Mulipa v Mr and Mrs Bibiyani and Other Unknown (Land Cause 105 of 2016) [2017] MWHC 119 (22 May 2017)

IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY LAND CAUSE NUMBER 105 OF 2016 BETWEEN: JULIE F. MULIP A AND PLAINTIFF MR AND MRS BIBIYANI Grandsons (Being AND OTHERS UNKNOWN and Granddaughters of Mr and Mrs Bibiyani) DEFENDANTS CORAM: JUSTICE M. A. TEMBO, Gondwe, Counsel for the Plaintiff Kaduya, Counsel for the Defendants Chanonga, Official Court Interpreter ORDER This is this court's injunction trespassing village, of the plaintiff's order on the restraining or encroaching Authority claim to the said land. Traditional plaintiff's whether application for continuation by themselves piece of land located until the hearing of an order of from or otherwise, at Lunzu-Tipansi and determination on the plaintiff's Kapeni in Blantyre the defendants, r;;7'aH COUHT f LIBRAF1y 11-1- . ....... • ,1 ... , •. ,., ....... ... __ ,..._� The plaintiff filed an ·arguments. skeleton The defendants arguments. on ith skelet affidavit in support of his ap with together also filed an affidavit in opposition plication together w case is as follows. That in September, 2014 she and her husband into a sale agreement with Magdalene Lackson over a piece of customary at Lunzu-Tipansi village in the area of Traditional Authority Kapeni. The plaintiffs' entered land situated The price was KS, 500, 000. The plaintiff September, her land herein. paid the purchase price and enjoyed possession 2014 until around May, 2015 when the defendants started trespassing of the land herein from on The sale of the customary Pasani. land herein was witnessed by Group Village Headman claims that she is a bona fide purchaser of the land herein. She added The plaintiff that the land in issue belonged she actually bought the land from a daughter to the daughters and sons of Aaron Antipasi to Aaron Antipasi. and that The plaintiff Bibiyani started encroaching the land in issue. stated that all of a sudden the defendants who are grandchildr en of who sold the land, namely, Magdalene The person land herein on behalf for the sale was that her clan wanted to break free from conflicts having with the Aaron Tipasi clan. She added that the defendants Tipasi clan who have nothing to do with the land in issue herein. of her clan known as Eliza Tipasi. Lackson, stated that the reason they have been to the Aaron belong She indicated that she sold the She insisted that the land herein the plaintiff is a bona fide purchaser of the same. is under Group Village Headman Pasani and that The plaintiff are trespassing hence the justification for continuation have no claim of right over the land and of the injunction that the defendants asserted herein. On the other hand, the case of the defendant asserts that he is a grandson of Aaron Antipasi. is made by Kingsley Chimasula who and sister that his great grandfather and lived together He states brother Headman Pasani Authority He added that Antipasi Antipasi whereas Bibiyani had La Mr Antipasi in Antipasi Kapeni's in Traditional K wikwi had t were Kwikwi and Mrs Bibiyani A village area in Blantyre under Group village district. si and Simoni wo sons, namely, Aaron Antipa wrence and Anamlauzi. was by then Village He then stated that Aaron Antipasi from Antipasi A and was given land to stay on by Group Village Headman Manjombe where he stayed until his death although he was still Village Headman A. Antipasi Headman and he moved that Magdalene who remained Lackson, He then stated of Anamlauzi, in Antipasi and he was born where Aaron Antipasi Manjombe. who sold the land herein, is a granddaughter A village since only Aaron Antipasi went to live under Group Village Headman left He then stated that in 2009 they applied and the District independent added that they stayed like that until 2015 when Magdalene land. defendant's Commissioner to become an He Lackson sold the to the District Commissione r approved village the application. He noted and agreed with the plaintiff that the land herein belongs Aaron Antipasi. land dispute grandchjldren Court with the observation that the land belongs of on the from the District and the as a grandchild of Aaron Antipasi, to the Magistrate the said land dispute He also referred to the letter between himself, of Bibiyani, to the children Commissioner of Aaron Antipasi. to the children which referred He contended the sale was void. that Magdalene Lackson cannot sale what does not belong to her hence He further by the plaintiff in this matter. argued that customary land cannot be bought and sold as was purported that the plaintiff distorted the facts to appear as if she He added that he is the grandchild of Aaron and the land belongs to him and the other defendants who have a claim of He then stated bought the land from the right person. Antipasi right. deliberately He added that the land in issue is not under Group Village Headman Pasani but under GrouP Village witness the land transaction away without their knowledge. He stated that Pasani deliberately land should be taken so that the defendant's Headman Manjombe. herein observed that damages The defendant matter and that the balance of convenience that was granted ex parte herein on the land herein and have incurred expense. would not be an adequate favours the vacation of the injunction building since some defendants have already started remedy in this law on interim injunctions as submitted This Court is aware of the applicable the plaintiff and the defendants. applicant discloses a good arguable will not try to determine the issues on affidavit evidence to be tried. plaintiff shows that there is a serious