Gondwe v Chihana & Trust (Civil Cause 106 of 2014) [2022] MWHC 204 (14 February 2022)

5 22 REPUBLIC OF MALAWI ~ INTHE HIGH COURT OF MALAWL “LILONGWE DISTRICT REGISTRY CIVIL CAUSE NUMBER 106 OF 2014 BETWEEN: LOVENESS GONDWEuccscsscsrescerecsseeneersersen ee ren sete resin ca sh g neg eene nee Ore L er roan CLAIMANT -AND- YEREMIAH CHIBANA... ES DEFENDANT VIRAWU TRUST... eee eres Pee UU ED DeREEEEE EEG E EOE EEE EE DEL CELED SEED CREDITS 1288 DEF: TENDANT CORUM: HONOURABLE JUSTICE RUTH CRINANGWA Chatupa Counsel for the Claimant Katundu Counsel for the Defendant Khan Court Interpreter JUDGEMENT Introduction 1. The claimant seeks the following reliefs: |.1 Declaration that the Registration of the transfer of lease for title Number Jombo 7/8. City of Mzuzu in favour of Vikawu Trust from Y. Chibana and Loveness Gondwe ‘s null and void on account that it was obtained or made fraudulently; +2 An order that the Registration of transfer of lease with respect to Title Number Jombo 7/8, City of Mzuzu be cancelled in that it was obtained by fraud; +3 An order of rectification of the register by directing that the registration of the transfer of lease for Title Number Jombo 7/8, City of Mzuzu be cancelled on account of the fact that the said registration had been obtained or made by fraud in terms of section 139 of the Registered Land Act; 1.4 A declaration that the Registration of Title Number Jombo 7/8, City of Mzuzu from Y. Chihana and Loveness Gondwe to Vikawu Trust violets the plaintiff's constitutionally protected right to own property and te economic activity, 15 An oid for costs, , 2 The defendants opposed the re fs s sought.” he claimant and " deferidant y were the, two . “witnesses in ‘this matter. The evidence in chief was ‘br resented | in thei 2 statemeiits follovied by oral cross “examination and re- ‘examination. oS The Byidenee, T he claimants ¥ witries t reads as s follow 4, I The st Defendant is my husband, arr os 3.2 [have served as Mem ber of Patllainent for 10 years: é: Deputy Speaker of Parliament; oe a member of the Pan African Parliament, and a Commissioner of the Parliamentary Commission which led to a lot of international work-related travel, 3] therefore used to eam a lot of money in the form of salaries as a Member of Parliament and Deputy Speaker. | also used to earn allowances locally as a Member of Parliament and Commissioner, 3.4 Before joining politics, I worked for lmport & Export Company, then South African High Commission thereafter Fifth Country Programme under the United National Development Programme (UNDP) where earned a very pood salary. 3.5 The 1* Defendant and I jointly ventured into car hire business and some point in time when | was a Member of Parliament, we jointly bought trucks which were painted orange. We used to park these vehicles at Bwandilo in Area 47 for hire. 3.6 The Defendant and I used the revenue generated from my employment, his employment and our business ventures to jointly acquire several properties, both real and personal. Most of the properties are registered in our joint names, 3,7 One of the properties which the 1" Defendant and | jointly acquired is Title Number Jombo 7/8, City of Mzuzu, hereinafter referred to as the property. In order to source additional funds to purchase the property, | also sold my own plot in Lilongwe. 3.8 The property was registered in our joint names in the year 2003. Exhibit LG] is a copy of the transfer of lease from Malawi Government to myself and the 1% Defendant, 3.9 The 1 Defendant and | built a commercial building on the property and there are several fenants in the said building, one of which is NED Bank Limited. 4.10 lporaround the month of August 2013, | discovered that the property had been Vikawu Trust, the 2" Defendant. Exhibit ‘LG2’ are ‘L. G3’ are copies -ease in favour of the 2"¢ Defendant and the 2"@ Defendant's transferrecl to of the Transfer of | Trust Deed, as Def endant; let 1 have never x signed the Ty ansfer of Lease in ‘favour of the ~ alone atit horise the registration of the lease in favour of the om Defendant My purported signature on the Te ansfet of Lease is for gery: : aE 3. 12. I knew nothing about the ae! Defendant and if is ‘evident from a reading of LG. ‘4 pencti iciary nor at ty ustee of the ae Defendant. - petty to the an Defendant, exhibit marked LG: 3 tht fi am 1 neith Be 813. ‘The tr ansfer of Lease oi the ) ‘Is dated 30" April 0013 and it was 5 registered on2 18 May 20 13, 3.14 The 2°! Defendant’s Trust Deed, exhibit marked LG3, ts dated boa August 2013, 3.15 A comparison of the dates of the f the Transfer of Lease to the 2"! Defendant shows that the transfer of 4m Defendants Trust Deed and the date of - registration 0 the property to the 3m Defendant was done at least two months prior to the registration of the 2" Defendant. A property cannot be trarisferred to an entity that is non-existent . 3.16 After i discover ed that the property had been transferred in favour of the gnd Defendant, | went to meet Ms Apendezi Chakanila, Assistant Land Registrar, who purportedly witnessed the Transfer of Lease. Ms. Chakanika acknowledged that she did not see me signing the Transfer of Lease, She however told me that she could not rectify the registration in the absence of a valid court order. 