Mithi v Chikhasu & Ors. (Misc. Civil Cause 72 of 2016) [2017] MWHC 814 (31 March 2017)

Clifford Mithi v Gerold Chikhosu and 11 Others Miscelloneous Civil Couse No. 72 of 201 6 IN THE HIGH COURT OF MALAWI MZUZU REGiSTRY: CIVIL DIVISION/ MISCELLANEOUS CIVIL CAUSE NO. 72 of 2016 Clifford Mithi ...... ....... .. ... ... .. . ...... ... ..... .. .. ... .... .. ... Applicant Between -and- Gerald Chikhasu .. . .. : ... ... .. ....... ... ............. .. .. . ..... 1st Responden t Len neck Chikhasu .... .. .... ..... ... .. .... ..... . ... .. . ... ... .. . 2nd Respondent Dalitso Chikhasu . . . . . . . . . . . . . . . . . . . .. .. . . . . .. . . . . . . .. . . .. . . 3 rd Respondent Thom Chawala ......... ... ..... .. ... · ..... ....... .. .. ..... .. : .... 4th Respondent Isaac Chikhasu .... .......... -.. . : .·.: ...... . : ...... . .. .... .... ... 5th Respondent Jossam Chikhasu .. .. ..... ............ ....... ... : .... ... ........ 5th Respondent 7th-'.'. Respondent ~1·1 as c···h·1·k·····h2 c-··,r·:· · ... · .. .. .: -'-,-. . . . .... . ..... .. .. . ... . . .... . ......... . . . . . .... . . . . \ .. . . Joel Chikhasu .. .... ... .. . .. . .. . .. .. ....... . ....... .. .. . .. ... .... gth Respondent Lucy Chikhasu .... .. .... ............. .. .. ..... .. ... .. ... .. ... ... 9th Respondent Vutani Chirwa ... ..... . ....... ... ....... .... ....... ....... . ... ... 1 Qth Respondent Kennedy Nyama ............. .. ... ... ... .......... ....... .. .. .. 11th Respondent Yamikan i Saidi .... ..... ...... ...... ... ... ... ....... .... . ... .. .. 121h Respondent RULING ON COMMITTAL Brief Background - By way of originating summons the applicant commenced these proceedings claiming that a 7 hectare parcel of customary land situated at Banga in the area of Senior Chief Kanyenda in Nkhotakota District belongs to him and his fami ly , and that the respondents were trespassing on the same. Before the originating summons were heard, the applicant applied in ter partes for an interlocutory injunction pursuant to 029 r 1 of the RSC. Following and inter partes hearing , the - Clifford /Vli thi v Gerold Chikhosu an d 11 Others Miscellaneous Civil Couse No. 72 of 2016 interlocutory injunction was granted on sth August 2016, restraining the respondents and their agents from harvesting sugarcane, encroaching or trespassing on the said land. The injunction was valid for a period of 21 days from the date the order was made. The applicant was also ordered to apply for inter partes summons to extend the validity of the order within 7 days . The applicant then applied for an ex parte summons for leave to apply for an order of committal under 052 r 2 of the RSC on 12th August 2016 , w hich leave was granted on gth September 2016 . The motion for committal was partly heard . on 171h November 2016 and the applicant was req uested to provide better particulars of the offending actions of the respondents, bearing in mind that the interlocutory injunction was for 21 days only. This is now the continued hearing following the filing of sL· .,plementary affidavits with the specific details. The hearing The applicant svvore a sur:--leme1 :>·y affioov:: 1,, .::upport and also fi led skeleton ui~ume1 ,;_, :1, 0ufJfJUil or the committal oroc1. 1n 111s affidavit, the api-,"cant states that the 1st, 2nd, 3rd , 4th and 11 th responucnts ·~0 spassed and harv0 sted sugarcane contrary to the it1Junctive order for a period 01 : : :lay;.. fro1, . rip 711 • 1... August 2016. This assertion is supported by the affidavit sworn in support by Tamara Mithi. Both these affidavits were served on the legal counsel for the respondents who ackr. ::· .. :,..,r1: ar1 c::prvice . The respondents did not file any aff:c.;,\/:~s ii, opposition of the committal proceeding but at the hearing adopted the affidavit in opposition to the originating summons and the skeleton arguments in opposition of the originating summons. The respondent counsel prayed that the committal proceedings be dismissed as they lacked clarity and specific information bearing in mind that a committal order leads to persons losing their liberty. He further stated that there was no valid injunction as the order of injunction had expired after 21 days. Counsel for the respond ent stated that they were ready to have the originating summons heard but the applicants were not making any efforts to prosecute the matter. In response Counsel for the applicant stated that all documents for the main matter were filed in cou rt but no date had been granted fo r a hearing by the court. - Clifford Mithi v Gerold Chikhosu and 11 Others Miscellaneous Civil Couse No. 72 of 2016 He also stated that the committal was related to the actions of the specified respondents tha t occurred while the injunction wa s in force . Discussion When a court order is disobeyed, the court has powers to punish the person or persons who have acted in contempt of the said court order. This is essenti al because court orders have to be obeyed in full , unless and until they are varied by the court or overturned by a superior court. The law requires that the facts wh ich are being relied on to prove contempt of court must be proved by th e applicant on the highest standa rd of proof, wh ich is proof beyond reas onable doubt. There also must be a demonstration of mens rea by the persons acting in contempt of court. I am satisfied that the applicant has clearly provided proof beyond reasonable doubt regarding the nature of the disobedience. The 1st, 2nd, 3rd , 4th and 111h respondents intended to disobey the court order wh ich was issued on 5 ih Au gust 2016 . They intended to harvest the sugarcane and sell the same as soon as they had the opportunity and they did so for a period of 10 days from the 7th day of August 2016, barely 2 days after the order of injunction w as granted . The respondents were aware that there was an injunction which was in effect for 21 days. The particular respondents are named as Gerald Chikhasu , Lenneck Chikhasu , Oalitso Chikhasu , Thom Chawala and Ke nnedy Nyama. I fin d that the respondents' actions have been proved beyond reasonab le doubt to be in contempt of a court order. Having found them guilty of contempt of cou rt, I am aware that the Court has powers to imprison , impose a fine or take security for good behaviour. In exercising my discretion , I will not commit the respondents to prison bearing in mind that the originating summons has to be heard and determined. I w ill therefore impose a fine which ought to be paid immediately. Failu re to pay the fin e will lead to serving a prison sentence. - Clifford Mithi v Gerald Chikh asu and 11 Oth ers Misc;llaneaus Civil Couse No. 72 of 2016 ORDER It is ordered as follows 1. That the respondents who went and cut sugarcane on 7th August 2016 , thereby acting contrary to an order of injunction granted by this court on 5th August 2016 be fined the sum of MK150,000 each, which fine has to be paid within 7 days of this order. These are 1st Respondent Gerald Chikhasu, 2nd Respondent Lenneck Chikhasu , 3rd Respondent Dalitso Chikhasu, 4th Respondent Thom Chiwala and 111 h Respondent Kennedy Nyama. Failure to pay the fine will result in imprisonment for a period of 3 months for each one of the respondents . 2. That the sugarcane that was harvested be assessed before the Registrar within 7 days and the value of the harvested sugarcane be paid into court . 3. That the originating summons is set for hearing on sth April 2017 at 2:00pm Made in Chan,.., ..... _ at f.'lzuzu Registry this 31st day of March 20 17 - JUDGE 4