizing that there is no any communication from the Defendants, Village Headman Kanyont, Village Headman Chimchira and Village Headman Ndelea made a follow up with the Village Headman Mtsindo Diisa who recommended that we should all visit the land Ndelea Siveliyano was claiming adverse possession and or ownership, 14. On the day of the scene visit all the parties agreed that pieces of lands/dimba in issue belonged to one of our forefather in the name af Chilowa Chinthuta, Further the parties agreed that indeed Nyang’amire stream is the boundary of the villages under Group Village Headman Chinthuta and Senior Group Village Headman Misindo Ditsa. Accordingly we planted Senjere to mark the boundary. 15, As we thought that the matter has been finalized, we were very surprised to be summoned at Traditional Authority Khongoni traditional court on allegations that we have grabbed the pieces of land/dimba of the inhabitants of Village Headman Mtikomola and others under the jurisdiction of Senior Group Village Headman | Mtsindo Ditsa. 16. On the 11" day of May 2022 both parties presented their story however we were denied to ask the Defendants herein any question, According to T/A Khongoni ‘s traditional court, the matter was adjudicated what remained was visiting the disputed land. 17. Onthe 29" day of July 2022 the traditional court of Traditional Authority Khongoni ruled that the Defendants should still be cultivating on our pleces of land/dimba despite the fact that the same does not belong to them, 18 ~~ We repeat pavagtaph 17 of this Sworn Statement and aver that we have consistently - requested fora written ruling but the same has not been given to us. OL. 22, 23, 24, 25, 26, Oe 2 : GVH, Chinthuta v. Senor G. V. H. Mtsinde bist 0.. In the owist of «decision or ruling. Further, several times we hai Authority Khongoni that we the. traditional. court of Tédditional Author We suspect that the whole process is fishy and justice is not being done hence thé. present application. Pe The conduct of the Defendants tantamount to unlawful possession of. our respective customary pieces of land/dimba and is bringing embarrassment to us and is an infringement to our constitutional rights to property, economic activity and development therefore ought to be stopped by this court. The conduet of the Defendants will subject us to hardships and need to be stopped by the Court. We have cultivated on the said pieces of land and the same is our only source of income. As law abiding citizens we have thought it wise that we should seek the indulgence of the court as this is the only forum we trust justice can be done, Further by issuing these summons we do noi want to be involved in any violence with the Defendants. There is now fear that if not stopped the Defendants may grab the land using unlawful means thereby violating our constitutional right to own properly. We undertake to pay any attendant damages, if any, tn the unlikely event that the court grants an injunction herein having suppressed material facts or on wrong principles of law,” The Defendants are opposed to application and they rely on a sworn statement by the 1" Defendant which states as follows: “), THAL I refer to paragraphs 1, 1, 3, and 4 of the Claimants sworn statement and admit its contents. THAT I refer to paragraph § of the Claimants Sworn statement and admit part of its contents but deny the allegation that my relatives who have been listed from paragraph 5(f) to S(m) are encroachers. THAT I refer to paragraph 6 of the Claimants Sworn statement and admit the contents thereof. THAL I refer to paragraph 7 of the Claimants sworn statement and state that I do’ not know if thé Claimant's land/dimba is 10 acres, because I have not taken any. efforts to measure their dimba land. ‘G MAM Chinthuta Vv. Senior G. Vv. H. . Nitsindo Dista ta . - . . : : - _ Kenyatta Nylrenda, THAT I refer Io pat dig raph 8 oft the Claimants swor a 1 statement and adini contents. nn pes ; Ohi ey - 4 from their ancestor's who: started ‘using this land/dimba in 1809, an G encroached on any land. be tered 8 THAT Irefer to paragraph 10 and 11 of the Claimants Sworn statement and deny’. its contents, The Claimants have never lodged a complaint before me Senior Group: : Village Headman Mtsindo Didza. 