question by both injunction where the The court but it will be enough if the claim to the right he seeks to protect. This court will grant an interim is that the court is required to investigate The result only. All that needs to be shown is that the claimant's cause of and reality. per cent or 20 per cent. See Mothercare per Megarry V-C at p. 474; Alfred Megaw LJ at p. 373. chance of winning is 90 Ltd v Robson Books Ltd [ 1979] FSR 466 SA [1979] FSR 337 per Beyond that, it does not matter if the claimant's Ltd v Sunoptic Dunhill the merits to a limited extent action has substance has shown that he has a good arguable claim and that there is a serious If the plaintiff to be tried, then the court will consider the question question be an adequate remedy to either party if the injunction it turns out later that the court should have arrived granting remedy and defendant would be able to pay them, an interlocutory order of See claim. of plaintiffs injunction Mkwamba v Indefund decision on the at a different at common law would be an adequate whether damages would is granted or vice versa and should be refused, Ltd [1990] of the injunction. irrespective Where damages of the strength 13 MLR 244. Where there is an arguable will then have to consider of the interim 2003 (High Court) case and damages are not an adequate remedy, whether the balance of convenience favours the granting the court order of injunction. See Kanyuka v Chiumia (unreported); Tembo v Chakuamba civil cause number 58 of MSCA Civil Appeal Number 30 of 2001 both citing the famous American Cynamid Co. v Ethicon WLR 316. Ltd [1975] The first ·question this Court has to resolve is whether the good arguable claim to the right she seeks to protect. plaintiff has disclosed a argues that she has ownership The plaintiff there is a serious land in issue given the sequence herein. triable issue concerning of the land which is at stake and that adjudication over her ownership pertaining of the to the sale of the said land of events the defendants rightly Of course, bought in terms of title thereto since the title vests in the President Malawians and it is administered the area in issue. hereby declared and is vested 26 of the Land Act provides pointed out that customary land cannot be sold or on behalf of all law of that all customary land is Section 25 of the Land Act provides in perpetuity in the President by the Chiefs according for the purposes of this Act. And section and undoubted to be the lawful to the customary of the people of Malawi property that The Minister administer all customary land, for the use or common benefit, shall, and control subject land and all minerals or indirect, direct in, under or upon any customary of the inhabitants of Malawi: to this Act, and to any other law for the time being in force, Provided that a Chief may, subject Minister, accordance with customary law. authorize the use and occupation to the general of any customary of the land within his area, in or special directions has no claim of right to the that the plaintiff The defendants of land that she seeks to protect. held that title The defendants therefore submitted purchase the High Court has the President of Prophecy Kabaghe v Registered Commissioner That is the correct Court) (unreported). in customary for the benefit of all Malawians. v Mkisi civil cause number Trustees ay Adventist civil application position. land cannot Registered for Lands miscellaneous of Seventh-D cited several cases where be sold as it is vested of Church of God (unreported) Trustees in 1210 of2008 (High Court) and Church and Regional number 44 of 2013 (High However, land sale transaction the plaintiff herein. correctly admitted error in usage of correct wording on the She admits that she did not buy title to the customary land. Rather, that s he however parted with her money and acquired rights to use and occupy the customary land in dispute h erein with the sanction of the chief. Therefore, rights to use and occupy the land in dispute herein. what is not in dispute is that the plaintiff parted with money to acquire has a claim of right to protect in the customary land, namely, therefore The plaintiff her rights benefit of those entitled who is charged matter. to use and occupy the said land upon parting with some money to the to the rights in the land and with the sanction of the Chief to administer the said customary land. But that is not the end of the As it turns out, there is also dispute to use and occupy the customary the transaction on sale of those rights as to who was the right person land and as to which Chief was supposed to sale the rights to witness land. in the customary claims The plaintiff customary Headman Pasani land. The defendants that Magdalene Lackson was entitled with all her clansmen, land, after discussing to sale her the rights in the and that Group Village was the right chief to witness do not agree and assert the contrary. the sale of the rights in the customary assert that the seller of the land herein to get away from the Aaron Antipasi The defendants in dispute, that the seller, namely Magdalene clan and had no power to sell the land in dispute Antipasi Lackson, clan. wanted, clan. And that this clearly by the sale of the land shows does not belong to the Aaron Antipasi herein which belongs to Aaron In the supplementary belongs to her clan, being the Eliza Tipasi affidavit, Lackson Clan. Magdalene clarifies that the land in dispute The defendants witnessed Pasani. additionally assert that the land transaction should have been by Group Village Headman Manjombe and not Group Village Headman In view of the foregoing, the