Kajao v Mwambucha and 2 Others (Civil Cause 73 of 2019) [2024] MWHCCiv 5 (17 January 2024)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 73 OF 2019 (Before Honourable Justice Mambulasa) BETWEEN: ANDREW KAJAO (On behalf of Mwambucha Clan)............... CLAIMANT -VS- ESTHER MWAMBUCHA. .............ccccecceceecceceeceesenseecees 1** DEFENDANT -AND- MARTA MWAMBUCHA..............cccccceccecceseeceeceesesen ees 2NP DEFENDANT -AND- FLORA MWAMBUCHA. ..............ccscececceccecesseeseeseeeees 38? DEFENDANT CORAM: HON. JUSTICE MANDALA MAMBULASA Mr. Noel Supedi, Advocate for the Claimant Mr. Dalitso Nginachi Mattaka, Advocate for the Defendants Mr. Obet Chitatu, Court Clerk/Official Interpreter Mrs. Ethel Msimuko, Court Reporter JUDGMENT MAMBULASA, J [1] [2] [3] Introduction The Claimant’s claims against the Defendants were for declarations that he and other members of the clan, are entitled to retain possession of the clan land and that the Defendants’ activities on the said land constitute trespass. He also sought a permanent order of injunction restraining the Defendants from using or accessing the land, exemplary damages, for denying him and other clan members the right to use their land and costs of the action. The Claimant was suing in his personal capacity and on behalf of the Mwambucha clan. The Claimant’s uncle, Mr. Samuel Mwambucha, married the 1 Defendant for 41 years, from the years 1973 to 2014, when he predeceased her. The 2" and 3 Defendants were daughters of the late Mr. Samuel Mwambucha that he had with the 1*' Defendant. They currently stay on the land in question and any determination in this matter will have a bearing on their rights, interests and legitimate expectation. The Claimant alleged that during the subsistence of the marriage between the 1‘ Defendant and his deceased uncle, Mr. Samuel Mwambucha, the deceased, bought a piece of land in addition to other properties and also built a house [4] [5] [6] [7] for the 1*' Defendant at her Magola Village, Traditional Authority Njolomole in Ntcheu District. Consequent upon the death of the 1‘ Defendant’s husband, a customary law ceremony of Msudzulo was conducted on or about 25 March, 2017 for the 1* Defendant herein with her consent. This ceremony was conducted to formally discharge her from any further marital rigours and obligations. The surviving spouse may remarry, if they so wish, after being formally discharged. In the instant case, since the Msudzulo ceremony was conducted on the aforementioned date, the 1*' Defendant had refused to return to her home village in Ntcheu District. She is still living in the matrimonial home and using the clan land at Nkhonya Village in Mulanje District, allegedly, to the detriment of the Claimant and the entire Mwambucha clan. The 1“ Defendant complained to Senior Chief Chikumbu of Mulanje District alleging that the Msudzulo ceremony was irregularly conducted. The Claimant further alleged that as a result of the Defendants’ actions, they have suffered damage. The particulars were that they have failed to access and or use their clan land and further that they had been subjected to stress and emotional trauma from the ordeal at the hands of the Defendants. In her Defence and Counterclaim, the 1*' Defendant denied that the Claimant’s uncle, Mr. Samuel Mwambucha built her a house at her home village in Ntcheu District. She stated that the only home she had was that which she had been living in with her deceased husband for the past 48 years or so. She 3 [8] [9] [10] [11] confirmed that indeed the Msudzulo ceremony took place but states that it did not discharge her and her daughters from the ties with the Mwambucha clan. The 1* Defendant stated that together with her deceased husband, they were given the customary land in question by the deceased’s uncle. They developed it together as a family since 1973 by building a house, planting trees and flowers around it. The 1*t Defendant alleged that since the demise of her husband, the Claimant had been infringing the Defendants’ nght to property by destroying the scenery of the disputed land. The Claimant had cut down trees and flowers around the area leaving the land devalued. On one occasion, part of the tree fell on top of the 1‘' Defendant’s house and destroyed part of its roof. The Claimant had brought beds, tables, river sand and bricks on the disputed land. He also allegedly took away the sum of MK60,000.00 from the 1* Defendant’s house which he had not returned to date. In addition, the Claimant physically assaulted the 1*' Defendant by applying buffalo beans on her body due to her refusal to move out of the alleged clan land. The Defendants claimed that, they too, have suffered damages and pray for the following: damages for her destroyed house;! damages for trespass to and devaluing their land; damages for pain and suffering; repayment of the sum of MK60,000.00 from the Claimant to the 1‘! Defendant with interest at commercial lending base rate up to the date of actual payment; declaratory ‘Tt is specifically a smaller part of the roof that was damaged. This Court had an opportunity to see the damaged part of the roof when it visited the /ocus in quo. 4 order that the said land belongs to the Defendants; declaratory order restraining the Claimant from physically and verbally abusing the 1“ Defendant and her children; assault;? battery* and costs of the action. Issues for Determination [12] During the scheduling conference held on 2" February, 2021 the Court and the parties agreed that there were four main issues for determination before this Court. These were: 12.1 Whether or not following the custom of Msudzulo ceremony, the Defendants are legally justified in remaining on the Claimant’s clan land and claiming ownership of the same? 12.2. Whether or not the Claimant and his clan members are at law entitled to repossess the land in question? 12.3 Whether or not Mr. Samuel Mwambucha, the deceased, built a house for the 1 Defendant at Magola Village, Traditional Authority Njolomole in Ntcheu District? 12.4 Whether or not the Defendants are entitled to any of the reliefs sought? 12.5 Which party is entitled to costs of the action, if at all? ? Tt is one thing to claim for damages for assault and yet another to just mention the word, “assault” in the statement of case as it were. 3 Tt is one thing to claim for damages for battery and yet another to just mention the word, “battery” in the statement of case as it were. 5 The Law [13] The starting point is the supreme law of the land, the Constitution of the Republic of Malawi (the Constitution). It recognizes that customary law is part of our law in Malawi. Section 200 provides as follows: Except in so far as they are inconsistent with this Constitution, all Acts of Parliament, common law and customary law in force on the appointed day shall continue to have force of law, as if they had been made in accordance with or in pursuance of this Constitution: Provided that any laws currently in force may be amended or repealed by an Act of Parliament or be declared unconstitutional by a competent court. (Emphasis supplied) [14] Section 26 of the Constitution is also relevant to this matter. It is to the effect that every person shall have the nght to use the language and to participate in the cultural life of his or her choice. [15] The Constitution also protects the right to acquire property. It does so in section 28 which is to the effect that every person shall be able to acquire property alone or in association with others. It further provides that no person shall be arbitrarily deprived of property. 16] In the case of Mervis Chirwa -vs- Faizer Karim and Dickson Pwelenji* the [ 1 Supreme Court of Appeal for Malawi affirmed that section 28(1) of the + [2017] MLR 25 (SCA) at page 66. Constitution creates a right for any person to be able to acquire property alone or in association with another. The section recognizes individual and collective acquisition. The section sets no limit on what property - including customary land - that can be subject to acquisition. The right to acquisition of property - including customary land - can be limited by law, legislation, common law and customary law. [17] Similarly, in the case of Zhe Administrator of the Estate of Dr. H. Kamuzu Banda -vs- The Attorney General? the High Court (Chimasula Phiri, J sitting) stated as follows: The largest possible right which a guarantee may possess and enjoy over the land is the night of indefinite occupation and utilization. It is capable of assignment and it is also heritable (Ibik, p. 77). In the absence of evidence to the contrary it will be assumed that this was the type of interest granted to Dr. H. Kamuzu Banda. [18] At page 282, the High Court continued as follows: All persons who have rights in property at the date of the commencement of this Constitution shall continue to have such rights under this Constitution and any other law. The constitutional provision applies to all rights in property including nghts of property in customary land. [19] At page 284 the High Court observed as follows: 5 2002-2003 MLR 272 (HC). Section 28 of the Constitution provides that every person shall be able to acquire property alone or in association with others and further that no person shall be arbitrarily deprived of property. It is clear that the provision does not aim to protect only those who hold legal and equitable titles to property. It is therefore equally protective of any kind of title to property be it legal or equitable. Consequently, any person holding any of the incidents of property discussed above is equally protected by the Constitution. It should be noted further that the provision does not dictate where the property should be acquired and so a holder of customary land is within the ambit of its application. [20] Section 64 of the Courts Act,° is on proof of customary law. It provides as follows: If in any proceeding a matter of customary law is material, such law shall be treated as a question of fact for purposes of proof. In determining such law, the court may admit the evidence of experts and persons whom the court considers likely to be well acquainted with such law: Provided that a court may judicially note any decisions of its own or of any superior court, determining the customary law applicable in a like case. [21] Atthe time of hearing this matter, the applicable law was the Land Act, 2016.’ Section 2 thereof defined customary law as follows: ° Cap. 3:02 of the Laws of Malawi. 