Luka v Mandala (Civil Appeal 16 of 2022) [2024] MWHCCiv 9 (15 July 2024)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION CIVIL APPEAL NUMBER 16 OF 2022 (Being civil cause number 99 of 2017 before the Second Grade Magistrate Court sitting at Thyolo) BETWEEN ESTA LUKA APPELLANT AND DOROTHY MANDALA RESPONDENT CORAM: JUSTICE M. A. TEMBO, Mlauzi, Counsel for the Appellant Masumba, Counsel for the Respondent Makhambera, Official Court Interpreter JUDGMENT 1. This 1s the decision of this Court on the appellants’ appeal against the decision of the Second Grade Magistrate Court sitting at Thyolo by which the lower court dismissed the appellant’s claim to a piece of customary land that is in the possession of the respondent. The respondent contested the appeal. 2. The respondent had commenced civil proceedings before the lower court claiming that the respondent was unlawfully in possession of a piece of land in issue in the present matter which she said belonged to the appellant’s grandparents. 3. The facts before the lower court are in dispute. On the one hand, the appellant’s case was that she is not related to the respondent. And that the respondent is clinging on to the land in dispute which belongs to the appellant’s grandparents. She indicated that her grandmother was given this land by the Government and used it with her son Mandala, who is the appellant’s uncle. She indicated that Mandala, her uncle, married a woman from around their area with whom he had a child, the father of the respondent herein. Further, that Mandala also married another woman from the lower Shire with whom he had a son. She indicated that Mandala died and left the lower Shire wife and the son. And that the son from the Lower Shire wife was allocated the land in dispute after the Lower Shire wife had sued the appellant’s clan before the local authorities. She stated that later the wife departed for the Lower Shire and left the son. She indicated that the son from the Lower Shire wife used the land, allocated to him at the direction of the local authorities, and did so with the assistance of the respondent’s father. She indicated that the son from the lower Shire wife died and that the respondent’s father proposed that he cultivate on the land to raise money to build a tombstone for the deceased son from the lower Shire wife. And that due to poor harvest, for over five years, the proposed tombstone could not be built. The appellant asserted that the defendant’s father died and that the respondent is clinging on to this land. She asserted that the respondent has land belonging to her father. 4. On the other hand, the case of the respondent was that she is also not related to the appellant. She denied the appellant’s claim that she was clinging to land belonging to the appellant’s clan. She asserted that the land in issue belongs to her late father. She indicated that her late father was not given this land by his father, her grandfather, but that he got this land after he had complained to the Village Headman who shared the land. The claimant’s witness, a Village headman from the area, indicated that Traditional Authority Changata resolved the issue herein in 1986 when he shared the land to the appellant’s clan and to the respondent’s father. The Village Headman stated that the 2 respondent’s father started using the land in dispute herein before 1987, that is when the Village Headman took office. . The respondent asserted that when she was born in 1982 she found her father already using this land. She added that no one from the appellant’s clan raised the claim herein when her father was alive. She noted that by the time of the trial before the court below she had been using the land for eight years and also for some years during the life her late father. And that the appellant only raised the claim herein in June in the same year when her father had earlier died in February. . After the trial, the lower court made its decision in favour of the respondent. The lower court concluded that the appellant’s claim was barred by the Limitation Act, which provides that the claim to title to land shall lapse after twelve years of uninterrupted possession by anyone asserting an adverse interest in the land. See section 6 of the Limitation Act which limits claims to interest in land to twelve years of accrual of the cause of action. . The lower court also noted that the appellant’s claim was not credible since she never raised the claim during the life of the respondent’s father during which the respondent also used the same land and only raised the claim after the death of the respondent’s father. It noted that the appellant had never used this land prior to raising her claim. . The lower court also noted that according to section 17 (1) of the Deceased Estates (Wills, Inheritance and Protection) Act upon intestacy it is the immediate family that is entitled to inherit property of the deceased. It noted that immediate family is defined as spouse and children of the deceased and also parents and dependents below 18 years. The lower court observed that the appellant was not an immediate family member of the respondent’s father and could not lay a claim to the land herein. . Being dissatisfied with the lower court decision, the appellant appealed against the lower court decision asserting three grounds of appeal, namely: 1. The lower court erred in law when it held that the land in dispute belongs to the respondent, which is contrary to land inheritance under customary law. 2. The lower court erred in law when it applied the Limitation Act to customary land when in essence the Limitation Act does not apply to customary land. 3. The lower court erred in law and fact when it made a determination based on the Deceased Estate (Wills, Inheritance and Protection) Act when the same was not applicable in this matter. 