9. THAT I refer to paragraph 12 of the Claimants Sworn Statement and deny its contents. Ndeleya Siveliyano is a grandchild to the Claimants because Ndeleya's father comes from Chinthuta Village, but his mother comes from my Village. Ndeleya’s father Sivele was given land by Chilowa when he transported Chilowa’s belongings using an oxcart, and Ndeleya Siveliya went to claim for this land from Village Headman Kanyoni. 10, THAT I refer to paragraph 13 and 14 of the Claimants Sworn Statement and admit part of the contents but denies that the Senjere was planted in the boundaries, The parties did not all agree on the boundaries and the actual place where the Senjere was to be planted. fl, YHAT I refer to paragr aph 1S of the Claimants Sworn Statement and admits its contenis. , 12, THAT J refer-to paragraph 16 and 17, of the Clalmants Sworn Statement and admits part of the contents but denies thai T/A Khongoni ruled we should be cultivating on the Claimants land. We were ordered that everyone should be cultivating where they were cultivating together with their parents. Find attached an exhibit marked “ALK 1” 13. THAT I refer to paragraphs £8, 19, 20 and 21 of the Claimanis Sworn Statement and make no comment. - ld. THAT I refer to paragraphs 22, 23 and 24 of the Claimants Sworn Statement and deny iis contents and state that everyone is cultivating on their land and no one has encroached on the Claimants land/dimba.” An interlocutory injunction is a temporary and exceptional remedy which is’ available before the rights of the parties have been finally determined. Order 10, r. 27, of the CPR provides that a court may grant an injunction by an interlocutory .. ‘order when it appears to the court that (a) there is a serious question to be tr ied, (by. damages may | not be an adequate remedy and (c) it shall be just to do so. me B 7 G, v. H. hinthuta V, Senior 6 aN. he Mitsindo Dita - emerging from claims of land are are not consider ed as an adeq ate reme of the unique value that every piece of land has to its owner. In the case ‘of Mulipa - : - . vy. Mr, & Mrs. Bibiyani and others unknown, HC/PR Land Cause No, 105 of - 2016, Justice Tembo put the point in the following words: “What the Court wishes to observe is that land is inherently unique and therefore damages are not an adequate remedy where the same is dealt with adversely, Therefore, the issue on adequacy of damages is ordinarily out of the question in relation to application for _ injunction in relation to land. See Nanguwo v Tembenu and another civil cause number 451 of 2013 (High Court) (unreported)” The law also requires that where all other factors in considering the balance of convenience are evenly balanced, it is counsel of prudence to take such measures as are calculated to preserve status quo: see Henry Malista & Others v. Village Headman Sakhama (Enock Mututu), Civil Cause No, 66 of 2018. The status quo has been held to be state of affairs existing before the Defendant started the conduct complained of unless there has been unreasonable delay where it is state of affairs immediately before the application (Candlex Limited v Katsonga (supra)). In many cases, prompt action may mean that the preservation of the status quo favours the claimant as the defendant’s activities are still in the preliminary stage. Conversely, if the defendant has proceeded a long way, he or she may be able to claim that preservation of the status quo involves allowing him or her to continue his or her act, However, in the case of Shephard Homes Limited v. Sandham (1971) Ch. 340, it was stated that a defendant who has rushed on his or her work in order to, defeat the claimant’s attempts to stop him or her will not have his or her status quo preserved with the blessings of the court. The first point to consider in the present case has to do with the status quo ante to maintain. By the Claimant’s own admission, the complained acts begun in 2004: see paragraph 9 of the sworn statement by the Claimant, The status quo to maintain, therefore, is to leave the Defendants in possession until the matter is determined. The related question is whether this status. tus quo is a just one. To my mind, it is, patticularly because maintaining the status quo does fot determine the title or firially: dispose of the matter of title as between the parties, : coe Gv. Hl: | chnthute Setilor G. V. Ih view. OE the j repoing, t until the main. case herein i ‘is oh me _Brosouneed i in: | Chamber on - Repuolic of Malawi. ~ Kenyatta Nyirend | a JUDGE DGE © |