Iqbal Hussein Shaikh v Mwase (Civil Cause 115 of 2021) [2021] MWHC 244 (29 November 2021)

Iqbal Hussein Shaikh v. Joe Hussein Mwase Kenyatta Nyirenda, J. JUDICIARY * * IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY (CIVIL DIVISION) CIVIL CAUSE NO. 115 OF 2021 (Before Honourable Justice Kenyatta Nyirenda) BETWEEN, ■ . IQBAL HUSSEIN SHAIKH CLAIMANT AND JOE HUSSEIN MWASE .. DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. Tepeka, Counsel for the Claimant Mi', Chidothe, Counsel for the Defendant’ " Mr. Henry KachingWe, Court Clerk ’ ■ ' ‘ Kenyatta Nyirenda, 1 RULING . . \ jl This is my Ruling on an inter-partes application by the Claimant for an order of interlocutory injunction ordering the the Defendant to immediately suspend all construction works on, near and across the Claimant’s, land under title number Kabvunguti 25/65 situate at Kasungu pending the foil and final determination of the substantive case herein. The application is supported by the following statement, sworn by the Claimant: “3. THAT I am the owner of a piece of land under title Number Kabvunguti 25/65 situated at Kasungu District. I hereby attach a copy of the Certificate of Lease for the said piece of land marked and exhibited as “IH1”. 4. 5. THAT 'the Defendant, claims Jo own an adjacent piece of land close to my land namedin paragraph 3 above. THAT I purchased the above named land in 2016 from the late Aaron Gadama family who also handed over all the necessary documents about the land to me. I 1 • " Iqbal Hussein Shaikh v. Joe Hussein Mwase Kenyatta Nyirenda, J. t .. ( ) 6. 7. 8. 9. 10. 11. 12. 13. hereby attach and. exhibit copies ofthe documents, named, herein marked and exhibited as “IH2” and “TH5” " "V' ' ' ’ ' ’ THAT the deed document- for the above named piece of land shows that the Gadama family acquired it in 1958 and were in peaceful possession of the same since that time. . ■ ■ . ,• THAT in 2016 upon the acquisition of this land under title Number Kabvunguti 25/65from the late Aaron Gadama family I constructed shops and other buildings for commercial purposes. ' THAT I have been in quiet enjoyment, of this piece 'of land until July, 2021 when the Defendant herein started constructing, a warehousefrom his so called adjacent land into my land-named herein: As if this was not enough the Defendant also demolished part of the buildings I constructed claiming that portion of the land to be his, despite having no any evidence .to support his claim. I herein attach and exhibit copies ofphotos showing the part where the Defendant has demolished part of my buildings marked and exhibited as “TH 4”. ,1'r ■' THAT I tried to talk'to-the. Defendant io stop what he was doing as it was illegal and I even showed him all papers front 'Kasimgu Town 'Planning Committee and from The' Regional Commissioner for Physical Planning, Physical Maps and Grants Permission clearly showing the boundary of my plot but the Defendant has refused to listen and through" threats and intimidation the Defendant is still continuing with the illegal constructions into my f and named herein. THAT seeing that the- Defendant has refused to stop with-the encroachment into my land, I wrote -a letter to Kasungu. Municipal Council to resolve the matter. I hereby attached a copy of the Letter . I wrote to Kasungu Municipal Council to intervene in this matter marked and exhibited, as “TH 5”^ THAT following my letter, the Director of Planning & Development for Kasungu ' Municipal Council wrote the-Defendant a. letter about my complaint and. they also requested the Defendant to attend a hearing to resolve the issue about the boundary. The Defendant was also asked to bring all the necessary documents to support his case. However, the Defendant refused to respond to calls by Kasungu Municipal Council. 1 hereby attach and exhibit a copy of the Letter from Kasungu Municipal Council addressed to the Defendant' marked and exhibited as “IH6”. THAT it should be mentioned here that in the Letter referred to in Paragraph 11 above Kasungu Municipal Council invited the Defendant to a hearing and the Defendant was also requested to bring any documents to support his claim but the Defendant without giving any- reason has refused to. (to sq. THAT, despite all my efforts to peacefully resolve the matter with the Defendant, the Defendant has neglected to stop the .encroachment by continuing to build structures from his- alleged adjacent land extending into my land herein as well as demolishing old buildings on my.land.: --s ' .. Iqbal Hussein Shaikh v. Joe Hussein Mwase ' Kenyatta Nyirenda, J. 14. 15. THAT therefore, unless stopped by an Order of this. Honourable . Court, the Defendant has through threats and. intimidation vowed to continue with the encroachment and this, is really affecting my peacefully enjoyment of my property and being used for. commercial purposes, tfye economiqydamage is mounting and there is so much tension so that lam fearing for my own safety and the safety of my tenants. ' ' ' : ' . THAT furthermore, since the Defendant have started constructing permanent structures extending into my land herein and therefore if this order is not granted by this Court by the time this matter is resolved'in my favour it will be difficult and costly for the me to demolish the structures. ’Therefdre) ul the light of the foregoing it is only fair to both parties herein that an Order of an injunction is granted so that the Defendant should immediately, suspend all construction works until the final determination of the matter herein. 16 THAT further, in the event of being found liable' in trespass as a result of the encroachment, the Defendant would not be able to p ay damages (damages would be an inadequate remedy) as it is not'clear on hpw the Defendant would remedy ■ ■ the damage and loss 1 have-suffered. 