Kawalazi Estate Company Limited v Gondwe and Others (Civil Cause 272 of 2021) [2022] MWHCCiv 65 (23 February 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 272 OF 2021 BEFORE HONOURABLE JUSTICE KONDOWE BETWEEN KAWALAZI ESTATE COMPANY LIMITED...........:c0sseeseeeeeseseereeeeeeees CLAIMANT AND PATANI GONDWE..........ccsccececcececeecencescerenceceesensusesseusensnsesnteasees 15? DEFENDANT MSADABWE KUMWENDA. ...........-:ecceeesceccscereerencncusoeensesesensenes 28P DEFENDANT DICTONDY MPHANDE..........ccccecsscecceceneeeesceececeeeesencerenseeeeeeenes 38D DEFENDANT HUMAN RIGHTS DEFENDERS COALITION LIMITED .............-. 4°! DEFENDANT CORAM: HONOURABLE JUSTICE MAUREEN KONDOWE CHIBWE, COUNSEL FOR THE CLAIMANT MWAFULIRWA, COUNSEL FOR THE DEFENDANTS MRS I. MABASO, SENIOR COURT CLERK RULING 1. BACKGROUND TO THIS RULING 1 Tod By an inter partes application for an interim order of interlocutory injunction dated 23" September, 2021, the Claimant sought an interlocutory injunction from this court to restrain the Defendants whether by themselves, their servants (workmen), agents or howsoever otherwise from trespassing and interfering with its right to peacefully enjoy its land registered as Deed Numbers 60655 (Deed Plan 950/89), 61252 (Deed Plan 951/89) and 61253 (Deed Plan 952/89) otherwise commonly known as Kawalazi Estate, Kavuzi Estate and Mzenga Estate respectively situated in Nkhata Bay District pending the determination of this matter to its finality with a provision for costs. This application was brought pursuant to Order 10 rule 27 of the Courts (High Court) (Civil Procedure) Rules, 2017 (“the 2017 Rules”). It was supported by a sworn statement dated 7" September, 2021 sworn by Sangwani J. Hara, the Company Secretary for the Claimant. The Defendants opposed this application. Z. APPLICATION SUPPORTING SWORN STATEMENT ALLEGATIONS Dok 22 22 Paragraph 4 of the application supporting sworn statement alleged that the Claimant is a leaseholder and was at all material times entitled to the possession of land registered as Deed Numbers 60655 (Deed Plan 950/89), 61252 (Deed Plan 951/89) and 61253 (Deed Plan 952/89) otherwise commonly known as Kawalazi Estate, Kavuzi Estate and Mzenga Estate respectively situated in Nkhata Bay District; Paragraph 5 of the application supporting sworn statement alleged that the Claimant uses this land as a plantation. It grows cash crops on it such as tea, macadamia nuts and coffee: Paragraph 6 of the application supporting sworn statement alleged that beginning July, 2021 the Defendants demanded that it should relinquish its rights over part of its land to the community. The Defendants have on the basis of this demand allegedly mobilized some members of the community known as Kawalazi Community Members to unlawfully enter its land: 2.4 2.5 2.6 2H 2.8 a9 Paragraphs 7 and 8 of the application supporting sworn statement alleged that on Wednesday, 4" August, 2021 these community members led by the Defendants entered and camped on the land of the Claimant without its consent or authorization. They damaged crops, seedlings and buildings. They set alight the physical barriers and guardrooms that the Claimant put at the entries [entrances?] to the estate and housing areas. The Defendants and these community members again entered the land of the Claimant on 5" August, 2021. They demonstrated. They caused the Claimant and its employees anxiety and anguish. They brought its business to a standstill for close to 4 hours; Paragraph 9 of the application supporting sworn statement alleged that despite that its land is private the Defendants did not seek any consent or authorization to enter it and carry out their actions; Paragraphs 10 and 11 of the application supporting sworn statement alleged that the Defendants are still mobilizing and influencing the community to continue with their marching and demonstrations as well as the illegal entries into its land. They threatened to cause further damage to the structures that are on the land and physical injury to its employees when they tried to protect its property. The Defendants conducted themselves in this manner to force the Claimant to accede to their baseless demands; Paragraph 12 of the application supporting sworn statement alleged that the actions and intended actions of the Defendants are unconscionable, unethical and illegal. They amount to arbitrary deprivation of the property of the Claimant or its peaceful enjoyment; Paragraph 13 of the application supporting sworn statement alleged that unless they are restrained by an order of this court the Defendants are likely to continue with the destruction on its property; and Paragraph 15 of the application supporting sworn statement alleged that it is in the interests of justice that the Defendants are stopped from proceeding with their intention to trespass or continue trespassing into the land of the Claimant until the final determination of this matter. 