John Wiscot v Nowa Pondamai (village headman Lipenga) (Civil Cause 8 of 2021) [2021] MWHC 111 (30 April 2021)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL CAUSE NO. 8 OF 2021 (Before Honourable Justice Msiska) BETWEEN JOHN WISCOT.......... . ......................................... . CLAIMANT AND NOWA PONDAMAI (VILLAGE HEADMAN LIPENGA)........ DEFENDANT CORAM : HON. JUSTICE WILLIAM YAKUWAWA MSISKA Ms Kusani, Counsel for the Claimant Ms. Makoko, Counsel for the Defendant H. L Matope, Court Clerk RULING This is the ruling of the Court following an application by the Claimant for an order of interlocutory injunction restraining the Defendant either by himself, his 1 I P a g e agents, relatives from entering, cultivating, trespassing, encroaching, developing, planting trees, dealing otherwise interfering with the Claimant’s rights pending determination of the matter until further order of the Court. The application came before me on 22nd January 2021 by way of ex-Parte, and I directed that the application come by way of inter-Partes hearing. The application for injunction is contested by the Defendant. SWORN STATEMENTS The application is supported by a sworn statement by the Claimant himself. In his sworn Statement he states that he is the son of late Miss Ntchowa Sinemba of Lipenga Village under Group Village Headman Tumbi in the area of T/A Malili in Lilongwe district. Before her death, his mother owned a piece of land about 18 acres which land the Claimant inherited. Since the death of his mother, he had been using the land without any problems and in 2010 he gave part of land comprising 6 acres to his daughter for her own use. Things started to change when the Defendant was installed as Village Headman Lipenga in 2012. It is at this time that the Defendant encroached and trespassed on the land that the Claimant gave to his daughter. According to the Claimant, the Defendant has now taken full possession of the 6 acres of land depriving the daughter of the Claimant peaceful use of the land. It is on that account that he seeks an order of the Court to restrain the defendant from encroaching or otherwise dealing with the land in issue. The Defendant filed a sworn statement in opposition. Due to the detailed nature of the issues raised in the sworn statement, I will not attempt to summarize but set out in full the relevant and material parts as follows: 2 I Page 4. THAT the Claimant and I are indeed cousins, that is, our mothers were sisters. 5. THAT our later grandmother, Mwaiiduchi had six children namely Tchowa, Sinemba, Gaudi Sinemba, Lipenga Sinemba, Namaloko Sinemba, Christopher Sinemba, En&lesi Sinemba and Marko Sinemba. 6. THAT my mother was Enelesi and the Claimants mother was Tchowa. 7. THAT the Claimant and I were both raised in Lipenga Village, T/A Malili in Lilongwe. 8. THAT our grandmother late Mwanduchi allocated land to each of her six children mentioned above in paragraph 5. The purpose of allocation was that the children should cultivate on the land together with their children. 9. THAT after the death of the Claimant's mother, late Tchowa, the claimant inherited all pieces of land belonging to his mother situated at Chipampha and Tumbi in Lipenga Village 10. TH AT the Claimant allocated some of the land to his children, however, he later sold all the land he inherited from his late mother including that which he had shared among his children and shared the proceeds of the sale to his children who in turn have bought other land at Unit 6 at Kapalasa Area where they are now farming. 11. THAT upon seeing that he had no land left within Lipenga village to farm on, the Claimant wanted to grab the land that was allocated to the late Gandi who is uncle to the Claimant and I and also the son of our later grandmother Mwauduchi as mentioned in paragraph 5 of this Sworn Statement. 12. THAT further to paragraph 11 above, the said land is meant for the children of late Gandi as their inheritance. 3 | P a g e 13. THAT upon seeing this, family members from the village mobilized themselves and evicted the Claimant from late Gaudi Sinemba as they feared that the Claimant would also sell this land, being land that is not his. 14. TH AT in order to prevent the Claimant from possessing the land and selling the land as he usually does, the family agreed that we let Out the land to another person aside from the family to use it for farming. 15. THAT this is done in order to preserve the land for Gaudi's children who are not in the Village, blit are instead living in other places. 16. THAT the money from the rent did not go to a particzilar person, but rather, it was used for family emergencies such as funerals and other important events. 17. TH AT I was indeed installed Village Headman Lipenga in 2012 and I have never encroached in any piece of land owned by the Claimant and his children. 18. TH AT in response to paragraph 11 of the Claimant's Sworn Statement in support of the application, the land that was in dispute between myself and the Claimant, is not the land the Claimant is claiming in this matter. 19. THAT the other land was farm land owned by myself and it was ruled in any favour that, land actually belongs to me by Traditional Authority Mbwatalika and Senior Group Village Headman Chiliza, and the land in this matter is different land owned by the late Gaudi Sinemba. ISSUES FOR DETERMINATION It should be recalled that the application is brought under 0.10, Rule 27 of CPR, which provides as follows: - “The Court may on an application, grant an injunction by an interlocutory order when it appears to the Court that- 4 | Page (a) there is a serious question to be tried; (b) damages are not an adequate remedy; and (c) it shall be just to do so, and the order may be made unconditionally or a such terms or conditions as the Court may consider Just1’ It is trite law that an interlocutory injunction is a temporary and exceptional remedy which is available before the rights of the parties have been finally determined: American Cyanamid Co. v. Ethicon Limited [1975] AC 396 and Ian Kanyuka v. Thom Chiumia and Others PR. Civil Cause NO. 58 of 2003. In the