Kadzamira v Sub Traditional Authority Kawere & 3 Others v Attorney General( Ministry of Lands) (Civil Cause 373 of 2020) [2025] MWHCCiv 15 (30 December 2025)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 373 OF 2020 (Before Honourable Justice Mdeza) BETWEEN MAMA CECILIA TAMANDA KADZAMIRA ……………………………... CLAIMANT -AND- SUB TRADITIONAL AUTHORITY KAWERE ……………………… 1ST DEFENDANT GABON KAPHWITI …………………………………………………….. 2ND DEFENDANT MRS KAPHWITI ………………………………………………………… 3RD DEFENDANT YERIKO MATEYU ……………………………………………………… 4TH DEFENDANT -AND- ATTORNEY GENERAL (MINISTRY OF LANDS) ……………………… THIRD PARTY Coram: The Honourable Justice Simeon Mdeza, Judge Soko, Counsel, for the Claimant Kita/Chijere (Mrs.), Counsel for the Defendant Bonomali, Kaunde, Phiri, Mbalati, Counsel, for the Third Party Mombera, Principal Reporter Katentha, Official Interpreter Page | 1 INTRODUCTION JUDGEMENT 1. This is the Judgement of the Court on the claimant’s claim for an order of permanent injunction restraining the defendants from trespassing unto her land; damages for trespass and costs of the action. The matter was commenced by a specially endorsed summon. The summons was accompanied by an application for an interlocutory injunction, which was granted by the Court and remains in force. All the defendants except the fourth defended the action. THE CLAIMANT’S CASE 2. The Claimant’s case is that she is the lawful lessee and proprietor of land known as Tichitenji Estate and that the Defendants’ entry onto the property in or about November 2020 was unlawful, forceful, and constituted actionable trespass. 3. The Claimant asserts that her title to the land lawfully arose in 1978 following a surrender of the previous lease by Dr Hastings Kamuzu Banda. According to the Claimant, Dr Banda surrendered his lease to the Government of Malawi by a Deed of Surrender dated 31st March 1978. Upon that surrender, the land reverted to the Government, which thereafter lawfully exercised its statutory powers to re-grant the land to the Claimant. The Claimant states that she was granted a 99-year lease effective from 1st April 1978 and that she has held that lease continuously since that time. In support of this position, the Claimant relies on the Deed of Surrender, the Lease Deed issued in her name, and the land registry records confirming her registration as lessee. 4. The Claimant further states that following the grant of the lease, she took possession of the land and has remained in open, peaceful, and uninterrupted occupation of the estate for several decades. She asserts that she developed the land extensively, exercised rights of ownership, and enjoyed quiet possession without interference from any person, including the Defendants or their predecessors. The Claimant’s evidence is that for over forty years, no competing claim was raised against her title, and no legal proceedings were commenced to challenge her ownership. Page | 2 5. In advancing her case, the Claimant relied on her own witness statement, which she adopted in evidence, and on the testimony of Mr John Dzikambani Chapotera. Through this evidence, the Claimant sought to establish both her lawful acquisition of the land and the long period of possession that followed. 7. The Claimant’s case is that the Defendants’ conduct in November 2021 amounted to unlawful trespass. She alleges that the Defendants entered the land without her consent, sealed buildings on the estate, and asserted ownership without any court order or lawful authority. She characterises these actions as self-help and contends that even where a party believes it has a claim to land, the law does not permit forcible entry or interference with another’s possession. On this basis, she argues that trespass is established once unlawful entry is proven, and that damage need not be shown. 8. In her submissions, the Claimant places strong reliance on the principle of the sanctity of registered title. She argues that under Malawian land law, registration confers legal protection and certainty, and that the courts should be slow to disturb a registered interest. 8. The Claimant further submits that any prior interests in the land, including any lease allegedly held by Elias Zakeyo Kaphwiti Banda in the 1960s, were lawfully extinguished through the surrender by Dr Banda and the subsequent re-grant by the Government. She argues that once the surrender occurred, the Government regained full capacity to deal with the land, and the doctrine of nemo dat quod non habet does not apply. She contends that the Defendants’ reliance on historical claims is legally untenable in light of the lawful surrender and re-grant process. 9. The Claimant also commented on the issue of delay and limitation. Counsel for the Claimant submits that the Defendants slept on their alleged rights for decades and that any attempt to challenge her title is barred by the Limitation Act. She argues that the Defendants’ prolonged inaction amounts to acquiescence and that equity does not assist those who delay. On this basis, she contends that the Defendants cannot now be heard to challenge a title that has existed openly and uncontested for over forty years. Page | 3 10. The Claimant further submits that this Court must be guided strictly by the pleadings before it. She contends that the present action is framed as one for trespass, and not as a suit for declaration of ownership. In that regard, the Claimant argues that it is unnecessary, for purposes of establishing trespass, to prove ownership of the land. What is decisive is proof of lawful possession and unlawful interference with that possession. The Claimant relies on the decision in Nkhukuti Beach Ltd et al v Mwafulirwa and Another, MSCA Civil Appeal No. 65 of 2009, where the Supreme Court of Appeal affirmed that possession alone is sufficient to ground an action in trespass, and that ownership need not be proved where possession is established. On this basis, the Claimant maintains that her long-standing possession of the land, coupled with the Defendants’ entry thereon without consent, is sufficient to sustain her claim. 11. The Claimant further contends that the Defendants’ attempt to reopen the question of ownership is barred by the doctrine of Functus officio. She submits that the issue of ownership of the land was conclusively determined by the High Court in The State (on behalf of Mama Kadzamira) Ex Parte District Commissioner for Mchinji, Judicial Review Case No. 25 of 2020. According to the Claimant, that decision resolved the legality of the Claimant’s title and occupation of the land, and the matter cannot now be relitigated in these proceedings, even if the pleadings were capable of accommodating such an inquiry. In support of this proposition, the Claimant relies on Fusion Industries Limited & Another v World Vision International & Another, Civil Case No. 874 of 2019, where the Court reiterated that parties are precluded from reopening matters that have already been judicially determined between them or their privies. 12. The Claimant further submits that even if, contrary to her primary position, the issue of ownership were open for determination in these proceedings, the historical record reveals that the leasehold interests relied upon by her were lawfully created. She argues that once Tichitenji Estate was offered to Dr Hastings Kamuzu Banda, the Minister of Lands must be taken to have lawfully re-entered the land and determined any prior lease in accordance with section 14 of the then Land Act. The subsequent grant of the land to Dr Banda, and the later grant to the Claimant following the surrender of Dr Banda’s lease to the Government, are therefore said to have been valid acts of state administration. The Page | 4 Claimant contends that these transactions benefit from the presumption of regularity, and that the burden lies squarely on the Defendants to rebut that presumption. In this regard, the Claimant relies on R (Newhaven Port and Properties Ltd) v East Sussex County Council [2013] EWCA Civ 276, where the court affirmed that official acts of public authorities are presumed to have been lawfully performed unless cogent evidence to the contrary is produced. 13. The Claimant further argues that, even in the unlikely event that her title were found to be defective, which she expressly denies, she nonetheless acquired a valid and enforceable interest in the land through the doctrine of adverse possession. She maintains that she has been in open, continuous, and uninterrupted possession of the land since 1978, exercising control and dominion over it without challenge for several decades. While acknowledging the Defendants’ assertion that they fled Malawi due to political persecution, the Claimant submits that no satisfactory explanation has been provided for their failure to assert any rights over the land from 1994, following the change of government, up to the present. She contends that the law does not assist parties who sleep on their rights and that the prolonged inaction on the part of the Defendants fatally undermines any belated challenge to her possession. 