7 Cap. 57:01 of the Laws of Malawi. [T]he customary law applicable in the area concerned. [22] Similarly, section 2 of the General Interpretation Act® provides the following in relation to customary law: [C]ustomary law means the customary law applicable in the area concerned. [23] According to the case of Zinga -vs- Zinga et al? the Mang’ anja customary law practice of Msudzulo or Kusudzula refers to the official discharge of a surviving spouse from marriage bond. [24] Similarly, in Dorothy Vekeni -vs- Benson Malibwana' Kalembera, J (as he then was), stated that under the Mang’anja custom, Msudzulo entails a situation where following the dissolution of marriage by reason of death, the widow returns to her original home. He observed as follows: My understanding of ‘nsudzulo’ under the Mang’anja custom, is that the widow and her children, if any, are told to leave the village and go to the widow’s original village. It does not matter how long the widow would have lived in her late husband’s village, or how old she is, or how old their children are. As long as she was there by virtue of her husband, she does not belong there once the husband dies. 8 Cap. 1:01 of the Laws of Malawi. ° [1994] MLR 405 (HC). 0 Land Appeal Case No. 40 of 2010 (High Court of Malawi) (Principal Registry) (Unreported). [25] Inthe Vekeni decision, the Respondent testified that the land in question was not bought by the Appellant’s father and that it belonged to the clan. The main issue for determination was whether or not the Respondent was entitled to the land. The High Court further observed as follows: I must state that just as the Constitution recognizes and enforces customary law, the same must be followed. However, just like the Constitution stipulates, Customary law to be enforced, must be in conformity with the Constitution and I must add, it must not result in unfairness and must not inflict injury on others. I am also of the considered view that Customary law is dynamic or fluid and must be applied in context. The widow and the ‘children’ have lived on this land most of their lives, in fact for the ‘children’ since they were born. I refer to them as children just to mean they are off-springs of the deceased and the widow, otherwise the Appellant is not a child at law... This means they were born, they have been on this land, and this land is where they considered home. Otherwise, if they had considered their mother’s original village their home, may be this matter wouldn’t have been brought to court at all. Now if we were to apply the said Mang’ anja custom on these facts and in this context, it would only breed unfairness on the Appellant and the deceased widow and ‘children’. After being away from her original village for so long how can she be expected to just pitch up? Will she find any idle land? Will she be received with open hands? It is likely that the Appellant, her mother and her siblings might not easily fit or settle in their mother’s original home. They might face hardships and not be able to lead their usual life. [26] The High Court held in the Vekeni decision that it was very difficult to conclude that the said Mang’ anja custom reflected the nghts and values of our Constitution from which it drew its legal force. The Constitution guaranteed protection of the family and abhorred discrimination against women especially depriving them of property including property obtained by 10 inheritance. Thus, to hold that the Respondent was justified under the Mang’anja custom to chase away the widow, the Appellant and her siblings would be counter to the aspirations and values of our Constitution as the custom would result in an injustice and thereby inapplicable. Depriving the widow and her family the deceased’s property under the pretext of following custom would definitely lead to gender-based discrimination which is unfair discrimination and unconstitutional. [27] Section 17 (1) (a) of the Deceased Estates (Wills, Inheritance and Protection) Act'! provides as follows: Upon intestacy the persons entitled to inherit the intestate property shall be the members of the immediate family and dependents of the intestate and their shares shall be ascertained upon the following principles of fair distribution- (a) protection shall be provided for members of the immediate family and dependents from hardship so far as the property available for distribution can provide such protection; (b) every spouse of the intestate shall be entitled to retain all the household belongings which belong to his or her household; [28] Section 17 (4) of the Deceased Estates (Wills, Inheritance and Protection) Act”? provides as follows: | Cap. 10:02 of the Laws of Malawi. !2 As above. 11 [29] [30] [31] Re-marriage shall not deprive a surviving spouse of property inherited under intestacy except in the case of property on customary land where title in that property shall devolve to the children of the spouse by the intestate upon the re- marriage of the surviving spouse. Section 3 of the Deceased Estates (Wills, Inheritance and Protection) Act defines “immediate family member” as in relation to any person, means that person’s spouse and children. Section 4 of the Deceased Estates (Wills, Inheritance and Protection) Act provides as follows: Except as provided for in this Act, no person shall be entitled under customary law or any other written law to take by inheritance any of the property to which a deceased person was entitled at the date of his or her death. In Christina Nsamanyada -vs- Millium Boasi'? the dispute related to a piece of land situate in Suwali Village, Traditional Authority Nsomba in Blantyre District. The land in question initially belonged to the Appellant’s father. The Respondent was a daughter to the Appellant’s brother. The case of the Appellant was that the Respondent should have stopped staying on the land in question upon the death of her father. Two of some of the grounds of appeal were that (a) the land in question was for the clan and not the Respondent and (b) that all the children got married, but before their father died, he built a house for them at their home village. The Appellant argued that in terms of customary law prevailing in Suwali Village, the land in question belonged to 'S Civil Appeal No. 50 of 2013, (High Court of Malawi) (Principal Registry) (Unreported). 12 [32] her and other clan members. The High Court (Kenyatta Nyirenda, J sitting) held that since the Respondent’s father died intestate, the land in question had to be dealt with in terms of the Deceased Estates (Wills, Inheritance and Protection) Act. The Court also bore in mind section 4 of the Deceased Estates (Wills, Inheritance and Protection) Act and further held that since the Respondents’ father was entitled to the land in question at the time of his death, it was only the Respondent and her siblings that were entitled to it within section 17 of the Act. It is trite learning that in civil matters, it is the claimant who bears the burden of proof. In Commercial Bank of Malawi —vs- Mhango“ the Supreme Court of Appeal for Malawi observed as follows: Ordinarily, the law is that the burden of proof lies on a party who substantially asserts the affirmative of the issue. The principle was stated in the case of Robins v National Trust Co [1927] AC 515 that the burden of proof in any particular case depends on the circumstances in which the claim arises. In general, the rule is Ei qui affirmat non qui negat incumbit probatio which means the burden of proof lies on him who alleges, and not him who denies. Lord Megham, again, in Constantine Line v Imperial Smelting Corporation [1943] AC 154, 174 stated that itis an ancient rule founded on considerations of good sense and should not be departed from without strong reasons. The judge said that the rule is adopted principally because it is but just that he who invokes the aid of the law should be the first to prove his case because in the nature of things, a negative is more difficult to establish than an affirmative. However, in a civil action the burden of proof may be varied by the agreement of the parties - see Bond Air Services Ltd v Hill [1955] 2 QB 417. 4 12002-2003] MLR 43 (SCA). 13 [33] It 1s also commonplace that the standard of proof in civil matters 1s on a balance of probabilities. In Miller —vs- Minister of Pensions'> 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 probable than not,” the burden is discharged but, if the probabilities are equal, it is not. [34] Section 30 of the Courts Act!® provides that costs are in the discretion of the High Court. It provides as follows: Subject to this Act, the costs of, and incidental to, all proceedings in the High Court, including the administration of estates and trusts, shall be in the discretion of the High Court; and the discretion shall be exercised in accordance with the practice and procedure provided in the rules of procedure made by the Chief Justice under section 67 of this Acct. [35] Order 31, rule 3 (1) of the Courts (High Court) (Civil Procedure) Rules, 2017 is couched in the following terms: The Court has discretion as to- (a) whether costs are payable by one party to another; (b) the amount of these costs; and (c) when they are to be paid. 1511947] 2 All ER 372. ‘© Cap. 3:02 of the Laws of Malawi. 14 [36] [37] [38] [39] When the Court decides to make an order about costs, then, the general rule is that the unsuccessful party shall be ordered to pay the costs of the successful party. This is clear from Order 31, rule 3 (2) of the Courts (High Court) (Civil Procedure) Rules, 2017. There are exceptions to the general rule, where a successful party shall not always be entitled to have an order for costs against the unsuccessful party. For instance, where a successful party recovers no more than nominal damages, it may be ordered to pay the unsuccessful party’s costs.'’ The successful party may also not be entitled to costs where the issue on which a party succeeded is raised for the first time by amendment at a very late stage.'® The Evidence The first witness for the Claimant was the Claimant himself, Andrew Kajao. He testified that he comes from Mandozo Village, Group Village Headman Nkhonya, Traditional Authority Chikumbu in Mulanje District. He was 36 years old. He was one of the members of the Mwambucha clan and a nephew to Mr. Samuel Mwambucha, the 1‘ Defendant’s deceased husband. The witness told the Court that the 1*' Defendant and his deceased uncle contracted a matrilocal customary law marriage and stayed together in Mulanje District for forty (40) years, in which marriage they were blessed with five children, three of whom are deceased. '7 Texaco Ltd —vs- Arco Technology Inc (1989) The Times, 13 October 1989. '8 Beoco Ltd —vs- Alfa Laval Co Ltd & Anor [1995] QB 137. 15 [40] [41] [42] [43] [44] [45] The Claimant testified that during the subsistence of the said marriage, in addition to the land in dispute, his uncle also bought a plot for the 1* Defendant within their locality and also managed to construct a home for the 1* Defendant at her home village at Magola Village, Traditional Authority Njolomole in Ntcheu District. The Claimant further testified that in the year 2014, Mr. Samuel Mwambucha predeceased the 1*' Defendant. The 1*t Defendant sold the plot that was bought for her by her deceased husband. Following the death of his uncle, Mr. Samuel Mwambucha, the 1*' Defendant consented to her Msudzulo ceremony and the same was conducted on 25" March, 2017. The Msudzulo ceremony was witnessed by Village Headmen Nkhonya, Mandozo and Ngotima thereby lawfully discharging the 1“ Defendant from her previous ties with the Mwambucha clan. Notwithstanding the fact that the /sudzu/o ceremony was regularly done, the 1*' Defendant declined to leave the village and challenged the entire Msudzulo ceremony before Senior Chief Chikumbu on 6" April, 2017. On 25" April, 2018 Senior Chief Chikumbu delivered her ruling in relation to the 1*' Defendant’s claim in which she held that the Msudzulo ceremony in question was properly done under the applicable law. A copy of the ruling was given in evidence as exhibit, “AK1”. The witness finally told the Court that he believed that the 1*' Defendant was not entitled to the clan land in dispute. 