Chitakale Plantations Ltd v Woodworth & Anor. (68 of 2009) [2010] MWSC 27 (23 June 2010)

IN THE SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL NO. 68 OF 2OO9 (Being High Court Ciuil Cause No. 3010 of 2008) BETWEEN: CI{ITAKALE PLANTATIOI{S LIMiTtrD . .... APPELLANT MARY WOODWORTH (Female) .. .. ISrRESPONDENT AND - - AND_ LISNETI GREMU (Female) ..... ...... 2"d RESPONDENT CORAM: HON. JUSTICE MSOSA, SC, JA HON. JUSTICE MTAMBO, SC, JA HON. JUSTICE TWEA, JA Kasambara, of Counsel, for the Appellant Mpaka, of Counsel, for the Respondent Mwale / Balakasi, Court Officials Ethel Matunga Chisale (Ndunya) Senior Personal Secretary JUDGMENT MTAMBO, SC, JA The circumstances, in brief, which were before the High court are these. The Appellant sought the grant of an injunction against the Respondents restraining them from entering upon the property known as chitakale and venture Estate more particularly specified in Deed No. 76ls7 dated August 04,7997 . The Appellant was portrayed as a subsidiary company of Mulli Brothers Limited, designated to take over Chitakale Estate. The Estate was, al1egedly, taken over on February 07, 2008. Following the handover a dispute arose concerning a certain piece of land which the appellant assumed formed part of the Estate, but which the respondents said did not form part thereof. The appellant, therefore, commenced the action above referred to, arguing that the land in question formed part of the Estate. The respondents disputed the claim and, in the pleadings, put the appellant to strict proof of the sarne. They averred that the land has at all material times beionged to them and their families, and that they have used it for many generations, even prior to the coming into being of the appellant or the occupation thereof by its predecessors, they contended. They averred that they used the land to grow agricultural produce and that at the time the appellant entered it there were twelve boxes of honeycombs, many acres of mustard seed, cabbage, cassava, green majze, tomato, sugar cane, rape, cocoa, beans, green paper, carrot, paw paws, pumpkins, onions and bananas. The respondents further averred that the appellant had also erected houses and a bamboo fence on the land, thereby damaged it for farming purposes. They, therefore, made a counterclaim for damages. After due consideration of the evidence which was before it, the High Court carne to the conclusion that the appellant tailed to prove that it had locus stqndi to commence or to maintain the action against the respondents and that, even if it had locus standi, it (the appellant) lailed to satisfy the court that the land in question is, or that it has always been, part of Chitakale Estate. The Court, therefore, dismissed the action. The court gave judgment for the respondents on the counterclaim. The appellant has now appealed to this court. We do not intend to consider the appeal ground by ground but rather in the manner the issues appear to us to have been raised and argued. Upon reading the record, the grounds of appeal and the skeleton arguments, and upon hearing both learned counsel, it is apparent that the appeal is essentially about maters of fact. And in the written submission, learned counsel for the appellant, quite aptly in our view, introduced his arguments thus: oThe matter before Aour Lordships is a basic one: betuteen the competing claimants, who in law has better claim for trespass lo the land in dispute. oTo ansu)er this question, my Lords, it has to be determined as to tuho was in possession of the land in issue. oDuri.ng trtal, the appellant called tuelue (12) uitnesses whereas the respondent called four (4) witnesses. oSignificantly, none of the utarring parties produced before the court anA title deeds supporting their claim. olt is not surprising therefore that none of the parties pleaded that theg u)ere the owners of the Iand in dispute. oFurther, it is common case that the appellant is in possession of the disputed land. oFurther still, the appellant is claiming to haue got free hold title whereas the respondents are claiming Iea"se hold title ouer the same land. Significantlg, theg both point to the Gouernment as the donor. o// ls common case that the appellant's predecessor has been ln possession of Chitakale Estate since either 1927 or 1933. The appeal was argued around these issues. It seems to us therefore that if this appeal is to succeed, we will have to make