14. In conclusion, the Claimant maintains that, whether the matter is approached from the standpoint of possession, finality of litigation, presumption of regularity in state action, or adverse possession, the Defendants’ entry onto the land was unlawful and constituted trespass. She therefore reiterates her prayer for relief as pleaded. The Claimant’s case is that she holds a valid and lawful lease over the land, supported by statutory registration, long possession, and the absence of fraud or illegality. She maintains that the Defendants’ entry onto the land was unlawful and that she is entitled to relief for trespass and to a permanent injunction to protect her quiet enjoyment of the property. THE DEFENDANTS’ CASE 15. Among the Defendants, a distinction is drawn between the 1st Defendant, who is sued in his official capacity as a Sub-Traditional Authority, and the 2nd and 3rd Defendants, whose interests arise from the estate of the late Elias Zakeyo Kaphwiti Banda. The 4th Defendant Page | 5 did not defend the matter and did not place any evidence before the Court. The 1st Defendant’s case is therefore advanced on a different factual and legal footing, although it is closely connected to, and consistent with, the broader case advanced by the remaining Defendants regarding the history and identity of the land in dispute. For the sake of clarity, the 2nd and 3rd Defendants’ case will be explained first. 16. The 2nd and 3rd Defendants oppose the Claimant’s claim and maintain that they possess a superior title to the land in dispute. Their case is that the land was lawfully leased to Elias Zakeyo Kaphwiti Banda, that the lease was registered and never lawfully extinguished, and that the Claimant’s alleged title arose while that earlier interest was still subsisting. 17. According to the Defendants’ evidence, the land known as Tichitenji Farm was leased to Elias Zakeyo Kaphwiti Banda in or about 1968, and the Lease Deed was registered with the relevant land registry. The Defendants rely on documentary evidence produced through the testimony of Mrs Falesi Kaphwiti Banda, which they say shows that the lease was never surrendered, forfeited, or cancelled. The Defendants’ witnesses testified that Elias Banda and his family occupied and utilised the land until their removal in or around 1972, after which the family went into exile in Zambia. The Defendants contend that although this removal resulted in physical dispossession, it did not lawfully extinguish the registered lease. 18. The 2nd and 3rd Defendants’ evidence further shows that Elias Banda returned to Malawi in 1993, following the change in political circumstances. According to the testimony of Tapiwa Kaphwiti Banda, who is the daughter of the 3rd Defendant and the late Elias Banda, her father sought to recover properties he had left behind when he went into exile. Tapiwa testified that during their time in Zambia, her father consistently spoke of the properties he had left in Malawi, including Tichitenji Farm. Upon his return, he commenced legal proceedings to recover certain properties and succeeded in regaining some of them, including a commercial property at Mchinji Boma and a cottage in Salima. However, Tapiwa stated that her father did not commence legal proceedings in respect of Tichitenji Farm because he did not have the title documents in his possession at the time. Elias Banda died on 19th May 2012, still desiring to recover the farm. Page | 6 19. According to Tapiwa’s testimony, the status of Tichitenji Farm only became clear in 2014 in the course of an unrelated administrative process. She testified that she accompanied the 3rd Defendant to the Regional Commissioner of Lands Office in Lilongwe Area 3 to obtain a valuation report for a commercial plot in Mchinji, which was required for the purpose of processing letters of administration for the estate of Elias Zakeyo Kaphwiti Banda. While attending to this matter, the officer assisting them asked whether they wished to obtain valuation reports for all properties belonging to Elias Banda, including Tichitenji Farm. Tapiwa testified that this inquiry came as a surprise, as the family had been made to believe that the farm had been sold and that ownership had changed. She further stated that the officer provided them with the original title deed for Tichitenji Farm, explaining that it had been left at the Lands Office by Barclays Bank when the bank closed its offices in Malawi, and that Elias Banda had previously deposited the title deeds with the bank before leaving Malawi. 20. Tapiwa testified that following this interaction, an official search of the Deeds Register was conducted, which showed that Tichitenji Farm was still leased to Elias Zakeyo Kaphwiti Banda. Acting on this information, the Defendants instructed Messrs Knight and Knight to write to the Claimant, who was then in possession of the land, requesting that possession be relinquished. In response, the Claimant’s lawyers, Messrs Mvalo and Company, asserted that the Claimant was the lawful owner of the land and attached a lease allegedly granted to the Claimant in 1982, which, according to Tapiwa, did not have a deed plan attached. 21. Tapiwa further testified that when the Defendants presented the Claimant’s lease document to the Regional Commissioner for Lands, they were informed that the document was not valid on the basis that one piece of land could not lawfully be leased to two different persons at the same time. According to her evidence, the Defendants were advised that the lease which remained valid was that of Elias Zakeyo Kaphwiti Banda. It was after receiving this information that the Defendants decided to take possession of Tichitenji Farm. 22. According to Tapiwa, on 21st November 2021, the Defendants entered the land peacefully. She testified that no structures were destroyed and that the buildings on the land had Page | 7 originally been constructed by her father. She stated that the buildings were merely sealed to avoid allegations of removal of property. Tapiwa expressed the view that the Defendants’ actions did not amount to trespass, as the land was leased to her father, and that the Claimant’s title was invalid because it had been issued over land that was already subject to an existing lease. 23. The Defendants argue that the Claimant’s alleged title is fatally defective. They point out that although the Claimant asserts that she was granted a lease effective from 1st April 1978, her own evidence shows that the lease was executed on 11th May 1982 and only registered on 20th November 1989. The Defendants submit that this delay in registration is not a mere administrative irregularity but a fundamental breach of the Deeds Registration Act, which requires registrable instruments to be registered within the prescribed statutory period. They argue that failure to comply with this requirement renders the instrument null and void. 24. In support of this argument, the Defendants rely on the authority of Rajab Karim v The Attorney General [2005] MLR 74, where the court held that non-compliance with mandatory registration provisions renders an instrument ineffective in law. They submit that late registration does not cure a defect that arises from failure to register within the statutory period and that the Claimant’s lease cannot therefore confer a valid legal interest. 25. The Defendants further contend that the Claimant’s title is invalid on the basis of the doctrine of nemo dat quod non habet. They argue that the Government lacked the legal capacity to grant the lease to the Claimant because the earlier lease to Elias Zakeyo Kaphwiti Banda had never been lawfully extinguished. They argue, one cannot give what one does not have, and the Government could not validly re-grant land that was already subject to a subsisting lease. In this regard, the Defendants rely on the decision in Puma Energy Malawi Limited v Malawi Energy Regulatory Authority & Another [2017] MWHC 470, where the High Court reaffirmed the applicability of the nemo dat principle in Malawian law. Page | 8 25. The Defendants also rely on the principle of priority of registration, submitting that where competing interests exist, the interest first registered in time takes precedence. They argue that the 1968 lease in favour of Elias Banda was registered long before the Claimant’s lease and that, in the absence of fraud or lawful cancellation, that earlier registered interest must prevail. 26. With respect to the actions complained of as trespass, the Defendants deny that their entry onto the land was unlawful. They contend that as the lawful holders of the superior title, they were entitled to take possession of their property. In the alternative, they argue that the Claimant failed to prove exclusive possession and failed to identify with precision the acts constituting trespass. 27. The Defendants also challenge the Claimant’s reliance on limitation and acquiescence. They argue that limitation cannot be used as a sword to validate an otherwise void title and that time does not run in favour of a person holding land under a defective instrument. They submit that their delay in asserting physical possession does not amount to abandonment of a subsisting registered lease and that the Claimant cannot rely on the Limitation Act to defeat a superior title. THE CASE OF THE 1ST DEFENDANT 28. The 1st Defendant, testified that he is the reigning Traditional Authority for Kawere Village, having assumed that role in 2017, and that he has customary responsibility for land administration within his jurisdiction. He explained that Elias Zakeyo Kaphwiti Banda came to Kawere Village in or about 1966 seeking land for cultivation and was allocated a substantial piece of customary land measuring approximately 583.777 acres. According to the 1st Defendant, this allocation was made in accordance with customary land practices, and the land later became known as Tichitenji Estate. 