16 [46] [47] [48] [49] [50] [51] In cross examination, the Claimant told the Court that exhibit, “AK1” the ruling was authored by Senior Chief Chikumbu. Asked whether the Claimant knew the real name of Senior Chief Chikumbu, he told the Court that he did not know tt. Asked whether Senior Chief Chikumbu would be one of the witnesses in this case, the Claimant explained that she would not be. Interrogated whether the Claimant witnessed the wedding ceremony between his deceased uncle, Mr. Samuel Mwambucha and the 1° Defendant, he told the Court that he did not. Similarly, the Claimant also told the Court that he did not know the salient terms and conditions of the marriage and that he was not present during the wedding ceremony that took place in Ntcheu District. The Claimant told the Court that he was a grandson to Magret Mwambucha who was the original owner of the disputed land and that he belongs to the clan called, Yute. Asked whether the Yute clan does not have its own land, the Claimant told the Court that it has. The Claimant testified that Yute just came to marry. He then changed his testimony and stated that the clan name was that of Magret Mwambucha and that her land was the one in dispute in the Court and that Magret Mwambucha was not farming on that land. 17 [52] [53] [54] [55] [56] [57] When the Claimant was quizzed as to whether he had sisters, he said he did. Quizzed further whether the sisters had land, he said, they had land which they inherited from his mother. The Claimant told the Court that his father had land as well. The daughters did not inherit any such land from his father. The land was being used by children of his father’s sisters. These were given by his father. The witness told the Court that it is the children of his sister, regardless of their sex, who would inherit their parent’s land. Asked whether the Claimant was there in the year 1972 when Mr. McCloud gave the land in dispute to Mr. Samuel Mwambucha, he told the Court that he was not there. The Claimant could also not tell what was on the land. The witness testified that the land in dispute did not belong to his father. It did not belong to his mother either. The Claimant confirmed that the land in question was being used by Mr. Samuel Mwambucha. The witness told the Court that he was aware that his deceased uncle, left behind a wife and six children, including one who was born from a different woman, three of whom passed away. The surviving three were: Maria, Flora and Semu. The Claimant confirmed to the Court that in the year 2017 he cut down trees on the land in dispute. He also confirmed that he brought a table, chairs, river sand and a bed on the land in question. The Claimant did so without the consent of the Defendants. That was immediately after Senior Chief 18 [58] [59] [60] [61] [62] Chikumbu had given her ruling. The Claimant did not consult the Defendants before bringing the things on the land in question. The Claimant testified that he was prosecuted for the offence of causing malicious damage contrary to section 344(1) of the Penal Code.'? He was found guilty of the offence and he was convicted and he did not appeal against the judgment. The witness told the Court that in the year 2015, one year after the death of his uncle, Mr. Samuel Mwambucha he summoned the 1*' Defendant that the clan wanted to conduct Msudzulo ceremony. The 1*! Defendant however told them that she was not ready as she was still mourning her late husband. The Claimant confirmed to the Court that he gave Mr. Rowland Mlelemba the sum of MK60,000.00. This sum was intended to facilitate the construction of a house for the 1“ Defendant at her home village in Ntcheu District. The witness told the Court that the 1*' Defendant was not happy with the assertions that the land where she was staying was clan land and needed to be handed back to the clan. The Claimant clarified that the sum of MK60,000.00 was not part of the Msudzulo ceremony. '? Cap. 7:01 of the Laws of Malawi. 19 [63] [64] [65] [66] [67] [68] Asked whether the Claimant himself had ever cared to visit the 1** Defendant’s home in Ntcheu District, he told the Court that he had never done so. And so, he could not tell the Court that his uncle, Mr. Samuel Mwambucha, built a house for the 1*t Defendant as alleged as he never saw one. Asked to explain the source of information that Mr. Samuel Mwambucha had built a house for the 1*t Defendant, the witness told the Court that it was Mr. Rowland Mlelemba who alleged that there was a house for the 1*t Defendant in Ntcheu District. Mr. Rowland Mlelemba requested the clan at the Senior Chief Chikumbu to build the 1‘' Defendant a house, if there was none. The Claimant’s position was that the obligation to build a wife a house at her home village fell squarely on the husband. He was not a husband to the 1“ Defendant. Even Mr. Rowland Mlelemba was not a husband to the 1“ Defendant. The Claimant testified that he uprooted the trees on the land in dispute after the Msudzulo ceremony was conducted in the year 2017. The Claimant confirmed to the Court that part of the roof for the house in which the 1*' Defendant was living in, was damaged when he was felling a tree. A branch of a tree fell on the corner of a roof and it was damaged. Regarding adjacent land to the one in dispute, the Claimant testified that the late Lydia Mwambucha did not buy it. She was given the land by Mrs. Eneless Phunduma and that Mrs. Eneless Phunduma did not complain to Senior Chief Chikumbu about that land. 20 [69] [70] [71] [72] [73] [74] The Claimant testified that he had never seen exhibit “EM1b”. He told the Court that he has never challenged it and never bothered to ask Lydia Mwambucha and Mrs. Eneless Phunduma about it as they were both deceased. The said exhibit was a sale agreement for the adjacent land between Lydia Mwambucha and Mrs. Eneless Phunduma. Mrs. Eneless Phunduma sold the land to Lydia Mwambucha on 22" November, 2006 at the price of MK 10,000.00 (Ten Thousand Malawi Kwacha). The witness told the Court that women and girl children are the ones who inherit land under their culture and such land is never taken away from them. On the allegation that the land in question was first owned by Mr. Mcloud, the Claimant told the Court that no one else would be invited to testify on that point. The Claimant testified that Mr. Mcloud was older than his mother as well as Magret Mwambucha. He told the Court that Mr. Mcloud was not a brother to his mother or Magret Mwambucha. Mr. Mcloud was an uncle to them. The Claimant told the Court that Mr. Samuel Mwambucha was raised by Mr. Mcloud, even though himself was not yet born at the time. The Claimant admitted that he could not testify as to what had transpired between Mr. Mcloud and Mr. Samuel Mwambucha in relation to the land in dispute. He told the Court that he did not even know Mr. Mcloud. 21 [75] [76] [77] [78] [79] [80] [81] Asked whether the Claimant was female, he said he was not. He also told the Court that there was no female person who was complaining in this matter. The action had been commenced by the Claimant. The Claimant told the Court that he was aware that Mr. Samuel Mwambucha had four siblings. These were Magret, Meria, Ruby and John. John Mwambucha migrated to Zambia. Magret Mwambucha settled across the tarmac road opposite the disputed land. Mr. Samuel Mwambucha settled on the disputed land. Asked whether the witness knew Mr. Rowland Mlelemba, he said he did. However, he did not know Mr. Rowland Mlelemba’s father. In re-examination, the Claimant told the Court that the clan is reclaiming the land because of its proximity to the main tarmac road, which makes it conducive for tailoring business. Mr. Mcloud trained Mr. Samuel Mwambucha in tailoring. In turn, Mr. Samuel Mwambucha trained Ricky Phunduma in tailoring as well. As a clan, they would like to use the land for the tailoring business and that others should also benefit from it and that the land will not be disposed of in any way. The second witness for the Claimant’s case was Mr. Rowland Mlelemba. He testified that he was 56 years old and that he hailed from Namakhutcha Village, Traditional Authority Chikumbu in Mulanje District. 22 [82] [83] [84] [85] [86] [87] [88] The witness told the Court that he was a brother to the 1*t Defendant and that he was a marriage advocate (ankhoswe) for her family. He testified that the late Mr. Samuel Mwambucha married his sister, the 1* Defendant, long time ago. The witness told the Court that the 1°‘ Defendant’s maiden name was, Esther Liwonde, and that she was born around late 1950s. Mr. Mlelemba told the Court that when Mr. Mcloud was dying, Mr. Samuel Mwambucha was in Zimbabwe. Upon Mr. Samuel Mwambucha’s return to Malawi from Zimbabwe, he was given a piece of land by Ruby Mwambucha. The witness testified that Mr. Samuel Mwambucha married a number of women. Around 1970s, Mr. Samuel Mwambucha married Esther Mwambucha. The wedding ceremony was conducted in Ntcheu, Esther’s home village. It was a chitengwa kind of marriage, whereby the woman goes to live in the man’s village but the children still belong to the woman’s lineage. At that time, Esther Mwambucha was the only wife to the late Mr. Samuel Mwambucha. After the death of Mr. Samuel Mwambucha, Msudzulo ceremony was conducted in Mulanje District. While they were still married, Mr. Samuel Mwambucha constructed a house for his wife at Magola Village, Traditional Authority Njolomole in Ntcheu District. It was a house built with burnt bricks and roofed with iron sheets. 23 [89] [90] [91] [92] [93] [94] On the Msudzulo ceremony, he attended it as one of the elders from the 1" Defendant’s (female) side. He told the Court that he was surprised because his sister became resistant to the idea that since her husband had transitioned into glory, she was being set free to return to her original home village, as per custom practiced in Mulanje District. Later on, news spread that the Msudzulo ceremony had been cancelled. He went to the family and was called by the Claimant about the same. The witness spoke to his sister, the 1** Defendant herein, but she declined the Msudzulo ceremony. The Mwambucha clan gave her all the required things, among them, chitenje, money and chickens. After the Msudzulo ceremony, the 1** Defendant went to Senior Chief Chikumbu. There were representatives in attendance, among them, Group Village Headmen Nkhonya, Mandevu and Khaiwa. The 1* Defendant complained that the Msudzulo ceremony had not been properly conducted. Senior Chief Chikumbu then sanctioned about 5 group village headmen namely; Nkhonya, Gulumba, Ngulowe and Chigwenembe. The second Msudzulo ceremony was conducted. On the second Msudzulo ceremony, the witness spoke as an elder from the female side and accepted that everything had been properly conducted. After that, Senior Chief Chikumbu wrote a ruling declaring that the Msudzulo ceremony had been properly conducted. 