latter case Tembo J observed as follows- “The usual purpose of an Interlocutory injunction is to preserve the status quo until the rights of the parties have been determined in the action. The injunction will almost always be negative in form, thus to restrain the defendant from doing some act. The principles to be applied in application for injunction have been authoritatively explained by Lord Diplock in America Cyanamid Co, v. Ethicon Limited[1975]AC 396”. In American Cyanamid Co. v. Ethicon Limited, Lord Diplock outlined the procedure when dealing with application of interlocutory injunctions as follows; a) Provided the Court is satisfied that there is a serious question to be tried, there is no rule that the party seeking an interlocutory injunction must show prima facie case. b) The court must consider whether the balance of convenience lies in favour of granting or refusing an interlocutory injunction. c) As regards, the balance of convenience the court should first consider whether, if the plaintiff succeeds, he would be 5 | P a g e adequately compensated by damages for the loss sustained between the application and the trial, in which case no interlocutory injunction should normally be granted. d) If damages would not provide an adequate remedy the Court should then consider whether if the plaintiff fails; the defendant would be adequately compensated under the plaintiffs undertaking in damages, in which case there would be no reason upon this ground to refuse an interlocutory injunction. e) Then one goes to consider all other matters relevant to the balance of convenience, an important factor in the balance, should this otherwise be even being preservation of the status quo. f) Finally, and apparently only when the balance still appears even, it may not be improper to take into account in tipping the balance the relative strength of each party case as revealed by sworn statements. The criteria are flexible as they are based on the facts and circumstances obtaining in a particular case before the Court. Additionally, the criteria are also flexible when considered in light of the principle that exercise of discretion of the court should not be fettered by laying down rales which would have the effect of limiting the flexibility of the remedy. See R v Secretary of State for Transport, ex Parte Factortame Ltd & others (NO. 2) [1991] AC 603. I now turn to consider how these principles apply to the facts in the present proceeding. WHETHER THERE IS A SERIOUS ISSUE TO BE TRIED? 6 J P a g e This is the first issue to consider in an application for interlocutory injunction. The reason is that it would be wrong that the claimant should obtain relief on the basis of a claim that has no reasonable justification. If a party seeking an interlocutory injunction is able to establish that there is a serious case to be tried, then he has satisfied the threshold; thereafter the Court should address the question whether it is just a convenient to grant an injunction. See R v Secretary for Transport ex-Parte Factortame Ltd & Others (No.2). If the answer to the question is “no”, the application fails in limine. See C. B. S. Songs v Amstrad [1988]AC 1013. I have considered the skeleton arguments and the submissions of counsel on both sides, and having read the sworn statements, it leaves this Court with no hesitation that the facts herein are very much in dispute and raise pertinent questions to be tried by the Court at a full trial. For example, the Claimant argues that he has ownership of the piece of land in dispute while the Defendant argues that the land in issue belongs to their late uncle Gaudi Sinemba. In so finding, this Court has taken into consideration the case authority of Mwapasa and Another v Stanbic Bank Limited & others HC/PR Civil Cause No. 110 of 2003 (unreported) in which case it was stated as follows- “a Court must at this stage avoid resolving complex legal questions appreciated through factual and legal issues only trial can avoid and unravel. ” WHETHER DAMAGES ARE AN ADEQUATE REMEDY Having found out that there are serious issues to be tried, I should now consider the adequacy of remedies in damages available for either party. Acknowledging that the issue in the present proceeding relates to land, there is 7 | Page really little to say on the matter. It is common knowledge 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. This is a legal principle that has fully been indorsed by the Malawi Supreme Court of Appeal in the case of Village Headman Kungwa Kapinya & Others v Chasato Estates Limited MSCA Civil Appeal No. 75 of 216 (unreported) and Sikawa v Bamusi HC/PR Land Civil Cause No. 53 of 2013 (unreported). It is my considered view that the principle applies worth equal force to customary land as is in the present proceeding. In the circumstances, this court finds that damages may not be adequate remedy BALANCE OF CONVENIENCE It is the argument of the Claimant that the balance of convenience lies in his favour. However, upon consideration and analysis of the sworn statements herein, this Court was, at first, of the impression that it shall be just and equitable if the status quo was maintained. By status quo it means the state of affairs existing during the period immediately proceeding the arising of the dispute leading to commencement of proceedings. See Garden Cottage Food Limited -vs- Milk Marketing Board [1984] AC 130. In the present proceeding, the existing state of affairs is that the defendant is renting out to persons not relatives to contesting parties. On the facts of the present proceeding, this Court is not inclined to maintain the status quo. In the circumstances, I exercise my discretion to grant an order restraining either the Claimant or Defendant by themselves, agents, relatives or servants from entering, cultivating, trespassing, encroaching, developing, planting trees or 8 | Page otherwise dealing with the land in question until determination of the main proceeding herein or until a further order of the Court. Costs are in cause. PRONOUNCED in Chambers this 30th day of April 2021 at Lilongwe W. Y. Msiska JUDGE 9 | Page