29. The 1st Defendant testified that in or around 1968, Elias Banda processed lease documents in respect of the land that had been allocated to him, and that the boundaries of the land were demarcated by beacons. He stated that Elias Banda, his relatives, and workers resided Page | 9 and worked on the estate, and that Tichitenji Estate was surrounded by customary land belonging to the local community. 30. The 1st Defendant further testified that in or around 1972, the late former President, Dr Hastings Kamuzu Banda, forcibly took over Tichitenji Estate, and chased out Elias Banda’s relatives and workers. He stated that this takeover occurred during the one-party era and that neither the chiefs nor the affected family were able to resist or challenge the action due to the prevailing political environment. 31. The 1st Defendant testified that after taking over Tichitenji Estate, Dr Hastings Kamuzu Banda also encroached onto the surrounding customary land, which had not formed part of the original land allocated to Elias Banda. He explained that this encroachment went unchallenged at the time because of the political circumstances. Following the change of government and the death of Dr Banda, the 1st Defendant and other traditional leaders sought to engage the Claimant, who was then in possession of the estate, to recover the customary land that had been encroached upon. According to the 1st Defendant, these efforts were unsuccessful, as the Claimant did not cooperate. 32. The 1st Defendant testified that in or around 2019, a formal letter was written to the Claimant requesting the return of the customary land, but no response was received. The matter was then reported to the District Commissioner for Mchinji, who convened a meeting involving the parties. The Claimant did not attend the meeting. The District Commissioner subsequently wrote to the Estate Manager of Chalimbana Estate on 27 January 2020, informing him of a decision that the customary land which had been encroached upon should be returned to the Traditional Authority. Following this decision, the 1st Defendant took control of the customary land and began allocating it to members of the community who were landless. 33. According to the 1st Defendant, it was in this context that he was served in 2020 with an injunction restraining him from encroaching on the Claimant’s land, together with summons in which the Claimant asserted leasehold ownership over Tichitenji Estate, measuring 583.777 acres. The 1st Defendant testified that, to his knowledge, Tichitenji Page | 10 Estate is the same land that was allocated to Elias Zakeyo Kaphwiti Banda. He stated that if a separate lease exists in respect of Tichitenji Estate, such a lease was obtained unlawfully and without consultation with the relevant traditional authorities, including T/A Kawere. 34. The 1st Defendant further testified that, in his capacity as Traditional Authority, he is aware of land allocations within his area and that, according to his records and knowledge, the Claimant was never allocated land in Kawere Village. He stated that the Claimant took over occupation of Tichitenji Estate after it had been forcibly taken from Elias Banda during the one-party era. On this basis, the 1st Defendant prays for the cancellation of the lease allegedly granted to the Claimant over what is referred to as Chalimbana Estate. 35. In conclusion, the Defendants’ case is that the Claimant’s alleged lease was irregularly granted, unlawfully registered, and incapable of defeating the earlier lease in favour of Elias Zakeyo Kaphwiti Banda. They contend that the Claimant has failed to establish a valid root of title and that her claim for trespass and injunctive relief must fail. The Defendants accordingly pray that the Claimant’s action be dismissed with costs. THE CASE OF THE THIRD PARTY 36. The Third Party was joined to these proceedings in its capacity as the public authority responsible for the administration of land, the granting of leases, and the maintenance of land registration records in Malawi. Its participation in the matter is confined to explaining the historical sequence of leasehold interests over the land in dispute and defending the lawfulness of the administrative processes undertaken by the Ministry of Lands. The Third Party does not claim ownership of the land, nor does it assert possession, but seeks to demonstrate that it acted within its statutory mandate at all material times. 37. In support of its position, the Third Party presented a single witness, Mr Yohane Dzowa, who testified before the Court in his capacity as Deputy Director in the Ministry of Lands. Mr Dzowa explained that, according to Ministry records, the Malawi Government initially granted a 99-year lease over Tichitenji Farm to Elias Zakeyo Kaphwiti Banda, commencing on 1 April 1967. He testified that while certain records relating to the subsequent transfer Page | 11 of the land from Elias Banda could not be located, this was attributable to the destruction of parts of the Deeds Register in a fire that occurred in May 2023. He stated, however, that notwithstanding this loss, other official documentation remained available and confirmed the subsequent history of the land. 38. Mr Dzowa testified that the land was subsequently leased on 1 November 1972 to Dr Hastings Kamuzu Banda for a similar term of 99 years, as evidenced by a lease produced by the Claimant. He further testified that Dr Kamuzu Banda voluntarily surrendered his lease on 31 March 1978, as demonstrated by a Deed of Surrender contained in the trial bundle. According to the Third Party, upon this surrender, the land reverted to the Government of Malawi as lessor and thereby became available for reallocation in accordance with the law. Mr Dzowa stated that following this reversion, the Ministry of Lands granted a 99-year lease to Cecilia Tamanda Kadzamira with effect from 1 April 1978, and that she has held the leasehold title ever since. He maintained that each step in this sequence was undertaken lawfully and in accordance with the applicable statutes. 39. The Third Party’s case is that the Ministry of Lands acted properly and within its statutory powers throughout the grant, surrender, and regrant of the lease. It relies on the provisions of the Registered Land Act [Chapter 58:01], particularly section 29A(2), which provides that a certificate of lease constitutes prima facie evidence of the matters contained therein and that the land or lease remains subject to all entries in the land register, whether or not reflected on the certificate itself. The Third Party explains that this statutory scheme strikes a balance between certainty of title and the ability of courts to examine the underlying register where disputes arise. 40. The Third Party further explains that the law places the burden of proof on the party alleging wrongdoing or irregularity. Relying on the principle restated by the Supreme Court of Appeal in Commercial Bank of Malawi v Mhango, the Third Party contends that the Defendant, having asserted a claim for indemnity against the Ministry of Lands, bears the onus of proving that the Ministry committed a wrongful act or omission in issuing the lease to the Claimant and that such wrongdoing caused the Defendant’s alleged loss. The Third Page | 12 Party maintains that this burden is substantive and must be discharged on a balance of probabilities, as articulated in Msachi v Attorney General. 41. According to the Third Party, the Defendant failed to adduce credible evidence of any irregularity, fraud, or negligence on the part of the Ministry. Acknowledging the unfortunate loss of some historical records due to the 2023 fire, the Third Party maintains that sufficient documentary and oral evidence was produced to demonstrate that the lease to the Claimant was lawfully issued following the express surrender of the previous lease. The Third Party explains that surrender of a lease is governed by section 56 of the Registered Land Act, which prescribes the procedure by which a lease may be brought to an end and the land returned to the lessor. It maintains that this procedure was duly followed in respect of Dr Kamuzu Banda’s lease, as evidenced by the Deed of Surrender dated 31 March 1978. 42. The Third Party further relies on established legal principles concerning surrender and regrant, noting that surrender entails the yielding up of a leasehold estate to the reversioner, thereby extinguishing the lease and restoring full title to the lessor. It contends that once the surrender occurred, the Government of Malawi was legally entitled to grant a fresh lease to the Claimant. In this regard, the Third Party’s position is that the lease issued to Cecilia Tamanda Kadzamira is supported by valid documentation and enjoys the statutory presumption of regularity. 43. With respect to the Defendant’s claim for indemnity, the Third Party denies any legal or contractual obligation to indemnify the Defendant. It maintains that no evidence was produced of any agreement or statutory duty requiring the Ministry to compensate the Defendant in respect of the Claimant’s claim. The Third Party further contends that the indemnity claim is barred by the Limitations Act, having been brought outside the prescribed statutory timeframes, and therefore discloses no reasonable cause of action. 