24 [95] [96] [97] [98] [99] The witness further testified that while the marriage between Mr. Samuel Mwambucha and the 1“ Defendant was still subsisting, the 1‘' Defendant demolished the house that her husband built for her in Ntcheu District and sold the remaining property. During that time, she was still staying on the disputed land. The witness spoke to the 1*' Defendant and agreed that she needed to leave the place (the disputed land). The 1 Defendant was given the sum of MK60,000.00 which money was received by him (the witness) on the 1“ Defendant’s behalf. That was done in the presence of Senior Chief Chikumbu. When the 1*t Defendant arrived in Ntcheu District, she was given a piece of land to start the brick making project. The witness was then called by the 1* Defendant claiming that she was being sold. The 1“ Defendant then returned to Mulanje District and did not meet the witness because she had been unwilling to meet him. In cross-examination, the witness told the Court that he was a brother to the 1“ Defendant and that he did not witness her birth as he was not yet born. The witness testified that the 1‘‘ Defendant’s mother and his mother were sisters. The witness testified that he witnessed the marriage between the 1“ Defendant and the late Mr. Samuel Mwambucha. He said he actually attended the wedding ceremony. He testified that he was young at the time around 8 years old. 25 [100] He told the Court that he actually saw the house that Mr. Samuel Mwambucha built for the 18 Defendant. He said he used to visit Ntcheu District a lot in the 1980s but never settled there. The witness told the Court that he was born in Mulanje District and that he also married in Mulanje District. [101] However, the 1*' Defendant and her first born child demolished the house which was built for her by Mr. Samuel Mwambucha. That happened at a time when the marriage between the 1*' Defendant and the late Mr. Samuel Mwambucha was sailing in troubled waters. The iron sheets of that house were removed by the 1*t Defendant’s daughter, called Magret. [102] The witness testified that he never heard the 1*' Defendant tell her said daughter to go to Ntcheu District and demolish her house. [103] The witness told the Court that in or around October, 2017 he visited Ntcheu District, more particularly, Magola Village, Traditional Authority Njolomole. The sole reason for the visit was for him to construct a house for the 1* Defendant. [104] Before embarking on the project, Mr. Rowland Mlelemba informed village headwoman Magola of the arrangement. During his testimony, the witness was able to identify village headwoman Magola who was present in court. However, the construction of the house was abandoned. [105] Mr. Rowland Mlelemba confirmed to the Court that the name of his father was, Stover Mlelemba and that the name of his mother was, Mary Lilongwe. 26 He further confirmed that his father hailed from Mulanje District while his mother hailed from Mphepozinayi in Ntcheu District. [106] The witness told the Court that there were six children in his family, comprising four boys and two girls. His father died in the year 1984. His mother died in the year 1998. The said mother died in Mulanje District. From the time that his father died in the years 1984 up to 1998 when his mother died, she lived on the land that had been allocated to his father. [107] The witness testified that Msudzulo ceremony was done for his mother as well. His deceased father left a house, land and dimba (a garden near water). [108] He told the Court that he was still staying in a house left behind by his deceased father. His two sisters were not given or allocated any portion of the land. In other words, his sisters have no land to do farming activities. [109] In or around April or May, 2018 the 1* Defendant was invited to a meeting by Senior Chief Chikumbu. The reason was because she was being ill-treated by the Mwambucha clan. The witness testified that he even discussed this matter with his other brother who stays in Blantyre. [110] The witness told the Court that the 1‘! Defendant, Lucy Kalima and him appeared before Senior Chief Chikumbu. It was during that meeting that the Claimant took the sum of MK60,000.00 and gave it to him to be used for constructing a house for the 1‘ Defendant. The witness was well aware that there was no house for the 1‘ Defendant in Ntcheu District. 27 [111] [112] [113] [114] [115] The witness confirmed to the Court that he had a sister called, Ethel Mlelemba, who was deceased. He also confirmed that she died while still staying on the land left by their father. The witness was quick to point out to the Court that no one could kick them out of their father’s land because it was leased. The witness told the Court that he knew Mr. Joseph Mlelemba. He was his uncle, a brother to his late father. Mr. Joseph Mlelemba married Ireen. Ireen predeceased Joseph. The two had children who are still alive and they all live in Mulanje District more particularly on the land left behind by their father, which he had bought. The witness testified that he also knew John Mlelemba. He too was his uncle, a brother to his late father. Mr. John Mlelemba married Mary. Mary left her place of origin and came to stay at her husband’s home- chitengwa. The two had children who are still alive. John died first before Mary. The children live on the land left behind by their parents. However, a large portion of the land was taken away by the male side. Only a small portion of the land is where the children live on. The witness told the Court that the name of his brother who was based in Blantyre was Evance. He testified that he did not speak during the second Msudzulo ceremony. He spoke during the first one. In re-examination, the witness told the Court that the treatment that the 1* Defendant and her children have suffered 1s what John and Joseph’s children went through as well. 28 [116] The third witness for the Claimant’s case was Wilson Willard Phunduma. He testified that he was 46 years old and hailed from Nkhonya Village, Traditional Authority Chikumbu in Mulanje District. [117] The witness told the Court that he was an uncle to the Claimant, Andrew Kajao. On the day of Msudzulo ceremony, the Claimant, Rowland Mlelemba, Senior Chief Chikumbu and himself were in attendance. The 1*t Defendant was also present and she was accompanied by her relations from her side. She consented to the arrangement and that was the reason why they all gathered at Senior Chief Chikumbu’s headquarters. [118] He testified that before Mr. Samuel Mwambucha died, he called him and informed him together with Andrew Kajao that the 1*' Defendant had demolished the house which had been built by Mr. Samuel Mwambucha in Ntcheu District. [119] During cross examination, the witness testified that he was born in Mulanje District and grew up there and that none of his parents came from Mphepozinayi in Ntcheu District. He said that as a matter of fact, he had never been to Mphepozinayi in the said district. [120] Asked whether he witnessed the 1*' Defendant demolish her house, he testified that he did not. [121] The witness testified that he was one of the persons who felled trees on the 1“ Defendant’s house in Mulanje District. He also told the Court that he saw the Claimant take some of his property and river sand to the 1*t Defendant’s house 29 in Mulanje District. The Claimant did this on the same day that Senior Chief Chikumbu gave her ruling on the Msudzulo ceremony and the following day. [122] There was no re-examination of this witness. [123] The fourth witness for the Claimant was Efe Mandozo Phiri. She testified that she was 72 years old and hailed from Mandozo Village, Group Village Headman Nkhonya, Traditional Authority Chikumbu in Mulanje District. [124] The witness told the Court that she had been Village Headwoman Mandozo for along time. Her testimony was that Chief Mandozo was the one who gave or allocated the disputed piece of land to Mr. Samuel Mwambucha’s grandfather. [125] The witness said that when Mr. Samuel Mwambucha’s grandfather died, she had not yet been installed as a village headwoman. However, when she became a chief, she knew that the land in question belonged to the Mwambucha clan. [126] The witness testified that she was present at both Msudzulo ceremonies. [127] In cross examination, the witness testified that the land was allocated to Mr. Mcloud by village headman Nkhonya. Mr. Mcloud then shared the land to his nieces, namely, Magret Mwambucha, Meria Mwambucha and Ruby Mwambucha. 30 [128] The witness testified that the land in dispute was given to Samuel Mwambucha by Magret Mwambucha. However, she did not witness the transaction. She also could not testify as to what Mr. Mcloud told Mr. Samuel Mwambucha about the land. [129] The witness told the Court that Mr. Mcloud and Mr. Samuel Mwambucha went and lived at Ruo. Actually, Mr. Mcloud died while he was still living at Ruo. Mr. Samuel Mwambucha went for greener pastures in Zimbabwe. When he returned to Malawi, he first stayed with his sister, Magret Mwambucha. [130] The witness testified that he did not know what Magret Mwambucha and Mr. Samuel Mwambucha agreed regarding the land, but one thing that is certain is that she saw Mr. Samuel Mwambucha build a house on the disputed land. [131] Asked whether the witness knew Mrs. Mitembo, she told the Court that she did. She testified that Mrs. Mitembo came from Mulanje Mission, more particularly from Thabwa. Mr. Mitembo predeceased his wife. Msudzulo ceremony was conducted. However, Mrs. Mitembo stayed on, on her husband’s land until her death. [132] Quizzed whether the witness knew Mrs. Kantambo, she told the Court that she did not know her. [133] The witness testified that she knew that Mrs. Mlelemba did not come from Mulanje District. Mrs. Mlelemba’s husband died first. Msudzulo ceremony was conducted for her. She was never chased by anyone to go to her home village. She stayed on, on her husband’s land and died there. 