decisions on questions of fact contrary to those found in the High Court. The principles governing the approach of an appellate court to al appeal on fact from a judge alone are well stated in the old English cases of Coghlan V. Cumberland [1S98], 1 ch. 7O4 and The Glennibanta 119761 1 P. D. 283, which were cited with approval not alone in Bryce V. Republic, I97I - 72 ALR Mal. 65, but in many other cases. In Coghlan case the Court said" The case was not tried tuith a jury, and the appeal from the judge is not gouerned bg the rules applicable to new trials afier a trial and uerdict bg a jury. Euen uthere, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its dutg is /o rehear the case, and the Court must reconsider the materials before the judge utith suclt other materials as it maA haue decided to admit. The Court must then make up its ou)n mind, not disregarding the judgment appealed from, but carefullg weighing and considering it; and not shrinking from ouemtling it if on fut consideration the Court comes to the conclusion that the judgment is wrong. When, ds ofien happens, much turns on the relatiue credibilitU of utitnesses utho haue been examined and cross-examined before the judge, the Court ls sensible of the great aduantage he has had in seeing and hearing them. n is often uery dfficult to estimate correctly the relatiue credibility of tuitnesses from written depositions; and when the question anses which tuitness is to be belieued rather than another, and. that question turns on manner and" d.emeanour, the Court of Appeal always is, and must be, guid.ed by the impression made on the judge ,.tho seLU the utitnesses. But there maa obuiouslg be other circumstences, quite apart from manner and demeanour, tahich may shotu uthether a statement ls credible or not; and these circumstances maA utarrant the Court in differing from the judge, euen on a question of fact turning on the credibilitA of witnesses uhom the Court has not seen. And in The Glennibanta the court said: Notu we feel, as strong as did the Lords o/ the priug Council in the cases just referred to, the great uteight thot is due to the decision of a judge of first instance utheneuer, in a conflict of testimoftU , the demeanour and manner of the witnesses who haue been seen and heard bg him are, as they tuere in the cases referred to, material elements in the consideration of the truthfulness of tLteir statements. But the parties to the cause are neuertheless entitled, as utell on questions of fact as on questions of lau, to demand the decision of the Court of Appeal, and that Court cannot excuse itself from the task of ueighing conflicting euidence and drauing its oun inferences and conclusions, though it should ahaays bear in mind tlmt it has neither seen nor heard the witnesses, and should make due allowance in this respect. We will therefore in reviewing the record of the evidence bear in mind the advantage enjoyed by the High court in seeing and hearing the witnesses, and being guided by the impression made on it by them. we will not, however, hesitate to draw our own inferences and conclusions. if we should do so, but only after carefully evaluating the judgment of the Court. The evidence shows that the dispute concerning the piece of land in issue pre-dates the acquisition of Chitakale Estate by the appellant. There is evidence that the dispute had been the subject of discussion at a number of fora involving the respondents and the appellant's predecessor in possession. One such forum was the office of the District Commissioner, Mulanje. With the aid of surveyors, it was established and resolved at that forum that the land in question did not form part of the Estate. The evidence further shows that the office of the District Commissioner further advised the respondents to take steps to have the land leased to them, which they did; assuredly, it must, at that stage, have appeared to that office that the respondents were better entitled to the land than the appellant. All appears to have been well thereafter until the Estate was purchased by Mulli Brothers when the wrangle resurfaced. It seems quite clear to us that the possession of the disputed land was, and must have been, in the respondents by this time, who grew thereon various agricultural produce, which included bananas. Besides, the Court's clear finding that the Estate did not include the land in dispute strengthens the conclusion that