44. The Third Party also distances itself from the acts complained of as trespass, stating that it neither entered nor occupied the land and that its involvement is confined to administrative functions. It maintains that any dispute concerning possession, occupation, or competing Page | 13 private claims to the land falls to be resolved by the Court and does not give rise to liability on the part of the Ministry. 45. In summary, the Third Party’s case is that the Ministry of Lands exercised its statutory powers lawfully and transparently in relation to the land in dispute. It maintains that the surrender of the lease by Dr Hastings Kamuzu Banda was valid, that the subsequent regrant to the Claimant was lawfully made, and that the certificate of lease issued to the Claimant remains prima facie valid and unimpeached. The Third Party contends that the Defendant failed to discharge the burden of proving any wrongdoing on the part of the Ministry and that the claim for indemnity is both factually unsupported and legally unsustainable. It accordingly prays that the claim against the Third Party be dismissed with costs. Issues for Determination 46. Having regard to the pleadings, the evidence adduced, and the submissions of all parties, this Court is called upon to determine the following issues: 1. Whether the question of ownership of Tichitenji Farm is barred by the doctrine of res judicata. 2. Whether, in an action founded on trespass, proof of possession alone is sufficient, or whether the Court must consider competing claims of title and a better right to possession. 3. Whether the Claimant established a valid and enforceable leasehold title to Tichitenji Farm. 4. Whether the estate of Elias Zakeyo Kaphwiti Banda holds a superior title by virtue of prior registration under the Deeds Registration Act. 5. Whether the Claimant can rely on limitation, acquiescence, or delay to defeat the Defendants’ reliance on superior title. 6. Whether the Defendants’ entry onto the land was legally justifiable in light of their asserted superior right to possession. 7. Whether the Defendants were required to raise their challenge by way of counterclaim, or whether the matters were properly raised in defence under Order 7 rule 14. 8. Whether the 1st Defendant’s claim concerning encroachment onto customary land is established, and what consequential orders are appropriate. 9. Whether the 2nd and 3rd Defendants are entitled to indemnity from the Third Party. Page | 14 LAW AND ANALYSIS The Burden of Proof 47. Quoting Mwanyunga J in Sawerengela v Pride Malawi Limited [2008] MLR 301 (HC) at page 337 as he cited Joseph Constantine Steamship Line v Imperial Smelting Corporation Limited [1942] AC 154, at 174; “A well settled principle of ancient application is “ei incumbit probation qui dicot not qui negat.” This essentially means that the burden of proof lies on the party alleging a fact of which correlative rule is that he who asserts a matter or, fact must prove it but he who denies need not prove it. The party on whom lies the burden must adduce evidence of the disputed facts or fail in his contention. Simply put, he who alleges must prove. The burden of proof is intimately connected with the standard or quantum of proof. When it had been ascertained where the burden of proof lies, it is necessary to know what evidence is required to discharge it. In contested actions, a party succeeds whose evidence establishes a preponderance of probability or a balance of probability. Thus, the burden of proof rests upon the party who substantially asserts the affirmative of the issue. The Standard of Proof 48. It is trite that in civil cases, the standard of proof is on a balance of probabilities. Citing with approval, the Malawi Supreme Court in the case of Chipiliro Banda v Southern Bottlers Ltd [2014] MLR 72 (SCA) stated; “As to what amounts to a balance of probabilities the court below made reference, as did the appellant, to the case of Miller v Minister of Pensions [1947] 2 All ER 372 at 374. Denning J said: That degree is well settled. It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more than probable than not’ the burden is discharged but if the probabilities are equal, it is not.” 49. As such this court proceeds on these two foundational tenets, that each party asserting the affirmative must prove to this Court to a reasonable degree of probability, that their assertion is more likely to be true. Page | 15 Whether or not this matter is res judicata by virtue of the decision in Judicial Review Case No. 25 of 2020 50. The Claimant contends that the question of ownership of Tichitenji Farm has already been conclusively determined by the High Court in The State (on Application of Mama Cecelia Tamanda Kadzamira) v District Commissioner for Mchinji, Judicial Review Case No. 25 of 2020, and that the present proceedings are Functus officio therefore barred. On this basis, the Claimant urges the Court to decline any further inquiry into issues touching on title or entitlement to the land. 51. The Defendants resist this contention and submit that the plea of res judicata is not available to the Claimant in the circumstances of this case, both procedurally and substantively. 52. The doctrines of res judicata and functus officio are closely related, however, they are noticeably different. On functus officio in the case of Phiri v Kachere Civil Cause No. 282 of 2016 (Unreported) in which Kenyatta Nyirenda, J. had this to say: “Functus officio is a common law rule that prohibits, in the absence of statutory authority, the re-opening of a matter before the same court, tribunal or other statutory actor which rendered the final decision. Once a validly-made final determination has been issued, the court is powerless to change it, other than to correct obvious technical or clerical errors, or unless specifically authorised to do so by statute or regulation. 53. In the case of FMS Limited vs. Kanengo Tobacco Processors Limited, Commercial Cause Number 418 of 2019 (Unreported), Justice Alide described what constitues res judicata as follows: “Res Judicata may in simple terms be referred to as a principle of law that stops a matter that has previously been brought before a court of law and adjudicated upon to be re- opened and pursued by the same parties in another court of law.” 54. The distinction between the two doctrines lies principally in their scope and operation. Functus officio is concerned with the authority of the same court or decision-maker to Page | 16 revisit or alter its own final decision once it has been rendered; it is a rule directed inward, preserving the finality of decisions within the same proceedings. Res judicata, on the other hand, operates outwardly and is concerned with subsequent proceedings: it bars parties from re-litigating, before another court or in fresh proceedings, a matter that has already been finally determined on the merits by a court of competent jurisdiction. Whereas functus officio speaks to the exhaustion of jurisdiction by the decision-maker who delivered the judgment, res judicata speaks to the preclusive effect of that judgment in later litigation involving the same parties or their privies and the same subject matter. In the present context, this Court is not being asked to revisit or vary its own earlier decision, but rather to determine whether a previous judgment precludes the litigation of issues now before it. The appropriate analytical doctrine is therefore that of res judicata, not functus officio, and the matter must be tested against the established requirements of that doctrine. 55. As is has been observed by the Defendants, that res judicata is a special plea which must be specifically pleaded. It is settled law that parties are bound by their pleadings, and issues not pleaded cannot be introduced through evidence or submissions. In the present matter, the Defendants submit, and the record reflects, that res judicata was not pleaded by the Claimant. This omission is significant, as it deprives the Defendants of the opportunity to meet the plea squarely at the pleading stage and renders its late invocation procedurally irregular. 56. Even assuming, however, that the issue were properly before the Court, the substantive requirements for res judicata must still be satisfied. In the case of Bishop Abraham Simama and another vs. Puma Energy (Malawi) (Limited), Commercial Cause Number 90 of 2018 (Unreported), Justice Manda stated as follows: The operation of the principle of res judicata requires the court to look at the competing interests of the parties, namely the constitutional right of the plaintiff to access the courts and the opposing right of the defendant to be protected from a multiplicity of suits from an opponent. This is the principle as set down by Keane J. in MeCauley v. McDermott (1997) 2 ILRM 486 at p. 498:- Page | 17 In cases of this nature, the courts are concerned with achieving a balance between two principles. A party should not be deprived of his or her constitutional right of access to the courts by the doctrine of res judicata where injustice might result, as by treating a party as bound by a determination against his or her interests in proceedings over which he or she had no control. Res judicata must be applied in all its severity, however, where to do otherwise would be to permit a party bound by an earlier judgment to seek to escape from it, in defiance of the principles that there should ultimately be an end to all litigation and that the citizen must not be troubled gain by a law suit which has already been decided" Further, it has also been noted that in applying the principle of res judicata, determinations should be made on case-by-case basis. Further still and as aptly noted by Hardiman J. in Ahmed v. The Medical Council (2004) 1 ILRM 372 at p. 386, "Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of it is exercising his right of access to the Courts for the determination of his civil rights or liabilities." 