31 [134] The fifth and last witness for the Claimant’s case was Senior Chief Chikumbu. Her real name was Ida Bereza. She hailed from Robeni Village, Traditional Authority Chikumbu in Mulanje District. [135] The witness told the Court that the exhibit marked, “AJ1” that was tendered in evidence by the Claimant was her ruling. It came from her office and she signed it. [136] There was no cross-examination of the witness. This marked the end of the Claimant’s case. [137] The first witness for the Defendant’s case was Mrs. Esther Mwambucha. She hailed from Nkhonya Village, Traditional Authority Chikumbu in Mulanje District. She was the 1*t Defendant in this case. [138] The witness told the Court that she got married to Mr. Samuel Mwambucha, now deceased, in 1973. That was at Milanzi Village, Traditional Authority Njolomole in Ntcheu District. Soon after their wedding ceremony (customary marriage), they settled at her husband’s place in Mulanje District. [139] She testified that their marriage advocates (ankhoswe) were Henderson Ching’amba (for her) and Barnet Thanguli for the late Mr. Samuel Mwambucha. Mr. Rowland Mlelemba had never been her marriage advocate. [140] Mr. Samuel Mwambucha had four (4) siblings. These were Magret, Meria, John and Ruby. The Claimant belongs to the lineage of Magret Mwambucha 32 who have their own land which was given to them by Group Village Headman Nkhonya. [141] Prior to their marriage, the late Mr. Samuel Mwambucha left Malawi for Bulawayo, Zimbabwe in the year 1960. He returned to Malawi in the year 1972 and settled at the disputed land. This land was given to him by his uncle, Mr. Mcloud in 1950. [142] After marrying the late Mr. Samuel Mwambucha in the year 1973, the witness started her own business, selling clothes, groundnuts and mandasi. [143] Throughout the subsistence of her marriage with her late husband, her husband never bought land for her in Ntcheu District nor did he construct a house for her at her village of origin in Ntcheu District. [144] From the year 1974, the late Mr. Samuel Mwambucha and her started developing the land in dispute. They planted trees, flowers and extended and renovated the small house that was on the land. [145] The land in dispute was also extended by herself and her late daughter, Lydia Mwambucha by buying pieces of land from their neighbours. She exhibited two copies of the Sale Agreements marked, “EM1a” and “EM1b”. [146] The witness told the Court that part of the land in dispute was given to her late daughter by Mark’s mother. 33 [147] A year after the death of her husband in the year 2014, the witness was summoned by the Claimant and some of his relatives for the Msudzulo ceremony. She however declined to attend the ceremony on the basis that she was still mourning her husband. [148] After sometime, the witness was summoned again by the Claimant and some of his relatives for the ceremony. The ceremony was conducted notwithstanding her resistance. [149] During the said Msudzulo ceremony, the Claimant then produced the sum of MK60,000.00 which he gave to Mr. Rowland Mlelemba for him to arrange and facilitate the building of a house for her in Ntcheu District. Immediately after the ceremony was done, she was further instructed by the Claimant to vacate the land in dispute, but she refused. [150] Thereafter, the Claimant and Mr. Phunduma furiously went to her house and smashed some of the windows and uprooted some flowers. [151] A day after the aforementioned incident, the Claimant visited her premises and caused havoc where he beat up and wounded Mr. Mark Machika, the 3" Defendant’s husband. The matter was reported to the Police who came and arrested the Claimant. [152] He was duly charged and prosecuted on the foregoing matter, and he was found guilty of unlawful wounding at Mulanje Magistrate Court. The sentence was suspended but he was ordered to compensate Mr. Mark Machika with the sum of MK60,000.00. 34 [153] He duly paid the sum of MK60,000.00 to Mr. Mark Machika, which the latter, gave to the witness at Mulanje Magistrate Court whilst the Claimant was watching. [154] The Claimant then followed her to her residence and took from her the said sum of MK60,000.00 and left the place. [155] On the same day, the Claimant went to her place with Mr. Wilson Willard Phunduma and other relatives and assaulted the 2"! and 3 Defendants. [156] The Claimant then asked the witness to leave her premises, but she declined. He then spread buffalo beans on her body. [157] After that incident, the Claimant brought his belongings to the disputed land, namely, six chairs, a table, a bed, bricks and river sand without her consent. [158] On the day after the above-mentioned scenario, the Claimant went to the witness’s house again and cut down mango trees, bluegum trees, an orange tree and destroyed flowers around. [159] As he was cutting down the said trees, a branch of a mango tree fell on one side of the house thereby damaging the roof (iron sheets) of her house. [160] The matter was reported to police who arrested the Claimant again. He was prosecuted at Mulanje Magistrate Court and found guilty. There is exhibited a copy of the lower court judgment marked, “EM2”. 35 [161] Furthermore, the Claimant continued to visit the witness’s place with strangers/alleged customers whom he wanted to sell the land 1n dispute. [162] On one occasion her daughter, Maria, and her grandchild had to stop the Claimant’s customer from possessing the land after the latter alleged that he had paid the Claimant the sum of MK2,000,000.00 as consideration for it. [163] Further, the Claimant had on countless times been trespassing on the land, he had devalued it and caused great pain both physical and mental to the witness due to his bad behaviour/conduct. [164] The witness believed that the Claimant had no nght to claim the land in dispute since it belongs to her and her daughters. [165] In cross examination, the witness confirmed that her name was Esther Mwambucha, and that her father was Ernest Liwonde and her mother was Agness Lilongwe. Her father came from Dedza District, Chanthunya Village, Traditional Authority Kandulu. Her mother came from Ntcheu District, Magola Village, Traditional Authority Njolomole. [166] The witness testified that before she got married to the late Mr. Samuel Mwambucha, she was already staying in Mulanje District at Namakhutcha Village. She told the Court that she found herself in Mulanje District because she was being raised by her aunt, a sister to her mother. 36 [167] The witness told the Court that she knew Mr. Rowland Mlelemba. He was her cousin in the sense that the mother to Mr. Rowland Mlelemba and her mother were sisters. [168] The aunt with whom the witness was staying in Mulanje District was Mr. Rowland Mlelemba’s mother. [169] The witness told the Court that she got married to the late Mr. Samuel Mwambucha in the year 1973. However, they knew each other way back in the year 1961 in Mulanje District. At that time, Mr. Samuel Mwambucha had come for a holiday from Bulawayo in Zimbabwe. [170] The witness testified that she had a chance to know Mr. Mcloud and used to see him. [171] Asked when Mr. Mcloud died, the witness did not know the exact year but was quick to say that it was in the 1950s. [172] Questioned again the exact year when the witness was born, she told the Court that she was born in the year 1945. [173] The witness testified that she was told by her late husband that his uncle, Mr. Mcloud gave him the disputed land. [174] Quizzed when the late Mr. Samuel Mwambucha went to Zimbabwe, the witness told the Court that it was in the year 1960. The witness testified that her love relationship with Mr. Samuel Mwambucha started in the year 1961. 37 She further told the Court that the late Mr. Samuel Mwambucha continued to come to Malawi for holidays every two years or so. [175] The witness told the Court that she knew Mr. Mcloud first and Mr. Samuel Mwambucha later on. [176] The witness told the Court that she did not have any other piece of land other than the land in dispute. [177] She testified that in her lifetime, she had never lived in Ntcheu District for any considerable period of time. It 1s for that reason that she claimed that she could not point to any piece of land in Ntcheu District where she could have had a house built for her. The witness confirmed to the Court that 1t was a husband who was under a legal obligation to build a house for his wife. [178] The witness told the Court that if it became necessary, she would ask elders to show her a place where her house would have to be built in Ntcheu District. [179] Asked about the land that she bought next to the land in dispute, she told the Court that she did so as an investment - to keep her money. [180] For farming purposes, she rents gardens from other people and grow maize. The land that she bought next to the land in dispute was disposed of by way of sale. The main reason was that it could not produce enough maize. [181] Asked whether the late Mr. Samuel Mwambucha did have any land/garden where he was doing farming, the witness told the Court that he had none. On 38 the other hand, the Mwambucha clan had land, but Mr. Samuel Mwambucha and the witness did not have any land/garden where to farm. [182] Asked whether the witness ever inquired from her late husband as to why they were not allocated a piece of land, the late Mr. Samuel Mwambucha told her that he was not allowed to be allocated any land. This was notwithstanding the fact that the late Mr. Samuel Mwambucha was the first born in his family. He was a man of peace. He never wanted to argue with anybody. He let things be. [183] The witness told the Court that her aunt, Mr. Rowland Mlelemba’s mother died. [184] On Msudzulo ceremony, the witness testified that she was still not satisfied about it in spite of the fact that Senior Chief Chikumbu was in Court and confirmed to have written the ruling that held that the ceremony was regular. [185] The witness testified that she was aware that her case was appealed against to the District Commissioner for Mulanje District in respect of the land in dispute. However, the witness told the Court that she did not know the determination that was rendered by Senior Chief Chikumbu. [186] The District Commissioner gave his determination but the witness told the Court that she had never seen one and that any such determination was fake. [187] In re-examination, the witness told the Court that she still did not believe that the ruling ascribed to Senior Chief Chikumbu was authored by her. She also 39 did not believe the letter that allegedly came from the District Commissioner’s office. [188] The second witness for the Defendants’ case was Maria Mwambucha. She hailed from Nkhonya Village, Traditional Authority Chikumbu in Mulanje District. She was a married woman and did business for a living. Her business involved travelling to the United Republic of Tanzania and Republic of South Africa to buy merchandise for sale in Malawi. [189] She testified that she was informed that her father, Mr. Samuel Mwambucha and her mother, Esther Mwambucha got married in 1973. She is their fourth born child. She told the Court that her father died in the year 2014 due to a road accident. [190] Almost a year after her father’s death, her mother, the 1*' Defendant was summoned by the Claimant and some of his relatives for Msudzulo ceremony. Her mother declined to attend the same on the basis that she was still mourning her late father. [191] Her mother was again summoned by the Claimant and some of his relatives for the said ceremony. This time around, it was conducted