land who was entitled and also as to which chief had jurisdiction it is disputed to sale the said rights in the customary land to the plaintiff to witness the land transaction herein. as to who is the rightful user and occupier of It is significant case bears the correct version. to observe whose that, at this point this Court is unable to determine However, would definitely vindicate stage the pla what is clear is that if the plaintiffs her rights. laim of ri intiff has a c Consequently, story is correct then at trial she this Court finds that at this ght that she seeks to protect at tria l. This Court consequently that needs to go to trial in this matter. determines that the plaintiff has disclosed a triable issue This Court then has to consider remedy to either party if the injunction that the court should have arrived injunction. Where damages at common law would be an adequate defendant would be able to pay them, an interlocutory order of injunction irrespective of the strength of plaintiffs refused, Ltd [1990] the question whether damages would be an adequate or vice versa and it turns out later decision on the granting of the remedy and should be is granted at a different 13 MLR 244. claim. See Mkwamba v Indefund What this Court wishes to observe is that land is inherently damages are not an adequate Therefore, to applications for injunction in relation relation and another civil cause number 451 of2013 (High Court) the issue on adequacy to land. See Nanguwo v Tembenu (unreported). of damages is ordinarily out of the question in remedy where the same is dealt with adverseiy. unique and therefore does not agree with the defendant's This Court therefore relied on in that regard, namely, Cho la v Chimera (High Court) (unreported), presumed to have means to compensate the alleged land owner and consequent Court must consider to be an adequate That argument compensation submission and the case civil cause number 2610 of 2003 r who has built on land must be ly the remedy and not order an injunction. by the uniqueness of every piece of land that renders that an alleged trespasse for the same in damages undesirable. is defeated damages This Court will then have to consider the granting herein or not. of an injunction whether the balance of convenience favours As rightly submitted balance of convenience. Lord Diplock said, at p. 408: by both parties, most injunction cases are determined on the In American Cyanamid Co. v Ethicon Ltd [1975] AC 396 . .. it would be unwise to attempt even to list all the various be taken into consideration relative weight to be attached in deciding to them. These will vary from case to case. where the balance lies, let alone to suggest the matters which may need to such as Cayne v Global Resources that it is not mere convenience Natural In other cases, the courts have insisted the risk of doing an injustice Co. v Ethicon Cyanamid would be incapable in assessing where the balance Ltd said the extent Lord Diplock to one side or the other. to which the disadvantages in damages of convenience lies. in American to each party factor is always a significant of being compensated that needs to be weighed, but plc [1984] 1 All ER 225, Co. v Ethicon of convenience: of prudence In American Cyanamid the balance considering it is a counsel balanced preserve the status [1984] defendant delay, when it is the state of affairs AC 130, it appears quo'. From the conduct Garden Cottage complained that the status started of, unless immediately Ltd Lord Diplock 'Where other factors appear to be evenly said at p. 408 that, m to take such measures Foods Ltd as are calculated to v Milk Marketing Board before the quo ante is the state of affairs before the application. there has been unreasonable quo ante to be preserved the rights acquired The status where the plaintiff before the defendants of the plaintiff. in this matter appears to be the one that prevailed came on the said land and started acting contrary to use and occupy the customary land herein to the rghts In the foregoing continuing occupation maintain circumstances, the injunction herein of the land in dispute herein the balance so that the plaintiff upon an alleged lies m favour of who had been in use and purchase of the parties of the same must are determined. use and occupation of the same until the rights of convenience This Court would like to however deal adversely occupy the said land until this matter with the land herein make clear that the plaintiff or assigning must not in any way to use and her rights by disposing is heard and determined. This Court will not have to consider is a matter at p. 409 that of last resort. In American the relative Cyanamid strength Co. v Ethicon This Ltd Lord Dip lock said of the parties' cases. ... it may not be improper of each party's case as revealed the balance adduced by the affidavit evidence of the on the hearing to take into account in tipping the relative strength application. disclosed party's case is disproportionate embarking upon anything resembling a t This, however, should be done only where it is apparent upon the facts that the strength of one in by evidence as to which there is no credible dispute to that of the other party. The court is not justified rial of the action upon conflicting affidavits in order t o evaluate the strength of either party's c ase. The parties is escalated until trial. must ensure that this matter which is exempt from mandatory mediation to trial as soon as possible since this Court is fully seized of this matter Costs on this application shall be for the successful plaintiff. Made in chambers at Blantyre this 22nd May 2017. 9