57. In his comment on how to apply the rule of res judicata Justice Nyirenda SC, JA, in the Supreme Court decision of Malawi Communications Regulatory Authority (MACRA) -vs- Joy Radio Limited MSCA Civil Appeal Cause Number 59/2009 (Unreported) stated as follows: “Chitty on Contracts (General Principles) Twenty Seventh Edition para. 25-011 identifies three requirements that must be satisfied for a plea of estoppel per rem judicatam to succeed: First there must have been a final and conclusive judgment on merits by a court of competent jurisdiction in the earlier proceedings; secondly, there must be identity of parties in the two sets of proceedings or else the existence of probity between the respective plaintiffs or defendants in the earlier proceedings and those in the later proceedings; thirdly, there must be identity of subject matter in the two proceedings.” 58. Applying these principles to the present case, this Court is not satisfied that the first requirement has been met. The judgment relied upon by the Claimant, exhibited as CTK 4 Page | 18 and titled “Final Judgment,” arose from judicial review proceedings and was entered as a default judgment. The opening paragraph of that judgment expressly records that it was entered “it being proved that the respondent has defaulted in defending the judicial review application.” By its nature, a default judgment is not a determination on the merits following contested proceedings and judicial evaluation of evidence and argument. The absence of a merits-based adjudication is fatal to a plea of res judicata, which is premised on the idea that the matter has already been fully heard and finally decided. 59. The second requirement, identity of parties or privity, is also not satisfied. The judicial review proceedings were instituted as The State (on Application of Mama Cecelia Tamanda Kadzamira) v District Commissioner for Mchinji. The present proceedings, by contrast, are between Mama Cecelia Tamanda Kadzamira as Claimant and Sub-Traditional Authority Kawere, members of the Kaphwiti Banda family, other individuals, and the Attorney General (Ministry of Lands) as Defendants and Third Party. The District Commissioner for Mchinji, who was the respondent in the judicial review proceedings, is not a party to the present action. Equally, the Defendants in this matter were not parties to, nor shown to be privies of parties to, the earlier judicial review proceedings. On this basis alone, the plea of res judicata cannot be sustained. 60. The Defendants further submit, and the Court considers it relevant, that there is an inherent inconsistency in the Claimant’s reliance on res judicata. The judicial review proceedings and the present action were both initiated by the Claimant. If the judicial review judgment conclusively determined the issues now before the Court, it is difficult to reconcile why the Claimant deemed it necessary to commence these proceedings rather than enforce the earlier judgment, or alternatively, why she did not discontinue the present action once the judicial review was concluded. While this consideration is not determinative on its own, it reinforces the conclusion that the earlier proceedings did not finally and conclusively resolve the matters now in dispute. 61. In light of the foregoing, the Court is unable to find that the doctrine of res judicata applies to bar the present proceedings. The judgment in Judicial Review Case No. 25 of 2020 was a default judgment, not a determination on the merits; the parties in the two proceedings Page | 19 are not identical, nor are they privies; and the procedural foundation for raising res judicata is absent. The Claimant’s contention on this issue therefore fails. Whether, in an action founded on trespass, proof of possession alone is sufficient, or whether the Court must consider competing claims of title and a better right to possession. 62. The starting point in an action for trespass is the nature of the tort itself. Trespass to land is traditionally classified as a possessory wrong. The gravamen of the cause of action is the unlawful interference with land in the possession of another. Accordingly, the general rule is that the person whose possession is violated is the proper plaintiff, and proof of ownership is not, in every case, a prerequisite. 63. This principle was carefully examined by the High Court in Chitakale Plantations Ltd v Mrs Mary Woodworth and Another [2009] MLR 49. In that case, the Court reviewed a line of common law authorities, including Canvey Island Commissioners v Preedy [1922] 1 Ch 179 and Port of London Authority v Canvey Island Commissioners [1932] 1 Ch 446, which affirm that possession, rather than ownership, ordinarily founds an action in trespass. The Court further considered Hemmings v Stoke Poges Golf Club Ltd [1920] 1 KB 720, where it was observed that an owner of land with a right of entry, who enters by force and evicts an occupier in wrongful possession, is not liable in damages for trespass. Therefore, the position of the law is that possession, while central, is not absolute; it must be weighed against competing claims where a superior right to possession is asserted. 64. Trespass to land is fundamentally a possessory tort. The law’s primary concern is the protection of possession against unlawful interference, and for that reason the person in possession is ordinarily entitled to bring an action in trespass without the need to prove absolute ownership. This is a long-standing common position, see the cases of; Canvey Island Commissioners v Preedy [1922] 1 Ch 179 and Port of London Authority v Canvey Island Commissioners [1932] 1 Ch 446. Possession, rather than title, is generally sufficient to found a claim in trespass. Page | 20 65. That said, possession is not an absolute shield. The law has consistently recognised that where a person with a superior title or a better right to possession enters land in order to assert that right, such entry does not stand on the same footing as an intrusion by a stranger. In Hemmings v Stoke Poges Golf Club Ltd [1920] 1 KB 720, it was made clear that an owner of land with a right of entry, who enters and evicts an occupier in wrongful possession, is not liable in damages for trespass. The protection afforded by possession yields where a superior entitlement is lawfully asserted. 66. Present possessory title remains essential for maintaining an action in trespass, as held in Wuta-Ofesi v Danquah (1961) 3 All ER 596. However, the nature of that possessory title is relative. In Mortensen v Pihl Rorbyg Joint Venture [2004] WSSC 5 (11 May 2004), even a person without registered title, including a squatter, may maintain an action for trespass against a stranger, provided that his possession is disturbed without lawful justification. The corollary is that such possessory protection does not prevail against a party who can demonstrate a better right to possession. 67. This relativity of possession is further reinforced by the principle that a defendant cannot ordinarily rely on jus tertii, the rights of a third party, to defeat a claimant’s possessory title, unless the defendant acted under the authority of that third party. The law therefore draws a clear distinction between an entry founded on no right at all and one grounded in an asserted entitlement. In this context, the common law rule remains applicable: a claimant must recover on the strength of his own title and not on the weakness of the defendant’s. See The Laws of England, The Earl of Halsbury (1912) Volume 24 paragraph 609, Bradshaw v. Ashley, 180 U. S. 59 (1901), also see; Dawkins v Penrhyn (Lord) (1878) 4 App Cas 51. A person out of possession who seeks to recover land must show a title or right that is prima facie good against the world. 68. These principles apply irrespective of whether the land in question is registered or unregistered, though the distinction between the two systems is not without significance. In systems where title is not absolute, possession often assumes heightened importance. As recognised in Hongkong Kam Lan Koon Ltd v Realray Investment Ltd [2007] HKCFI 1037, the person best entitled to land is the person with the best right to possession, and Page | 21 even a person in wrongful possession may exclude all others save one who can demonstrate a superior right. 