notwithstanding the resistance from her mother. [192] Immediately after the ceremony was conducted, the Claimant instructed her mother to vacate the house and the land she was staying on, but she declined on the basis that she had nowhere else to go. That was the case because her late father did not build a house for her mother anywhere else. Further, that 40 the land she is staying at right now was owned and developed by her mother and late father. [193] During the said Msudzulo ceremony, the Claimant then produced the sum of MK60,000.00 which he gave to Mr. Rowland Mlelemba for him to arrange and facilitate the building of a house for her mother in Ntcheu District. [194] Due to the refusal by the 1 Defendant to vacate the land in dispute, the Claimant and Mr. Wilson Willard Phunduma furiously went to her mother’s house and smashed windows and uprooted flowers around the premises. [195] A day after the aforementioned incident, the Claimant visited their premises and caused havoc and beat up and wounded Mr. Mike Machika, the 3% Defendant’s husband. The matter was reported to the police who came and arrested the Claimant. [196] The Claimant was duly charged and prosecuted on the foregoing matter, and he was found guilty of unlawful wounding at Mulanje Magistrate Court. The sentence was suspended but he was ordered to compensate Mr. Mark Machika with the sum of MK60,000.00. [197] He duly paid that MK60,000.00 to Mr. Mark Machika which the latter gave to the 1! Defendant at Mulanje Magistrate Court whilst the Claimant was watching. The Claimant said that he was going to get back that sum of money. [198] True to his word, the Claimant followed them to the house and went inside the house and took away the said MK60,000.00. On the same day, the 4] Claimant visited them again with Mr. Wilson Willard Phunduma and other relatives and assaulted the witness together with her sister, Flora Mwambucha, the 3"! Defendant. [199] The Claimant furiously asked her mother to leave the premises, but she declined, upon which the Claimant spread buffalo beans on her body. After this incident, the Claimant brought his belongings to their premises, namely, six chairs, a table, a bed, bricks and river sand. [200] The next day after the above-mentioned event, the Claimant visited again and cut down mango trees, an orange tree and destroyed flowers around. As he was cutting down the said trees, a branch of a mango tree fell on one side of the house thereby damaging the roof (iron sheets) of the house. [201] The matter was reported to the police who arrested the Claimant. He was prosecuted at Mulanje Magistrate Court and found guilty again. There is exhibited a copy of the judgment attesting to the foregoing marked, “MM1”. [202] Furthermore, the Claimant continued visiting the place with strangers/alleged customers whom he wanted to sell the land in dispute to. [203] On one occasion, she had to stop the Claimant’s customer from possessing their land after the latter alleged that he had paid the Claimant the sum of MK2,000,000.00 as consideration for purchasing the disputed land. 42 [204] Further, the Claimant has on countless times been trespassing their land, he has devalued it and caused great pain to them both physical and mental due to his behaviour/conduct. [205] The witness believed that the Claimant had no right to claim the land in dispute since it belonged to her family. Further, the Claimant was not an immediate family member of her late father, Mr. Samuel Mwambucha. [206] The Claimant therefore could not inherit her late father’s land. [207] Notably, part of the land in dispute was bought by her mother from Mrs. Dama in the year 2009. Part of it belonged to her late sister, Lydia Mwambucha, who bought it from her aunt, Magret Mwambucha. [208] During cross examination, the witness testified that she was born on 19" April, 1982. She told the Court that her late father had five children with her mother and a step-brother whom her mother raised. [209] Only three children are alive now. These are: Semu, Maria and Flora. Flora was present in court during the hearing while Semu was not. Flora was the last-born child. Semu lives in Blantyre. He was aware of the proceedings in court but could not make it due to illness. Between Maria and Semu, Semu was older. Semu was the only male child alive. [210] The witness acknowledged that Semu did not feature anywhere in the case. 43 [211] The witness told the Court that she was present when the Msudzulo ceremony for her mother took place and that she was aware of the determination by the District Commissioner for Mulanje District. [212] She testified that the Claimant was indeed one of the members of the clan. The witness was able to mention her aunties and uncles such as Magret Mwambucha and John Mwambucha. She told the Court that the Claimant was from the lineage of Magret Mwambucha. [213] Asked about Lydia Mwambucha, she testified that she was her sister. However, she passed away. The witness told the Court that she was aware that her late sister bought a piece of land adjacent to the disputed land. However, her mother sold that adjacent piece of land because she was in problems. Similarly, the other piece of land was also sold because of poverty. [214] The witness’s mother told the Court that the land was sold because it was not productive. The witness had just told the Court that it was sold due to poverty. Asked who the Court should believe between her testimony and her mother’s testimony, she said that the Court should believe both of them. The sale was triggered by the duo factors of the land not being productive and also because of poverty. She testified that they depended more on maize, even though some cassava and Nandolo (pigeon peas) would also grow on the land. [215] There was no re-examination of the witness. 44 [216] The third witness for the Defendant’s case was Mrs. Liza Chidati. She testified that she hailed from Milanzi Village, Traditional Authority Njolomole in Ntcheu District. She was Village Headwoman Milanzi. [217] She told the Court that the 1*t Defendant, Esther Mwambucha’s home village was Milanzi, Traditional Authority Njolomole in Ntcheu District. She was born there and got married to Mr. Samuel Mwambucha (deceased) in 1973 at the said Milanzi Village. [218] Soon after the wedding celebrations, the late Mr. Samuel Mwambucha and the 1*' Defendant left Ntcheu District and settled in Mulanje District, where the couple had met and were staying. [219] Per their custom/tradition, the late Mr. Samuel Mwambucha was supposed to pay “chabwalo” (to get registered in their village book) and to build a house for the 1*' Defendant. [220] However, the late Mr. Samule Mwambucha only paid “chabwalo” but never built a house for the 1‘' Defendant during the subsistence of their marriage. Nor was there any point in time, that the late Mr. Samuel Mwambucha built a house for the 1‘ Defendant which she destroyed or demolished. [221] The marriage advocates for the 1*' Defendant and the late Mr. Samuel Mwambucha were Henderson Ching’amba (for the 1*t Defendant) and Barnet Thanguli (for Mr. Samuel Mwambucha). 45 [222] Mr. Rowland Mlelemba was never a marriage advocate for the 1*' Defendant. In fact, in the year 1973 when the 1* Defendant and the late Mr. Samuel Mwambucha got married, Mr. Rowland Mlelemba was a toddler and could not possibly have been a marriage advocate for the marriage. [223] In October, 2019 the witness was visited by Mr. Rowland Mlelemba who came to construct a house for the 1“ Defendant at Milanzi Village. However, he never constructed the said house for his own reasons. [224] During cross examination, asked on the relationship between her and the 1* Defendant, she said the mother to Esther Mwambucha was her cousin. [225] The witness did not know the exact year in which the 1“! Defendant was born. She said the 1‘' Defendant went to Ntcheu District with her mother when she was so young. The 1* Defendant was not born at the village as such. [226] The witness told the Court that it was also correct to say that the mother to Rowland Mlelemba was also her cousin. She explained that the 1*' Defendant was taken by Mrs. Mlelemba while young. She was raised, and educated by her from the age of about 5. [227] The witness told the Court that at her village, “chabwalo” is received by an uncle and in this case, it was an uncle to the 1*' Defendant who received it. The uncle in this case, was her own brother. Unfortunately, he passed away. 46 [228] No place was allocated to the Mwambuchas to build their house at Milanzi Village. They said they would come back, which they never did. However, the place is no longer available now. [229] In October 2019, Mr. Rowland Mlelemba went to Ntcheu. He met the witness. He told the witness that he had come to build a house for his sister, the 1* Defendant. [230] The witness told Mr. Rowland Mlelemba that she needed to inform other people in the village. She then went to her home. On her return, Mr. Rowland Mlelemba left and never went back to Ntcheu District for that purpose. [231] The witness told the Court that in 1973, there was a place for the Mwambuchas to build their house, but not anymore. Most of the idle land has been sold. [232] The witness testified that she became a village headwoman four (4) years ago. She told the Court that she did not own any land. She was a village headwoman without land. All available land was allocated to her people. [233] The witness told the Court that she did not know that the 1‘ Defendant was being asked to leave the disputed land. She was never told about Msudzulo ceremony following the death of Mr. Samuel Mwambucha. [234] She told the Court that in Ntcheu District they also had a ceremony similar to Msudzulo ceremony, which takes place after one year from the death of a spouse. A7 [235] [236] [237] [238] [239] In the event of a determination against the 1*' Defendant by the Court, the Claimant and his clan members would have to buy her land in Ntcheu District on which to construct a house but the children would remain in Mulanje District because Mr. Samuel Mwambucha found her without children, so the witness, testified. There was no re-examination of the witness. Analysis and application of the law to the facts The Court would like to sincerely thank advocates on both sides for their industry in conducting research on the law. On other aspects of the case, the Court has had to do its own independent research as it ought to. The Court is also grateful to the advocates for making case authorities available to it. This eased its work in the preparation of this judgment. However, the delay in delivering this judgment is regretted. The first issue that the Court has to grapple with is whether or not following the custom of Msudzulo ceremony, the Defendants are legally justified in remaining on the Claimant’s clan land and claiming ownership of the same. Mrs. Esther Mwambucha, the 1*' Defendant herein, testified that she was born in the year 1945.?° This Court has no reason to doubt that because at common law, a person is a competent witness as to their age.”