the appellant could not have been in possession of it, the dispute about the land with the appellant's predecessor having been settled earlier than the acquisition thereof by it (the appellant). That settles the question of possession. We should now say a quick word regarding the appellant's locu s standi. It is evident that the vendor of the Estate was the Government of the Republic of Malawi. The purchaser was a firm styled Mul1i Brothers. The appellant, allegedly, was set up for the purpose of taking over the Estate; this was not proved. The High Court then observed thus: On examination of exhibit *P 2" the Asset Sale and PurcLmse Agreement itself, the partA appearing as a counterpart of the Malauti Gouernment in it, as has been pointed out by the Defendants, is clearly Mulli Brothers, without anA additional qualifi"cation to that nemq and not the Mulli Brothers Limited the Plaintiff claims to be subsidiary of. In ca"se, therefore, the Purchaser in this Agreement taas thus meant to be Mulli Brothers Limited , since the name captured in the exhibit is througLtout that of Mulli Brother simpliciter, then I tuould haue expected the Plaintiff to appreciate the need to lead euidence before the Court, explaining uthA that na.me of that Purchaser was abbreuiated, if at all, by dropping from its end the word Limited, and also explaining, if that wes the case, under what authoritg that might haue been done. The PlaintlIf, as a matter of fact, did not do ang such thing. Thus, in the face of l/s absolute silence on the matter, which ls the equiualent of the absence of ang uatid and legal explanation on the point, the onlg reasonable conclusion I must come to is that the Agreement herein u)as meant to be exactly what it purports to be, i.e. on Agreement between the Malau-ti Gouernment through the Priuatisation Commission on the one hand and the MUIIi Brothers mentioned therein on the other hand, and therefore not to be ' betueen the Gouernment and. Mutti Brothers Limited. The old cese of Salomon us Salomon, which the Defendants earlier cited, still being good law since its pronouncement, I cannot otheruise than that the Purchaser Mulli Brothers mentioned in exhibit "P 2" is a group of persons, or an entitg, that is distinct and separate from the Mulli Brothers Limited the Plaintlff claims to be a subsidiary of, and to haue acted on behalf of. Now, assuming the Assef Sate and Purchase Agreement herein is ualid, and assuming also that Chitakale Estate was indeed bought by the MuIIi Brothers who are parties to the Agreement, if we go bg the assertion that instead it is Mulli Brothers Limited rather than the correct purchasers, that designated the Plaintiff to take ouer tlrc Estate, then we immediatelg face the quesllons at whqt point and how did Mulli Brothers Limited, as a" stranger to the transaction in question, get the authoritA to meddle into matters it utas not concerned uith, by euen delegating tuho should receiue the purchased Estate. CertainlU, in fhis case the Plaintiff did not lead any euidence as to whether at some point Mulli Brothers either further sold or otheruise assigned Cltitakale Estate to Mulli brothers Ltmited, for it to acquire the mandate to designate the Plaintiff to take ouer the Estate in question. If, therefore, the Estate was bought bg Mulli Brothers as exhibit "P 2" indicates was meant to be the case, then Mulli Brothers Limited could not haue had the authoritg to designate a diJferent Compang, Iike the Plaintffi to take ouer the same. In the absence, therefore, of euidence showing that the Plaintiff was designated by the Purchaser named in exhibit . P 2" to take ouer the Estate, the a.uerrnent that the Plaintiff is linked to the Assef Sale and htrchase Agreement througLt MUIIi Brothers Limited does not make anA legal sense, as both that Compang and the PlaintiJf itself are cleartg third parties to that instrument. The Court then came to the conclusion: I must candidlg seU, therefore, that on a. strict understanding of Compang Law, in terms of the distinction betuteen natural and juristic persons, and also on a- strict understanding of the doctrine of priuitg in the Lana of Contra.ct, the truth of the matter in this case is that the PlaintiJf has failed to establish that it has ang right to bring this Action. In other words, it has failed to show that it has ang loctts standi in this matter. on this technical score, tlrcrefore, I am quite entitled to