69. Applying these principles to the present matter, the Defendants do not present themselves as mere interlopers. Their entry onto the land is asserted to have been done pursuant to a claim of right grounded in prior allocation and entitlement. In such circumstances, the mere fact of the Claimant’s occupation cannot, of itself, be decisive. Where a party can establish a superior title or a better right to possession, the law permits that party to enter land for the purpose of asserting that right and effecting dispossession, provided the entry is grounded in lawful entitlement and not in arbitrary force. The Defendants’ access to the land must therefore be assessed within this lens, which recognises the primacy of a superior right to possession over bare possession alone. Naturally, the next issue that must be determined is whether the Defendants truly have a superior title. Title to Land 70. The Claimant’s case on title is founded on a lease registered as a deed in the Deed Registry under deed number 61705 issued by the Third Party. She asserts that the land known as Tichitenji Farm was lawfully leased to her following the surrender of a prior lease held by Dr Hastings Kamuzu Banda. This was also confirmed by the Third Party, who put into evidence that the Malawi Government initially granted a 99-year lease over Tichitenji Farm to Elias Zakeyo Kaphwiti Banda commencing on 1 April 1967. The land was subsequently leased to Dr Hastings Kamuzu Banda on 1 November 1972. Dr Banda thereafter surrendered his lease by a deed of surrender dated 31 March 1978, whereupon the land reverted to the Government of Malawi. Following that surrender, the Ministry of Lands granted a fresh lease to the Claimant, effective 1 April 1978, for a term of 99 years. The Claimant maintains that this sequence of events complied with the law, giving her clean title to the farm. 71. In addition, the Claimant argues that any historical grievances relating to earlier allocations or dispossessions were resolved through lawful governmental action, including the surrender and re-grant of leases. She submits that the passage of time, coupled with her Page | 22 long and uninterrupted possession of the land, reinforces the legitimacy of her title and militates against reopening settled administrative acts. The Claimant maintains that the surviving documentation and official testimony are sufficient to sustain the validity of her lease. 73. Interestingly, the Third Party argues on the statutory presumption of regularity attaching to registered instruments, Counsel even went to great lengths examining the provisions of the Registered Land Act in authority to their argument. What is surprising is that they rely on Section 29A (2) of the Registered Land Act [Chapter 58:01] which provides that a certificate of lease constitutes prima facie evidence of the matters contained therein, subject to entries in the register. On this basis, the Third Party submits that the Claimant’s certificate of lease enjoys a strong presumption of validity, and that the burden lies on the Defendants to adduce cogent evidence of illegality, irregularity, or fraud sufficient to displace that presumption. In their submissions, they contend that no such evidence has been produced. 73. The Defendants do not dispute that a lease document exists in the Claimant’s name. Their challenge is directed at the legitimacy and legal efficacy of that title. Central to their case is the assertion that the original lease granted to Elias Zakeyo Kaphwiti Banda in 1967 was never lawfully transferred or extinguished prior to the purported grant of a lease to the Claimant. 74. The Defendants rely on the testimony of the 3rd Defendant and that of Tapiwa Kaphwiti Banda, who explained how, in 2014, they attended the Regional Commissioner of Lands office in Lilongwe to obtain valuation reports for estate administration purposes. During that process, an officer of the Ministry of Lands informed them that the records indicated that Tichitenji Farm was still registered in the name of Elias Zakeyo Kaphwiti Banda. This information was unexpected, as the family had previously believed that ownership of the land had changed. An official search of the Deeds Register subsequently confirmed that the lease remained in the name of the late Elias Banda. In defending this action, they rely on the principle of prior registration to assert better title over the disputed land. Page | 23 75. On the issue of title to land, the starting point is clear. The applicable law with regards to this case is not the Registered Land Act, rather, it is the Deeds Registration Act [Chapter 58:02]. It is rather sad to see the Counsel for the Third Party cite the wrong law. Simply, this Court cannot proceed to analyse their submissions with regards to title to land under the circumstances. Relying on the wrong statute renders the submissions, or at a minimum, the argument a nullity. Such an argument is unfit and improper at law. 76. To that end, section 8 of the Deeds Registration Act provides; “8. All charges upon land or any interest in land whether by way of mortgage or otherwise and whether equitable or otherwise and all transfers, assignments or leases of land shall take priority according to the date of registration. All priorities given by this Act shall have full effect in all courts except in cases of actual fraud and all persons claiming thereunder any legal or equitable interests shall be entitled to corresponding priorities and no person shall lose any such priority merely in consequence of his having been affected with actual or constructive notice of a prior unregistered document except in cases of actual fraud.” [emphasis supplied] 77. The law is unambiguous; it provides that where there is the existence of competing valid leases the law resolves the conflict through priority of registration. Section 8 of the Deeds Registration Act is categorical: all transfers and leases of land take priority according to the date of registration. 78. On the evidence, the Defendant’s lease was registered in December 1968, whereas the Claimant’s lease was registered in November 1989. Priority therefore lies unequivocally with the earlier registered lease. Section 8 further mandates that such priority shall have full effect in all cases except fraud, none of which has been alleged or proved against the Defendants. 79. This comes assuming that both leases are valid, however, the Defendant raises questions regarding the validity of the Claimant’s lease. Page | 24 Validity of the Claimant’s Title Failure to register the lease within the statutory period 80. In assessing the validity of the Claimant’s title, the starting point is the manner and timing of registration. The Claimant’s entire case on title rests on the lease exhibited as CTK 1, which the Claimant herself tendered and adopted as evidence in chief. That document reveals, on its face, two critical and undisputed facts: first, that the lease was executed on 11 May 1982; and secondly, that it was only registered on 20 November 1989. These facts were confirmed by the Claimant during cross-examination and are borne out by the registration stamp appearing on the cover page of the lease. 81. The legal consequence of this delay is governed squarely by the Deeds Registration Act. Section 7(1)(a) of the Act provides: “7.— (1) In the case of any deed or document the registration of which is declared by this Act to be compulsory— (a) where such deed or document is executed after the commencement of this Act the same shall be presented for registration within three months from the date of its execution if executed within Malaŵi;” 82. The provision imposes a mandatory obligation that any deed whose registration is compulsory must be presented for registration within three months from the date of execution, where executed within Malawi. This provision is not merely procedural; it is substantive in nature and goes to the very validity of the instrument. 83. The Claimant was aware of this statutory requirement and acknowledged, under cross- examination, that she knew the legal consequences of failing to register a lease within the prescribed time. Despite this, no explanation; legal, factual, or evidential, was placed before this Court to justify or excuse the seven-year delay. No re-examination was undertaken to clarify this discrepancy. This Court is therefore left with a clear statutory breach and no mitigating explanation. Page | 25 84. Crucially, the Act expressly forecloses any argument that late registration cures the defect. Section 22 of the Act provides in unambiguous terms that registration does not cure any defect in a document nor confer upon it any validity which it would not otherwise have had. This position is reinforced by Section 28, which stipulates that the non-registration of a document whose registration is compulsory renders that document null and void. 85. The combined effect of these provisions is decisive: what the law demands is not registration simpliciter, but registration within the stipulated time. A document executed in breach of Section 7 does not acquire validity merely because it is eventually registered. To hold otherwise would render the statutory time limit meaningless. 86. This position has been affirmed by Chikopa J, (as he then was) in Richard Rajab Karim t/a Pawooh Timber Carpentry and Joinery v Indebank and the Attorney General Commercial Case No. 22 of 2012 (Unreported)where the Court held that late registration does not retrieve the situation and that a deed registered outside the statutory period remains null and void. The reasoning in that case applies with full force here. The Claimant’s lease, having been registered seven years after execution, was void ab initio and incapable of conferring any proprietary rights. 87. Once this conclusion is reached, it follows inexorably that the Claimant’s title cannot found an action. One cannot assert possessory or proprietary rights derived from a document which the law itself treats as legally non-existent. 