! 20 See Paragraph 172 above. 21 See for instance, Chimwemwe Chimbanga -vs- The Republic, MSCA Criminal Appeal No. 13 of 2017 especially the dissenting opinion of Mwaungulu, JA. See also Ngirunshuti William -vs- 48 [240] Mrs. Esther Mwambucha testified that she knew her late husband way back in the year 196177 when their relationship started. At the time, they were both residents of Mulanje District. Mrs. Esther Mwambucha got married to her late husband in the year 1973.7? The marriage was a customary law one. It took place at Milanzi Village, Traditional Authority Njolomole in Ntcheu District, the original home of Mrs. Esther Mwambucha. They had five children together and one step son, notwithstanding that three of them had since passed on. [241] Even though the wedding ceremony took place in Ntcheu District, the parties never lived there. Actually, immediately after the celebration of their marnage in Ntcheu District, they returned to Mulanje District and settled at Nkhonya Village, Traditional Authority Chikumbu at the land in dispute. Mrs. Esther Mwambucha testified that she and her late husband, Mr. Samuel Mwambucha started developing the disputed land in 1974.74 They lived on this land since then. She also told the Court that she did not have any other alternative land or place of abode other than the land in dispute.” At the time of the death of her husband in the year 2014, they had lived on this land together as a family under one roof for 41 years. Since the death of her husband, Mrs. Esther The Republic, Criminal Appeal Case No. 16 of 2022, (High Court of Malawi) (Principal Registry) (Criminal Division) (Unreported). 22 See Paragraph 169 above. 3 As above. 24 See Paragraph 144 above. 2° See Paragraph 176 above. 49 [242] [243] Mwambucha, has refused to vacate the disputed land. As of this year 2024, Mrs. Esther Mwambucha is or will be 79 years old. There are disagreements by the parties as to how the late Mr. Samuel Mwambucha became entitled to the disputed land. According to Mr. Rowland Mlelemba, the late Samuel Mwambucha was given the disputed land by Ruby Mwambucha.”° According to Efe Mandozo Phiri, it was Chief Mandozo who allocated a piece of land to Samuel Mwambucha’s grandfather, Mr. Mcloud.?’ During cross-examination, Efe Mandozo Phiri modified her version slightly. She testified that it was Village Headman Nkhonya who allocated land to Mr. Mcloud. Later on, Mr. Mcloud divided the land amongst his nieces, namely, Magret Mwambucha, Meria Mwambucha and Ruby Mwambucha.”® Then, it was Magret Mwambucha who gifted the disputed land to the late Mr. Samuel Mwambucha. According to the 1*' Defendant, Mrs. Esther Mwambucha, the land was given directly to her late husband by Mr. Mcloud in the year 1950.7? Regardless of how the late Mr. Samuel Mwambucha became entitled to the land in dispute, the fact remains that he was the one who was using it - at least for 41 years during the subsistence of the marriage with his wife, the 1“ Defendant herein. This was also accepted by the Claimant himself, Mr. 26 See Paragraph 85 above. 27 See Paragraph 124 above. 28 See Paragraph 127 above. 2° See Paragraph 141 above. 50 Andrew Kajao.*° The Claimant also accepted the fact that his late uncle, Mr. Samuel Mwambucha left behind a wife and children on this disputed land.*! He further accepted that the disputed land did not belong to his father or mother.*” [244] The Claimant testified that as a clan, they conducted Msudzulo ceremony to discharge or free the 1“! Defendant from marital ties that she had with the late Mr. Samuel Mwambucha. It was conducted on 25 March, 2017 and was witnessed by so many chiefs and relations from both sides. It was their expectation that after the Msudzulo ceremony was conducted, the 1* Defendant and her children were going to return to their original home village, because the Msudzulo ceremony was valid and lawful and was not done coercively on the Ist Defendant. In addition, his uncle the late Mr. Samuel Mwambucha had already discharged his obligation of building a house for his wife at her home village as by customary law required. However, the 1“ Defendant has been refusing to do so until now and they are still clinging to the clan land. It is for this reason that the Claimant is seeking, inter alia, a permanent order of injunction restraining the Defendants from using or accessing the land, exemplary damages for denying him and other clan members the right to use their land. 3° See Paragraph 50. 3! As above. 3? See Paragraph 55 above. 51 [245] Commenting on the Msudzulo ceremony, the 1*' Defendant dismally failed to convince this Court why she complained that the same was irregularly conducted. She did not proffer any good reasons for her position. At some point, the Court was even tempted to think that the 1 Defendant was an unreasonable witness. It could not understand how on earth a witness, no lesser than Senior Chief Chikumbu herself, who confirmed to have authored a ruling that she did not agree with, one could still claim that the said ruling was fake and did not believe it. She also said she did not believe the letter that had been authored by the District Commissioner on her appeal case.** [246] The Claimant testified that Msudzulo ceremony was an important custom. Even Mrs. Liza Chidati testified that they have a similar custom in Ntcheu District which takes place one year after the death of a spouse.* If truth is to be told, the custom of Msudzulo ceremony 1s practiced by many people in Malawi. Its effect, as was observed in the Vekeni decision is that a widow, and this Court adds, a widower, and the children, if any, are told to leave the village and go to the widow’s or widower’s original village. It does not matter how long the widow or widower would have lived in her or his late husband’s or wife’s village, or how old she or he is, or how old their children are. As long as she or he was there by virtue of her husband or wife, she or he does not belong there once the husband or wife dies. The androgynous approach in looking at the custom of Msudzulo ceremony 1s intentional on the part of this 33 See Paragraph 187 above. 34 See Paragraph 234 above. 52 Court because of the realization that there are both matrilocal and patrilocal societies in Malawi.*° [247] In terms of section 26 of the Constitution, every person has the night to use the language and participate in the cultural life of his or her choice. The practice of the custom of Msudzulo ceremony 1s surely part of the right to participation in cultural life of one’s choice. However, it is not the practice of every custom under the sun, and the right to participate in the cultural life of one’s choice that is protected by the Constitution and other written laws. It is only those that do not offend the Constitution and other written laws of the country that are protected and are enforceable. [248] Similarly, the Constitution recognizes customary law as part of our law in Malawi under section 200. However, it is only customary law that does not offend and is not repugnant to the Constitution and other written laws that is protected and is enforceable. [249] Consequently, where there is a conflict between the exercise of the nght to participate in the cultural life of one’s choice or the practice of a particular custom or indeed customary law and the Constitution and any other written laws passed by Parliament, that right to participate in the cultural life of one’s choice or the practice of that particular custom or indeed that customary law ought to give way to one or both of them. In terms of the hierarchy of laws of this country, the Constitution is the supreme law. Next in the line after the 3° See for instance, Mary Manyenje -vs- Manuel Mpingo and Melenia Pondani, Miscellaneous Civil Appeal No. 86 of 2018 (High Court of Malawi) (Principal Registry) (Civil Division) (Unreported), a decision of N’riva, J. 53 supreme law, are statutes or Acts of Parliament. Next in the line after these, is common law. Then after common law, of course, 1s customary law. This is inferred from section 200 of the Constitution. [250] In the instant case, following the Msudzulo ceremony which was conducted on 25" March, 2017 are the Defendants entitled to remain in possession of the Claimant’s clan land? The answer must be in the affirmative for two reasons. [251] First, to the extent that the custom of Msudzulo ceremony requires the surviving spouse to leave the land or place where she or he was staying with the deceased spouse and return to her or his original home village together with her or his children, if any, as the case may be, it is an unfair and unjust custom which offends the Constitution. The said custom does not reflect the rights, freedoms, principles and values espoused by the Constitution from which it draws its legal force. How so? [252] For instance, while section 28 of the Constitution has been interpreted by the Supreme Court of Appeal for Malawi that it sets no limit on what property, and that it includes and applies to customary land,*° the custom of Msudzulo ceremony says, the surviving spouse and children cannot acquire it by inheritance and they must leave the land. While the High Court of Malawi has interpreted section 28 of the Constitution that it is equally protective of equitable title and that it applies to a holder of customary land,*’ the custom of Msudzulo ceremony says, the surviving spouse and children cannot acquire 36 n4 above. 37 n5 above. 54 it by inheritance and they must leave the land. More specifically, it also offends the core principle of non-discrimination and the right to dignity and protection of the family unit. This Court is unable to appreciate why a surviving spouse and her or his children should be denied acquisition of customary land or the right to occupation, or right to possession and use of the same by inheritance. The custom of Msudzulo ceremony clearly offends the principle of non-discrimination as protected under section 20 of the Constitution. [253] Second, there is inheritable property in customary land. The nght to use and occupy customary land 1s also inheritable property. It 1s passed down from an allocatee to allocatee’s children and then to children’s children and so on and so forth.