dismiss the Plaintiffs matter herein purelg as one lodged in Court bA a total stranger. We are unable to find fault with this analysis of the law and the conclusion the Court came to. Both the analvsis of the law and the conclusions are correct. We now refer to the counterclaim. We bear in mind that a counterclaim is in itself a distinct cause of action with distinct facts on which the action is founded. It is, therefore, an action which may stand regardless of the result of the action commenced in the statement of claim, including the result that the plaintiff lacked loctts standi in the action. The respondents alleged in the counterclaim that the appellant is a trespasser to their land and claimed damages arising therefrom. And after evaluating all the evidence, the Court said: What is puzzling is the fact that nottuithstanding the Plaintiff not hauing locus sto;ndi in the matte6 or its neglect of a conclusion against its predecessor bg releuant expert Departments on the outnership of the disputed land, or the fact that it took on the liabilitg of suing on tltis liabilitg contrary to guidance in the Asse/ Sale and Purchase Agreement, hauing decided to challenge the Defendants, the Plaintiff u)a.s so emotional in the assertion of the title it was claiming to the land in dispute. Thus, although it was a neu) comer on the scene, it ls clear from testimony giuen bg the Defendants that it fett so ighteous in uhat it chose to do as if to sag that it knew better than all its predecessors on the matter. Hauing refused to confine itself to operating within the arena of the Asse/ SaIe and Purchase Agreement, it further threw all caution to utind taLten it unilaterallu looked doutn on the protestations of the Defendants and brushed them aside. The Plaintiff, it is clear, euen accorded itself the arrogance not euen to recognize what gaue the Defendants the coura.ge to grow some crops on the disputed land. Hauing taken up this suit, uhich it could haue auoided, it still went ahead to barricade the disputed land from the Defendants witLt o bamboo fence. It also went ahead fo so disregard the Defendants as not euen giue them opportunity to haruest what theg had cultiuated or to handouer the produce it either itself haruested or destroyed on that land. Besides, it euen utent ahead and buitd four permanent residential structures on the land, as if the matter had alreadg been resolued bg a judgment in i/s fauour. In mg judgment, tLtis conduct of tLrc Plaintiff ouer the dispute, uhich existed before the Plainttff and its parent Compang got associated utith Chitakale Estate, if theg at all did, was ouerly confident for a neu)comer into the problem. I am conuinced that it was also needlessly callous and offensiue to the Defendants, utho were on the receiuing end of the same. I haue no doubt on the euidence from the defence side the behauiour the Plaintiff displaged against them u)as disgraceful and thoroughly demeaning to them. Indeed what it did and the manner in uthich it did it suggest some highhandedness on ifs part and basicallg the taking of the Lau into the Plaintiffs ou)n hands in the style it opted to treat the Defendants. CIearIy, therefore, the Plaintiff occasioned to the Defendants untold loss and misery. I am accordinglg satisfied that the Plaintiff's entry on the land on uthich the Defendant had crops whicLt entry it managed with strong hand and show of force, in terms of the requirements of the Law on trespass, as ably submitted on bg learned Counsel for both sides, t0 entitled the Defendants to sue for trespass, especiallg considering that as from 22"d MoA, 2006 (exhibit oD 2') both the Defendants and the Plaintiff's predecessors were fuIIU made anDare that the Defendants lmd possesslon and ocanpation of the land in dispute, and that Chitakale Estate should stop using the land. The Court therefore was of the view that the counterclaim was made out and, accordingly, entered judgment for the respondents. We have ourselves subjected the evidence to a careful scruiting and, again, are unable to find fault with the analysis of the law and the conclusion the High Court came to. Both the analysis of the law and conclusion are correct on the evidence which was before the Court. A11 in all we dismiss the appeal with costs. DELIVERED in open Court this 24th day of June 2010 at Blantyre. Sigrred: HON. JUSTICE A. S. MSOAS, SC, JA Signed: HON , sc, JA Signed: HON. STICE E. B. TWEA, JA t1