88. Even assuming, for the sake of covering all bases, that the defect of late registration could be overlooked (which it cannot), the Claimant’s title faces a further and more fundamental difficulty rooted in the nemo dat quod non habet principle. The rule is elementary but uncompromising: no person can give what they do not have. 89. The Claimant’s case is that she acquired the lease after Dr Hastings Kamuzu Banda surrendered his interest back to the Minister responsible for lands. That surrender is said to be evidenced by Exhibit CTK 2. However, the document itself tells a different story. It bears no registration stamp, no deed number, and no indication whatsoever that it was ever presented for registration. Page | 26 90. Under Section 6 of the Deeds Registration Act, any instrument affecting an interest in land is subject to compulsory registration. The failure to register such an instrument attracts the same consequence stipulated under Section 28: it is rendered null and void. An unregistered deed of surrender is therefore legally incapable of transferring any interest back to the Minister. 91. The logical consequence is unavoidable. If the surrender was null and void, the land never reverted to Government. Dr Hastings Kamuzu Banda remained the lessee in law, and the Minister had no interest capable of being granted to the Claimant. In those circumstances, the Minister acted without legal capacity when purporting to issue a lease to her. 92. The nemo dat principle has been repeatedly affirmed in regional jurisprudence, including A. M. G. Global Trust Limited v The Administrator General and Caladams Properties Limited Appeal Number 25/2020 (unreported), where it was held that a transferee cannot acquire good title from a person who had none to pass. The same reasoning applies here: a lease granted by a Minister who had no title or interest to convey is necessarily void. 93. An exception to this rule was reiterated in the case of Elias Sawerengera v Caroline Phiso Luwayo Civil Cause No. 17. Of 2007 (unreported) (2012), the court considered and applied the Transfer of Property Act, 1882 which is a statute of general application. The Court opined that under this Act there are some rights provided to the bona fide purchaser, who purchases the property under a defective title. The Court cited section 41 which provides that: “Where with the consent, express or implied of the person interested in immovable property, a person is the ostensible owner of such property and transfers the same under consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable case to ascertain that the transferor had had power to make the transfer in good faith.’’ BONA FIDE PURCHASER FOR VALUE OF A LEGAL ESTATE WITHOUT NOTICE Page | 27 94. The defence of purchaser of a legal estate for value without notice is an absolute, unqualified, unanswerable defence as propounded in Pilcher v Rawlins (1872) 7 Ch. App 259. It is an equitable defence which must be pleaded by the one setting it up. See CK Mwale & Anor v LNK Banda [2014] MLR 90 (SCA). 95. The Court in NBS Bank v Mkada & others [2011] MLR 233 (HC) held, to qualify as a bona fide purchaser for value without notice one must satisfy three requirements: that they must have given consideration in money or money's worth; they must have had no notice, actual or implied, of interests affecting title to the property and they will be bound by equitable interests of which they may in fact be ignorant but whose existence they would have discovered had they acted as a prudent person of business, placed in similar circumstances. See also the case of Selina Zainab Kankhulungo v Kettie Tiyanjane Kankhulungo and Another Civil Cause 48 of 2017 [2021] MWHC 189. 96. The Court in Kankhulungo v Kankhulungo & Another (supra) cited with approval the Zambian Supreme Court of Appeal decision in Joyce Ndavula Gondwe v Christine Zowolile Ngwira Appeal Case No. 37 of 2015, wherein the Court emphasized that: in purchasing real properties parties are expected to approach such transactions with much more serious inquiries to establish whether or not the property in question has encumbrances. Buying real property is not as casual as buying household goods or other personal property. 97. It was held in Regina Violet Chakanza v Zimwani Corporation Ltd & Others [2013] MLR 308 (HC) that a purchaser who makes no effort to discover whether the property is encumbered or not cannot be said to be a bona fide purchaser for value without notice. 98. The difficulty with the Claimant’s case is that they did not make an effort to discover whether or not the farm was encumbered, because if they did, they would have discovered that the Farm was legally registered to another person other than Dr Banda. However, this difficulty does not end there. Even her predecessor’s title is legally questionable. The evidence before the Court establishes that the Minister responsible for lands granted a 99- year lease over the same land to Elias Zakeyo Kaphwiti Banda, which was registered on Page | 28 18 December 1968. There is no evidence whatsoever that this lease was ever cancelled, surrendered, forfeited, or otherwise lawfully determined. 99. Despite this, the same Minister purported to grant the same land to Dr Hastings Kamuzu Banda in 1972. At that point in time, the Minister no longer had the power to grant title to the land, having already alienated it by way of a subsisting lease. The nemo dat rule therefore applies equally to this earlier transaction. A grant made in violation of an existing registered interest is incapable of conferring valid title. The defect in the Claimant’s title is not merely procedural or technical; it is structural. The root of title is tainted by successive violations of settled principles of law. 100. Viewed cumulatively, the Claimant’s title fails on multiple and independent grounds: late registration rendering it null and void; the nemo dat rule; defects at the root of title; and, in any event, lack of priority under the Deeds Registration Act. A claim in trespass cannot be sustained on such a foundation. The law does not protect possession derived from a void instrument, nor does it permit a party with an inferior or defective title to exclude a holder of a superior registered interest. Centrality of Pleadings 101. The Claimant asserts that the Defendants ought to have added a counterclaim in addition to the defence. Their reasoning is that the Defendants are claiming an “affirmative ask,” one which ought to be clearly defined as a counterclaim, otherwise, what they are doing is introducing “stealth pleadings.” 102. The Claimant’s reliance on the centrality of pleadings, is sound as a general proposition, however, it has been applied too rigidly and without due regard to the structure and purpose of the Courts (High Court) (Civil Procedure) Rules themselves. It is correct that parties are bound by their pleadings and that courts should not grant reliefs or determine issues that have not been properly raised. However, that principle does not support the contention that matters going to the legal sustainability of a claim can only be raised by way of a counterclaim. Page | 29 103. Under Order 7 rules 6 to 9 of the Courts (High Court) (Civil Procedure) Rules 2017, a defendant who disputes a pleaded fact is not only entitled but required to state what actually happened. A defence is therefore not confined to bare denials; it is a responsive pleading that must engage substantively with the claimant’s allegations. This is reinforced by Order 7 rule 14, which expressly provides that, in a defence or reply, a statement of case shall specifically mention any matter that makes another party’s claim or defence untenable, shows that a transaction is void or voidable, or raises a question of fact not arising out of a previous statement of case. 104. The effect of Order 7 rule 14 is critical. It provides: “14. In a defence or a reply, the statement of case shall specifically mention a matter that— (a) makes another party’s claim or defence untenable; (b) shows a transaction is void or voidable; or (c) raises a question of fact not arising out of a previous statement of case.” 105. It recognises that certain matters, particularly those which strike at the validity of the transaction or legal foundation upon which a claim rests, must be raised in a defence even though they may have far-reaching legal consequences. Issues such as the invalidity of a title deed, non-compliance with statutory registration requirements, lack of capacity on the part of the lessor, or the priority of an earlier registered interest are not collateral or extraneous matters. They go directly to whether the Claimant can, in law, maintain an action in trespass at all. These are classic examples of matters that “make another party’s claim untenable” or “show a transaction is void or voidable” within the meaning of Order 7 rule 14. 106. In that context, the Defendants were not obliged to bring a counterclaim in order to raise these matters. A counterclaim, as contemplated under Order 7 rules 15 and 16, is appropriate where a defendant seeks affirmative relief which could have been pursued in a separate action but is raised in the same proceedings for convenience and efficiency. By contrast, where a defendant’s averments are directed at defeating the claimant’s cause of Page | 30 action, explaining why the pleaded facts do not entitle the claimant to relief, or demonstrating that the claimant’s asserted rights are legally defective, those averments properly belong in a defence. 