3,17 1 then went to the Controller of Lands, Mr. Kwame Newira, to help me rectify the register by cancelling the registration. After reviewing the file and the matter, he informed me that he could not rectify the registration in the absence of a court order, ‘The Controller of Lands advised me to engage a lawyer to apply for cancellation of the registration. 318 Onorabout 9" September 2013, | registere hereto and mark the same LG4 a copy of the said caution. 1 Defendant as to why he transferred the property in the da caution on the property. | exhibit 3.19 Wher! confronted the | 3" Defendant, without my knowledge and consent, he told me that | name of the was still a beneficiary of the propert trustee nor & beneficiary of the 2"8 Defendant. paid into the 9" Defendant’s account for y. However, this ig not true as 1 am neither a 3.20 All the rentals for the property are which | am not a signatory. As a bona fide joint proprietor in equal shares of the t of rentals for the property. profits from the property yet | have been kept ou 3a t he git ation of the property i in favour’ of the a Defendant violets my Fight Oe to not ‘be arbiti ar ‘ily dept ived of | proper tye oe 4, Tn n dete the et defendants witness statement reads ag follows?, ad fa am n the i defendant, a Member of Parliament and Registered L Land Valuer, “property situated ai title number fombo 78 i in 1 Mzuzu: 4.4 The property ‘stated in paragraph 8 above was boilght i in the year 1996, before | had married the Claimant herein and the same was bought after my former wife had sold our matrimonial home situated in area 15. 4.5 The transfer of the lease for the property was effected in the year 20 d the Claimant, 03, after [ had married the Applicant and the land was jointly transferred to me an was that we could 4.6 The purpose of the transfer of the property in our joint names both obtain loans for the development of the property. 4.7 The Claimant cannot point out how the said property was acquired. 4,8 As opposed to the earlier agreement I had with the Claimant that we would both obtain loans for the development of the property, the Claimant refused to be part of and parcel of the arrangement and refused to pledge her property situated at title number [2/517 as security for the loan for the development of the property herein. The property title number 12/547 was bought by myself for her, 49 As a result of the position taken by the Claimant herein | solely financed the development of the property situate at title number Jombo 7/8 in Mzuzu using loan i in which | pledged my own property situate security, Exhibits YC! and YC2 | are copies facilities obtained from Standard Ban at Title Number Bwaila 47/4/547 as of the Term loan letters and discharge of the charge 410 Asof9" March, 20161 had unsettled liabilities with Standard Bank amounting to K29,633,967.70 as a result of the loans obtained in developing the property. Exhibit YC3 is the letter from Standard Bank detailing my Habilities as of 9'* March, 2016, 4.11 | did not only obtain a | individuals to finance the development of the property, ta loan from National Bank in April, 2011 and Pledged my Mchengautuwa CB3/94/17 which ] fully financed, Exhibit oan from Standard Bank, but I also got loans from the [labilities of which | am yet fo settle. also go property Title Number ¥C4 is a copy of discharge of charge. 4, 12. As a result of hei not ‘contr ‘buting anything to the development” of the proper ty “situate at ttle aurinber Jomba 78 in ‘Mazuau, we ag eed to transfer the proper ty into 2 - Vikawa Trust for the benefit of our children. aa 4 13, The Trustees of Vikavii Ti rust aie our ‘chiren, ‘aimely, Tryness Chika “ Chakutiva Chil hana, T Pakondwa Chitiana, Exhibit YC is ‘the Trustes dee ; . ‘a 140 "The: transfer was duly effected with the e ful knowledee and consent tof the. - Claimant hereirt. Ou ae 4.15 Meanwhile | bought other 2 proper ties for the Claimant herein for her sole benefit one of which included commercial property situated at Plot Number 47/1166 in the City of Lilongwe. 4.16 The Claimant did not contribute to the development of the property herein, The Claimant was not in a financial stable position daring the time which the property was being developed as she could not even pay the development charges for the commercial plot which | purchased for her. Even a notice of Re-entry for the said property in her name was entered as a result of failure to pay development charges. Exhibit YC6 is the notice. 417 The claims by the Claimant over the property which she duly consented to transfer to Vikawu Trust are as result of our failing marriage and separation and are tainted with malice and iil will. 4.38 Asa result of her ill intentions towards me, she got a protection order against me whereas I was forced to move out of our matrimonial home together with our children. 4.19 [am surprised that the Claimant is seeking property from the matrimonial " property when our marriage is stil! subsisting and there is no basis for the sarne. 