Kachala and 5 Others v Chabwera and 3 Others (Misc. Cause 26 of 2021) [2022] MWHC 12 (25 January 2022)

IN THE HIGH COURT OF MALAWI CIVIL DIVISION PRINCIPAL REGISTRY MISCELLANEOUS CASE NUMBER 26 OF 20201 ID TTHPII7TT T? M Dij 1 W Jt> Jti/JLN CHRISTINA KACHALA AND 5 OTHERS................ CLAIMANTS AND SAMSON RICHARD CHABWERA................. ....1st DEFENDANT AND TRADITIONAL AUTHORITY JALASI............. 2nd DEFENDANT AND MANGOCHI DISTRICT COUNCIL..................3^ DEFENDANT AND COMMISSIONER FOR LAND........................ 4th DEFENDANT BEFORE: Honourable Judge Jack N’riva Mr Kazembe Ngunga Counsel for the applicants Defendant not present Ms D Nkangala Court Official ORDER Upon hearing counsel and Upon reading the sworn statement in support The unchallenged allegations in this matter are That the land in dispute is customary belonging to the claimants and the first defendant as members of a clan It is also stated that the first defendant went to court of the Second Grade Magistrate in Mangochi concerning the same land and was unsuccessful After that the first defendant went on to process leasehold on the land without consulting the claimants Then the first defendant sought an injunction in this Court which injunction was discharged for want of commencing an action In my judgment, the first defendant intended, or was using, the legal processes to frustrate the fact that the court in Mangochi found in favour of the claimants concerning the piece of land in question The sum effect of this is that the first defendant interns to enjoy benefit of the land to the exclusion of the other clan members, the claimants In my judgment this amounts to deprivation of the land and against the right to own property enshrined in the Republic Constitution in Section 28 In the circumstances, this Court is in agreement with the claimants and the Court makes the declaration sought The Court finds and declares that the first defendant intended to deprive the claimants of the use and occupation of the land in dispute The Court finds and declares that the whole Scheme tainted with unlawfulness rendering the transaction void This the Court orders that the lease the first defendant obtained was void The Court makes an order compelling the fourth defendant to cancel the lease granted to the first defendant The first defendant shall meet costs of this proceding MADE in Chamber on 25th day of January, 2022 JUDGE 3