107. The Claimant’s characterisation of the Defendants’ pleadings as an “affirmative ask” misconceives the nature of defensive pleadings under the CPR. The Defendants did not introduce a new cause of action; they responded to the pleaded trespass claim by advancing facts and law which, if accepted, would necessarily result in its dismissal. Any declarations or conclusions that may flow from such findings are not granted because they were “asked for” in a counterclaim, but because they are the logical and legal consequence of resolving the dispute the Claimant herself placed before this Court. 108. To hold otherwise would undermine both the letter and spirit of the CPR. It would require defendants to either remain silent on matters that fatally undermine a claim or to bring counterclaims merely to preserve defensive arguments, an outcome inconsistent with the overriding objective of resolving disputes justly, proportionately, and efficiently. Order 7 rule 14 makes clear that the CPR does not countenance such artificial formalism. 109. Accordingly, it is agreed that the centrality of pleadings remains a foundational principle, however, it does not operate to exclude from consideration matters properly pleaded in a defence which demonstrate that the Claimant’s case is legally unsustainable. The Court is not being invited to stray beyond the pleadings; it is being asked to give effect to them. Limitation: Whether the Limitation Act Can Be Used to Bar a Defence 110. There is no dispute that the Limitation Act limits the time within which an action to recover land may be brought before a court. Sections 6 and 7 of the Act are explicit that an action to recover land must be commenced within twelve years from the date the right of action accrued. On the facts of this case, any affirmative claim by the Defendants or their predecessor in title to recover the land would plainly be statute-barred, the alleged dispossession having occurred in the early 1970s. Page | 31 111. However, the critical question raised by the Claimant’s argument is not whether an action to recover land is time-barred, but whether the Limitation Act can be invoked to prevent a defendant from relying on the same historical facts defensively. On a proper understanding of limitation law, the answer must be in the negative. 112. Statutes of limitation are procedural bars to the enforcement of stale claims; they do not extinguish title, nor do they operate to confer positive rights upon the party in possession. Their function is to bar the remedy, not to validate an otherwise defective claim. This distinction is fundamental. As a matter of long-standing principle, limitation operates as a shield, not as a spear. 113. The policy foundations of limitation statutes, as stated in the case of Cave v Robinson Jarvis & Rolf [2002] UKHL 18 and the classic statement of Best CJ in A’Court v Cross (1825) 3 Bing 329, are directed at protecting defendants from the injustice of being sued on stale claims. They are not designed to be weaponised by a claimant to prevent a defendant from resisting an action or asserting the true legal character of the facts placed before the court. To permit such use would invert both the purpose and logic of limitation law. 114. This understanding is consistent with the broader jurisprudence on limitation, which repeatedly emphasises that limitation statutes bar actions, not defences. As was observed in Wood v Elling Corp. 20 Cal. 3d 353, the right that limitation protects is the right to be free from unexpected enforcement of stale claims, not the right to insist that historical facts be treated as legally irrelevant when they arise incidentally or defensively. 115. In the present case, it is the Claimant who has invoked the jurisdiction of the Court. The Defendants have not brought an action to recover land; they are responding to a claim founded on trespass. In doing so, they are entitled to explain the factual and legal background to their presence on the land and to demonstrate why the Claimant’s asserted right to exclusive possession is unsustainable. To bar such a defence on the basis of limitation would be to allow the Claimant to use the Limitation Act as a sword, contrary to its purpose. Page | 32 116. The Claimant’s argument, taken to its logical conclusion, would produce an untenable result: that once limitation has run, a claimant may assert possession free from challenge, even where that possession is confronted by a superior title raised defensively. That is not, and has never been, the law. Limitation does not convert a defective or subordinate interest into an impregnable one merely because time has passed. 117. The authorities relied upon by the Claimant themselves underscore this point. Cases such as Ali Mahomed Waka v Attorney General Civil Cause No. 1855 of 1993 (unreported) and Gwede v Attorney General [2002 -2003] MLR 59 confirm that limitation bars the institution of proceedings and that courts lack jurisdiction to extend limitation periods beyond what the statute allows. They do not suggest that limitation extinguishes underlying rights or disables a defendant from resisting a claim when sued. 118. Accordingly, while it is accepted that any affirmative action by the Defendants to recover the land would be statute-barred, that fact does not prevent them from relying on the same historical facts as a defence to the Claimant’s action. The Limitation Act cannot be used to shut out a defence; it only limits the bringing of an action. To hold otherwise would subvert both the policy of limitation statutes and the proper administration of justice. 119. In short, the Claimant seeks to achieve indirectly what limitation law forbids directly: to obtain, through the mechanism of trespass proceedings, a level of security and exclusivity that the law does not confer merely by the passage of time. That invitation should be declined. Conclusion 120. Having carefully considered the pleadings, the evidence on record, and the applicable law, this Court is satisfied that the matter turns not merely on possession, but on the validity and priority of the competing titles that support the respective claims of the parties. 121. On the evidence before this Court, the Claimant’s claim in trespass cannot be sustained. This Court has found that the Claimant’s title is affected by fundamental legal defects, including non-compliance with the mandatory requirements of the Deeds Registration Act, Page | 33 as well as infirmities arising from the application of the nemo dat quod non habet principle. These defects go to the root of the Claimant’s asserted right to exclusive possession and cannot be cured by the mere passage of time or by reliance on the presumptions of regularity. 122. Conversely, the evidence establishes that the lease held by the estate of the late Elias Zakeyu Kaphwiti Banda was registered earlier in time and has never been lawfully cancelled, surrendered, or forfeited. By operation of section 8 of the Deeds Registration Act, that lease enjoys priority. This Court is therefore satisfied that, as between the Claimant and the 2nd and 3rd Defendants, the estate of the late Elias Banda holds the superior title to the land commonly referred to as Tichitenji Estate. 123. Accordingly, judgment is entered in favour of the 2nd and 3rd Defendants. It is hereby declared that the Claimant’s title in respect of the disputed land is defective and incapable of founding a claim in trespass, and that the estate of Elias Zakeyu Kaphwiti Banda holds the priority title thereto. 124. With respect to the 1st Defendant, the Court notes that his case was distinct from that of the 2nd and 3rd Defendants. His involvement arose from allegations of encroachment onto surrounding customary land, rather than a competing claim of private ownership. The evidence discloses a genuine dispute as to the precise boundaries between the private estate land and adjoining customary land under Traditional Authority Kawere. In order to bring clarity and finality to this aspect of the dispute, and in the interests of orderly land administration, the Court directs the Third Party, being the Ministry responsible for land matters, to conduct a proper survey of the area and to ascertain and demarcate the boundaries between the privately held land and the customary land. 125. The interlocutory injunction granted to the Claimant is vacated by operation of this judgment. 126. Although the Third Party was joined to these proceedings primarily for purposes of indemnity, and notwithstanding that its submissions were ultimately of limited assistance Page | 34 to the Court due to reliance on inapplicable legal principles, the Court is satisfied that it would be inappropriate to make any adverse order for costs against it. 127. Costs of these proceedings are therefore awarded to the 1st, 2nd and 3rd Defendants, jointly and severally, as against the Claimant. 128. As regards the 4th Defendant, the Court notes that no defence was filed, and no participation was made in these proceedings. In the circumstances, and given the manner in which the matter has been resolved, no substantive order is made either for or against the 4th Defendant. 129. It is so ordered. 130. Pronounced in open Court this 30th day of December 2025 at Lilongwe in the Republic of Malawi. Simeon Mdeza JUDGE Page | 35