4.20 J therefore request the Court to dismiss the C laimant’s claim to seek property from the matrimonial property when the marriage is subsisting. Issues for Determination 5. The main issue to be determined is whether Title Number Jombo 7/8 was legally transferred from Yerermiah Chihana and Loveness Gondwe to Vikawu Trust. Analysis of Law and Evidence 6. Section 24(b) of the Registered Land Act states that the registration ofa person as the sroprietor of a lease shall vest in that person the leasehold interest described in the lease, subject fo all implied and expressed agreements, liabilities and incidents of the lease, aa that person the leasehold interest. a) this: case it is ‘not i | dofendant were legal own rs of th the property. "9, ~ transfer from one owner to another owner’? Section 79 su 10, i in indefund Limited v Amin [2002~2003] MLR 80 . to the Register ed Laid Act; regis ation of a pers son as t name ‘of the claimant and Now, being legal owners ‘of the property, the questi This court found Apendezi Chakanika to be a crucl . The court (SCA) it was held) that accor ling. fie ie proprietor c of a lease vests isin 1 dispute that Title Number Jombo 78 was 5 first registere i in fae 7 syst. : | pst defendant. ‘This feans ‘that both the ‘laimant and the sections (1) and (2) of the Registered Land Act pr ovides that a proprietor, by an instt ument in the prescribed form, may transfer his land, lease or charge to any person with or without consideration and that the transfer shali be completed by registration of the transferee as proprietor of the land, lease or charge and by filing the instrument. in the evidence before the court the claimant states that she did not sign for the { the signatire appearing on the ansfer of Lease ,Exhibit LG2, which transferred the property from the claimant and the 1' defendant to the aid repared by Mkhwimba and Company of P. O Box 4005, Lilongwe 4 instruments ansferring the property in question and tha instruments was not hers. The court observes that The Tr defendant, was P Apendezi Chakanika , Land Registrar, witnessed the transferors being the claimant and £8 defendant signing the Transfer of Lease; and Apendezi Chakanika, Land Registrar, certified on the Certificate As To Verification Of Instruments on 30" April 2013 that Y Chihana and Loveness Gondwe signed the documents in her presence and the said Y Chihana and Loveness Gondwe are personally known to her, it is surprising to note that Apendezi Chakanika the Land Registrar was not called as a key witness as she says she saw the claimant sign as transferor, a signature which appears on purportedly vehemently denied by the claimant. ‘al witness and thus summoned her, the instrument but is s, she said she did not witness the parties sign the question from the Parties to the Trust. She In her testimony, as a court witnes documents which transferred the property in added that the documents were brought to her with the purported signatures of the claimant and defendant already appended, . went on further to call an expert witness to determine whether the signature ransferring the property to the teust was forged, The expert witness se Chiumbuzo stated that the signature was of the claimant { Deputy Commissioner of Police Tiye forged. He also stated that the signature of the claimant appearing on the Caution was § on is ia kaaalitie Jeno Nis “forged. ‘Diving cross: examination it was revealed that the caution. ‘stateme “prepare ed at the instance ‘of the lai ant herself anid t {thus her signature could not have: been forged on the caution. Nothing relevant caine owt of cross ‘examination by the: a int to the expert witness. oa ola he court, this court is of the view that the transfei : 13, Having at al the evidence before | a was invegular noting ihat both partie Were S pposed to sign in ‘the Or who in this case was’ Apendézi Chakanika: In ‘her’ own’ “words she ‘sald: she ‘did nat ae a the transfer of lease, Counsel for the: ‘defendant in “ross e presence ofa a withes: witness the parties sig examination did raise a question regarding whether it was possible for parties to sign elsewhere and the documents be presented already signed, Ms Apendezi Chakanika did state that the same does happen. It is this courts view that a breach in a legal process can never be.-made lawful by practise. If the law is to be changed the same has to be through @ pr ocess, The law has specifically put this rule and it is mandatory. This can only be for the simple fact that land matters are not simple transactions. A transfer of land cannot be the same as transfer of tomatoes. tf the legal process requiring the transferors had beer followed this matter would not have existed. 14, This being a civil matter and proof is on a balance of probabilities andnot proof beyond reasonable doubt. By the fact that the transfer of lease was not witnessed by Apendezi Chakanika, there is a strong possibility that the signature was forged. In addition, there is nothing to show for what consideration the claimant gave out her interest in the Jand, She is not a beneficiary of the Trust nor was she given monetary value for it nor was there any communication that her share was given out as a gift. This in tiself establishes the claimants case. Finding 15. The claimants claim succeeds. . 16. The Land Registrar is to register Jombo 7 / 8 in the claimant and defendant names as joint owners as Was the original position. 17. Costs are awarded to the claimant, Pronounced this 14" day of February 2022 at LILONGWE