17. THAT I undertake to pay.damages should it later transpire that the Order herein was erroneously granted. ” Upon perusing the application, I granted the Claimant an 'brder of interlocutory injunction subject to an inter-partes hearing; ' " The Defendant has filed with Court a sworn statement in opposition and the same states as follows: "3. THAT I have read the sworn statement in support of the' application for an injunction herein and wish to respond as follows:'- ■ V. 5. THAT I refer to paragraph 3 and 4 ofsworn statement in support of the application for an injunction herein and wish to confirm that the Claimant and I have separate plots in Kasungu and we share boundary'. '■ ■ ■ " " P- THAT my plot was allocated to me by Kasungu Town Assembly on 24lh November, 2005 and was registered as Plot Number 131. Copies of Application for lease, Sketch plan and letter of consent from Kiasungu Town Assembly are annexed hereto and marked as “Jill”, “JII2”, “JH3” respectively. d THAT at that time, my plot was created between two 'plots, namely, Plot No. 11 and 217. By then, Plot Number 11 was owned by the Gadama family. 7, THAT sometime in 2016, the claimant bought the plot Number 11 from the Gadama family. Immediately after purchasing the said plot,, he applied for change of ownership. .3 - Iqbal Hussein Shaikh v. Joe Hussein Mwase ■r" Kenyatta Nyirenda, J. <§• THAT on 26th -My; 2016, Plot Number 11 was registered in the name of the Claimant under title Number 25/65. 9. 10. 11. 12. 13. THAT I repeat paragraph 8 hereof and state that the letter from Kasungu Municipal Council marked as ‘TH 6” in the sworn staie'ifient of IQBAL HUSSEIN SHEIKH-confirms that Plot 11 is also known asriitle Number 25/65. THAT I refer to paragraphs 2, 3, 4, 5, 6 and 7 of the Sworn Statement in support of the application for an injunction herein and state that the area in dispute is part of plot 131 not plot Number 11 or 25/65 as alleged by the claimant, 11 '■ ' ; - t-jj,. THAT the Claimant is the one who has• encroached on,my plot by extending his warehouse and a tank beyond his boundary.. Copies of the pictures of the extensions made by the Claimant are how shown id me arid marked as “JH 4”. THAT I tried on several occasions to stop him from his encroachment but all my efforts proved futile. ’ THAT consequently, I decided to erect a wall on the boundary as a way of stopping him from continuing encroaching my land. I further removed the part of the structure that extended into my plot. 14. • THAT when the claimant lodged a complaint before. Kasungu District Assembly, I requested them to come and resolve the-land dispute at plot but they rejected. 15. THAT I therefore felt that their request-was in bad faith so I decided not to go there. .16.. THATTverily believe that the injunction herein if granted^dispose the claim herein in -that it .will .give the Claimant a leeway to continue intruding on my plot, 17. 18. 19. 20. THAT furthermore, the Claimant is guilty of suppressing riiaterial facts in that he did not disclose to this court the fact that he is erecting his structures beyond his boundary and that before I decided to put up my structure, I requested him to stop extending into my plot. ' ’ - THAT I run a wholesale business in Kasungu-styled Future General Dealers and Transportation Business styled as Future Tours. . ■ ' THAT it is therefore not true that 1 cannot be able to pay damages if the Claimants succeeds in this claim. ' ■ ' . THAT it is therefore not true that I canndt be able to pay damages if the Claimants succeeds in this claim, "■ • .- Iqbal Hussein Shaikh v. Joe Hussein Mwase . ' Kenyatta Nyirenda, J. 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 Joy an interlocutory order when it appears to the court that (a) there is a scrip usquesti on to be tried, (b) damages may not be an adequate remedy and (c) it shall be just to do so. Having carefully read and considered the sworn statements and the submissions by Counsel, it is very clear to me that this case raises triable issues, with the obvious one being issue relating to the ownership of the land in dispute. Both parties claim to be the rightful proprietors of the land in dispute On the question of damages, there is really little to say on the matter. It is trite that every piece of land is of particular and unique value .to the owner and damages are an inadequate remedy and, in any case, .damages would be difficult to assess: see Julie F. Mulipa v. Mr. and Mrs. Bibiyarii and Others unknown, Land Cause No. 105 of 2016 (unreported)/wherein Tembo, J., while quoting Nanguwo v. Tembenu and another, HC/PR Civil Cause No. 451 of 2013 (unreported), stated as follows: “What this Court wishes to observe is that laud 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 applications for injunction in relation to land. ” As regards the balance of justice, sometimes it is best to grant an order of interlocutory injunction so as to maintain the status quo until the trial and at other times, it is best not to impose any restraint on the defendant: see the cases of Hubbard v. Vosper [1972] 2 Q. B. 84 and Henry Malista & Others v Village Headman Sakhama (Enock Mututu), Civil Cause no.66 of 2018). See also American Cyanamid case. z !J ' -■ ■: , .■ ■ Where the act complained of is still in preliminary stages, the preservation of the status quo favours the applicant. If the respondent has gone a long way, he or she claims the benefit of the preservation of the status quo; However, the court must desist from availing a benefit to a respondent who rushed his'or her work with a view to defeating the applicant’s attempt to stop him or her: see Shepherd Holmes Ltd v. Sandham [1971] Ch. 340. In the present case, the unchallenged evidence is that the Claimant has been in possession of the land in dispute since 2016 and it is only jn the last five months that the Defendant entered into the land in dispute, demolished part, of the buildings Iqbal Hussein Shaikh v. Joe Hussein Mwase Kenyatta Nyirenda, J. thereon and started taking preparatory steps to build his own structures thereon. In short, it is my finding that the complained acts are still in the preliminary stages. That being the case, the preservation of the status quo favours the Claimant. In the premises, the order of interlocutory injunction is granted,W plfay ed. Pronounced in Chambers this Republic of Malawi. -29 th dav of . November 2021 at Lilongwe in Kenyatta Nyirenda JUDGE 6