** In that regard, customary land or the right to use or occupy being inheritable property, the Defendants are clearly protected by Section 17 (1)(a) of the Deceased Estates (Wills, Inheritance and Protection) Act by virtue of being members of the immediate family of the late Mr. Samuel Mwambucha. In addition, section 4 of the Deceased Estates (Wills, Inheritance and Protection) Act is also very clear that except as provided under the Act, no person shall be entitled under customary law or any other written law to take by inheritance any of the property to which a deceased person was entitled at the time of his or her death. And so, the Defendants are the only persons who are entitled, at law, to remain in possession of the disputed customary land or 38 See Teleza Mitochi -vs- Master Bwanausi, Civil Appeal No. 68 of 2000, (High Court of Malawi) (Principal Registry) (Unreported) where A. K. Tembo, J (as he then was) remarked as follows: Once property is acquired, no person shall be arbitrarily deprived of that property. The court should state, in that regard, that acquisition of property includes the acquisition of the right to possession and use of customary land. 55 clan land. The Claimant and none of his alleged clan members are immediate family members of the late Mr. Samuel Mwambucha. Therefore, they are not entitled to inherit the late Mr. Samuel Mwambucha’s estate/property. The High Court has already held so in a number of decisions*’ as we have already seen and this Court does not see any reason why it should hold differently. The Deceased Estates (Wills, Inheritance and Protection) Act applies to inheritance of all property whether it is on customary land or otherwise.*” The Court therefore dismisses the Claimant’s prayer seeking a permanent order of injunction restraining the Defendants from using or accessing the land, exemplary damages for denying him and other clan members the right to use their land. If the Claimant and his clan members will ever molest the Defendants or interfere with their continued occupation or right of use of the land in issue, they will be guilty of being in contempt of court for which the Court may impose on them a fine or term of imprisonment. [254] There are only three circumstances in which the Defendants may leave the disputed land. First, is when their maker calls them home. That would be the work of natural law, a fate that befalls all humankind. However, their grandchildren, if any, would be entitled to occupy and use the land. Second, is when they choose to do so on their own volition. In this second case, they would be waiving all their strict legal nghts for whatever reason that they may have, if at all. Third, is when the 1*' Defendant, Mrs. Esther Mwambucha, chooses to remarry. The third circumstance 1s a matter of law. This is clear from section 17(4) of the Deceased Estates (Wills, Inheritance and Protection) 3° n10 and nl13 above. *° Nsanjama -vs- Nsanjama and others [2018] MLR 7 (HC). 56 Act. Even in this third scenario, and on the authority of this same provision, the 2" and 3™ Defendants who are children, as in offsprings of the 1* Defendant, would be entitled to remain on the disputed land. This disposes of the first issue. [255] The next issue that the Court has to consider is whether or not the Claimant and his clan members are at law entitled to repossess the land in question. [256] The foregoing analysis has already dealt with this second issue. The simple answer 1s that at law, the Claimant and his clan members are not entitled to repossess the land in question. The Defendants are entitled to inherit the said land or occupy and use the said land. [257] The third issue that the Court has to deal with is whether or not Mr. Samuel Mwambucha built a house for the 1“ Defendant at Magola Village, Traditional Authority Njolomole in Ntcheu District. [258] The Claimant, Mr. Andrew Kayao, alleged that his uncle, Mr. Samuel Mwambucha constructed a house for the 1*t Defendant at her home village in Ntcheu.*! In cross-examination, he testified that he had never visited Ntcheu and could not say with certainty that his uncle indeed built the said house.” When asked further about the source of his information, he told the Court that he had heard it from Mr. Rowland Mlelemba.** “| See Paragraph 40 above. ” See Paragraph 63 above. ‘8 See Paragraph 64 above. 57 [259] Mr. Rowland Mlelemba testified that during the subsistence of the marriage between the 1*' Defendant and the late Mr. Samuel Mwambucha, Mr. Samuel Mwambucha constructed a house for his wife at her village in Ntcheu District. It was roofed with corrugated iron sheets and built with burnt bricks.** He further told the Court that the 1*t Defendant demolished the house and sold the remaining property.* In cross examination, he testified that he actually saw the house that was built for the 1*' Defendant by the late Mr. Samuel Mwambucha. The witness said he used to visit Ntcheu District a lot in the 1980s.*° [260] Mr. Wilson Willard Phunduma testified that before the late Mr. Samuel Mwambucha died, he called him, and informed him together with Mr. Andrew Kajao that the 1*‘ Defendant had demolished the house which he had built for her at her home in Ntcheu District. In cross-examination, the witness told the Court that he had never been to Mphepozinayi himself in Ntcheu District and he did not see the house and he also did not witness the demolition of the house.*” [261] Mrs. Esther Mwambucha testified that the late Mr. Samuel Mwambucha never bought any land nor constructed a house for her at her home village in Ntcheu “4 See Paragraph 88 above. See Paragraphs 95 and 101 above. 46 See Paragraph 100 above. *” See Paragraphs 119 and 120 above. 58 District.42 The witness told the Court that she had never lived in Ntcheu District for any considerable period of time. [262] Mrs. Liza Chidati testified that the late Mr. Samuel Mwambucha never built a house for his wife in Ntcheu District which was demolished.*? She told the Court that no place was allocated to the family for them to build their house because after their wedding celebration, they never returned to Ntcheu District for the purpose.” [263] This Court is of the firm view that the late Mr. Samuel Mwambucha never built a house for his wife the 1‘ Defendant, at Milanzi Village, Traditional Authority Njolomole in Ntcheu District. Mr. Wilson Willard Phunduma told the Court that before the late Mr. Samuel Mwambucha died, he called him and informed him together with the Claimant that the 1*' Defendant had demolished the house that he had built for her. When the Claimant was asked in cross examination how he knew that his late uncle had built a house for the 1*' Defendant, he testified that he had heard this from Mr. Rowland Mlelemba.>! The question is, if what Mr. Wilson Willard Phunduma told the Court that he was informed by the late Mr. Samuel Mwambucha himself in the presence of Mr. Andrew Kajao that the house he had built for the 1“ Defendant in Ntcheu District had been demolished, why is it that Mr. Andrew 48 See Paragraph 143 above. * See Paragraph 220 above. °° See Paragraph 228 above. >! 942 above. 59 Kajao did not make reference to that conversation when asked how he got to know about the house? Mr. Andrew Kajao is a young man of 36 years. One would have expected him to remember what his late uncle told him about the issue of the house in the presence of Mr. Wilson Willard Phunduma. [264] Mr. Rowland Mlelemba claimed that he saw the house that was built for the 1 Defendant in Ntcheu District. He testified that he used to go there a lot. That was in the 1980s.°? This evidence is suspect. He is the man who testified that he was the marriage advocate for the 1‘ Defendant. It turned out that this was not true. Mrs. Liza Chidati testified that the marriage advocate for the 1“ Defendant was Mr. Henderson Ching’amba.°* The 1*' Defendant also denied that Mr. Rowland Mlelemba was her marriage advocate but Mr. Henderson Ching’amba.™ This makes sense because it is in evidence that at the time that the 1" Defendant got married to the late Mr. Samuel Mwambucha, Mr. Rowland Mlelemba was a toddler of about 8 years. Mr. Rowland Mlelemba did not also tell the truth about the age of the 1‘ Defendant. He testified that the 1st Defendant was born around late 1950s. The 1*t Defendant told the Court that she was born in 1945. It appears to this Court that Mr. Rowland Mlelemba had his own agenda in this case. He did not impress this Court as a man who told the truth. In short, this Court does not believe his testimony on the issue of the house and it is rejected. >? n45 above. °3 See Paragraph 221 above. >4See Paragraph 139 above. 60 [265] [266] The testimony of Mrs. Liza Chidati was not challenged that no place was ever allocated to the Mwambuchas for them to build a house because after their wedding celebration in the year 1973, they never went back to Ntcheu District for any considerable period of time, let alone for the house project. The 1* Defendant herself told the Court that no house was ever built for her by her late husband in Ntcheu District. This disposes of the third issue. The last issue is whether or not the Defendants are entitled to the reliefs they sought in their counterclaim. In the present case, the Claimant did not file any Defence to the Defendants’ counterclaim. In theory, this means that all the claims under the Defendants’ counterclaim have not been disputed by the Claimant through a Defence to the counterclaim or indeed by evidence. However, this Court is unable to grant them the said reliefs. The reason is simple. In terms of Order 18, rule 2 (1) of the Courts (High Court) (Civil Procedure) Rules, 2017 a claim and a defence are among documents that shall be verified by a sworn statement. The Defendants filed their Defence and Counterclaim in this matter on 30™ April, 2019. Then, on 1°t December, 2020 the Defendants filed an Amended Defence and Counterclaim. Order 18, rule 2 (2) of the Courts (High Court) (Civil Procedure) Rules, 2017 requires that where a claim is amended, the amendment shall be verified by a sworn statement unless the Court orders otherwise. This Court did not order otherwise. The Court searched the entire record for a sworn statement verifying the Defence and Counterclaim and found none. It also did the same for a sworn statement verifying the amended Counterclaim and found none. In terms of Order 18, rule 2 (3) and rule 3 (1) (b) of the Courts (High Court) (Civil Procedure) Rules, 2017 notwithstanding that there is no defence to their counterclaim and no evidence was adduced to dispute it, practically, the 61 Defendants may not rely on their Counterclaim as evidence of any of the matters set out in it. This is not an ordinary irregularity. On an application by a party, this Court may strike it out.°° Unfortunately, it is rather too late at this stage of the proceedings for the Defendants to rectify it through an application as envisaged by Order 18, rule 5 (2) of the Courts (High Court) (Civil Procedure) Rules, 2017. Consequently, this Court invokes Order 2, rule 3 (f) of the Courts (High Court) (Civil Procedure) Rules, 2017 and determines that the Defendants’ Counterclaim cannot stand. It is dismissed. [267] Costs are awarded in the discretion of the Court as is provided by law. The Claimant has not succeeded in his claims. The Defendants have also not succeeded on their counterclaim. The Court orders that each party shall bear its own costs. [268] Any party dissatisfied with this judgment has a right to appeal against it to the Supreme Court of Appeal for Malawi within 30 days from the date hereof. [269] Made in open court this 17" day of January, 2024 at Blantyre, Malawi. ii las M. D. MAMBULASA JUDGE °> See Order 18, rule 3 sub-rules (2) and (3) of the Courts (High Court) (Civil Procedure) Rules, 2017. 62