10. On hearing civil appeals, this Court has the following powers as provided in section 22 of the Courts Act: In a civil appeal the High Court shall have power— (a) to dismiss the appeal; (b) to reverse a judgment upon a preliminary point and, on such reversal, to remit the case to the subordinate court against whose judgment the appeal is made, with directions to proceed to determine the case on its merits; (c) to resettle issues and finally to determine a case, notwithstanding that the judgment of the subordinate court against which the appeal is made has proceeded wholly on some ground other than that on which the High Court proceeds; (d) to call additional evidence or to direct the subordinate court against whose judgment the appeal is made, or any other subordinate court, to take additional evidence; (e) tomake any amendment or any consequential or incidental order that may be just and proper; (f) to confirm, reverse or vary the judgment against which the appeal is made; (g) to order that a judgment shall be set aside and a new trial be had; (h) to make such order as to costs in the High Court and in the subordinate court as may be just. 11. The appeal is by way of rehearing. That means this Court will subject the evidence before the lower court to a fresh scrutiny. 12. This Court wishes to quickly deal with the second ground of appeal by which the appellant charges that the lower court erred in law when it applied the Limitation Act to customary land when in essence the Limitation Act does not apply to customary land. 13. This Court noted the arguments by the parties as to whether the Limitation Act is applicable herein or not. At the hearing of the appeal, it was clear that the parties were in agreement that the Limitation Act does not apply to customary land claims. The customary law of the area in which the land is located will have to be adduced and be proved on the point as required under section 64 of the Courts Act to guide the court on how long it takes for land to be taken over by adverse use or to show that the claim to the land is barred due to passage of time. See Ngoma (Suing as Administrator of the Estate of Kaufulu Ngoma-deceased) v Ngoma Civil Appeal Number 14 of 2013 (High Court)(unreported) and Chimphepo and another v Kachiza Civil Appeal Number 30 of 2015 (High Court)(unreported). The second ground of appeal therefore succeeds. 14. This Court will next deal with the remaining two grounds of appeal number 1 and 2 as they are so closely related. The question to be answered in relation to these two grounds of appeal is this: which regime of law applies on succession regarding the customary land herein. Is it the customary law regime or the Deceased Estate (Wills, Inheritance and Protection) Act? 15. The appellant contends that customary law must apply on succession herein and that the respondent was supposed to inherit land at the place where her mother comes from and not at the place where her father came from where the land in dispute is located. The appellant contended as such because the area where the land in question is located is governed by the matrilineal system of land use at customary law. This entails that children have land nghts at their mother’s and not at their father’s place. On the contrary, the respondent contended that the lower court properly followed the statute on succession namely, the Deceased Estate (Wills, Inheritance and Protection) Act which provides in section 4 that: Except as provided for in this Act, no person shall be entitled under customary law or any other written law to take by inheritance any of the property to which a deceased person was entitled at the date of his or her death. 16. It is clear that section 4 of the Deceased Estate (Wills, Inheritance and Protection) Act allows succession only by following the said Act and bars succession following customary law or any other written law except to the extent allowed by the Act itself. 17. As far as the rights to customary land are concerned, the same are now recognized by statute as a customary estate that is indefinite, inheritable and transmittable by will. Citizens or families of citizens, among other, can hold such customary estates. See section 20 of the Customary Land Act. 18. Even before the Customary Land Act came into force in 2016 to explicitly provide for customary land estate, when the title to customary land was vested in the President for the benefit of Malawians, a person or a family had property rights in customary land which they could nevertheless dispose of by sale or otherwise. See Mervis Chirwa v Faizer Farm and Dickson Pwelenji MSCA Civil Appeal number | of 2016 (MSCA). 19. As submitted by the respondent, the relevant law on succession to customary land is therefore the Deceased Estate (Wills, Inheritance and Protection) Act. See Banuel v Kachikondo and others Civil Appeal Number 34 of 2016 (High Court) (unreported). 20. On the facts, it is clear to this Court that the lower court was properly persuaded to the requisite standard that the land herein was allocated to the father of the respondent as per the evidence of the respondent which was well supported by the evidence of the Village Headman. The respondent’s father used this land since before 1987. The respondent also used the land herein during some years during the life of her father. The appellant or her clan never had use of the land herein to entitle them claim the same on the demise of the father of the respondent. In short, the evidence shows persuasively that the land herein belonged to the respondent’s father and his heir the respondent was duly entitled to inherit the same as opposed to the mbumba or clan of the appellant. 21. The lower court therefore properly applied the customary law in terms of verifying ownership of the land herein during the life of the respondent’s father and found that the land was not for the mbumba or family of the appellant. The lower court thereafter correctly followed the Deceased Estate (Wills, Inheritance and Protection) Act to ensure that on succession to the land herein the immediate family member of the deceased owner of the customary land kept her inheritance. The first and third grounds of appeal advanced by the appellant therefore fail respectively and the respondent’s arguments in that regard prevail. In the final analysis, the appellant’s appeal fails. 22. Costs follow the event and shall be for the respondent. Made in open court at Blantyre this 15" July, 2024. M. A. Tembo JUDGE