3. OPPOSING SWORN STATEMENTS ALLEGATIONS 31 3.2 aed) 3.4 wo tn The 1, 2"¢, and 3 Defendants opposed the application for the interim order of interlocutory injunction the Claimant sought from this court. They filed individual opposing sworn statements dated 16" November, 2021, 22"4 November, 2021 and again 22"! November, 2021 respectively. These opposing sworn statements are identical and in substance they alleged the following matters: Sub paragraph 2.1 of the opposing sworn statement sworn by Patani Gondwe, the 1“' Defendant alleged that this application suppressed key and material facts. The Claimant did not disclose to this court that the demonstrations were carried out after full consultations with un-named authorities which authorized them. Sub paragraph 2.3 of this opposing sworn statement further alleged that the District Commissioner [for an unnamed District] and the police approved a route which ended at the offices of the Claimant where it was further agreed that the District Commissioner would receive a petition from the demonstrators; Sub paragraph 2.6 of this opposing sworn statement alleged that the allegation of the Claimant to the effect that the community members entered its private property without its consent or authorization is untrue. The bone of contention is that the boundaries between the land of the Claimant and that of the community which is customary in nature have not been properly demarcated; Sub paragraph 2.7 of this opposing sworn statement alleged that owing to the lack of proper demarcation of the boundaries a resurvey exercise was conducted over the land. This resurvey exercise allegedly showed that it was the Claimant which encroached onto parts of the customary land for the communities; Sub paragraph 2.8 of this opposing sworn statement alleged that the Claimant accepted the findings of the resurvey exercise and agreed to surrender the encroached parts of the customary land to the communities; 3.6 Ba a8 3.10 3.11 Sub paragraph 2.10 of this opposing sworn statement alleged that the community members exercised their right to peaceful assembly on the dates approved for the demonstrations. Through sub paragraphs 2.11, 2.12 and 2.13 of this opposing sworn statement the Defendants admit that on the first approved date for the demonstrations some village/community members were angry owing to the non- release of [an unnamed] Village Headman from police custody. The Claimant had allegedly agreed to have the Village Headman released but allegedly went back on its word; Sub paragraphs 2.14, 2.15 and 2.16 of this opposing sworn statement alleged that while the demonstrations were underway the 2" and 3" Defendants were not at the offices of the Claimant. They were at the police station with the arrested Village Headman; Sub paragraph 2.17 of this opposing sworn statement alleged that the demonstrations were peaceful, sanctioned by the authorities and used a route that all stakeholders approved on their second day: Sub paragraph 2.18 of this opposing sworn statement alleged that the 4" Defendant was never a part of the demonstrations. The only exception to this is that “at some point we thought of engaging him to help us mediate the issues with the Claimant”; and Paragraph 3 of this opposing swom statement alleged that the Claimant did not release the surveyor’s report to the villagers. It is not being transparent with how it intends to negotiate compensating them for the alleged encroachment of their alleged customary land. The 1‘, 2"! and 3" Defendants prayed for an order that the 4'" Defendant should be discharged as a party to this dispute. No injunctive reliefs should be granted against it with costs. The opposing sworn statements of Msadabwe Kumwenda and _ Dictondy Mphande, the 2™ and 3" Defendants in this application repeated the allegations made in the opposing sworn statement of Patani Gondwe, the 1‘ Defendant whose details are already highlighted in sub paragraphs 3.2 through 3.10 above. 5 a2 The 4‘ Defendant filed a sworn statement in support of an application to be discharged as a party to this case. This supporting sworn statement was sworn by Gibson Chisale, its Operations Director for the Northern Chapter. THE EVIDENCE 4.1 4,2 The Claimant produced and exhibited uncertified copies of a deed of identification and rent adjustment dated 19" February, 1988, indenture of assignment dated 3" April, 1989 and an assignment dated 3" April, 1989 marked “SJH 1”, “SJH 2” and “SJH 3” respectively. The 1° 2" and 3"! Defendants produced and exhibited no evidence in opposition to this application in their opposing sworn statements. The 4" Defendant produced and exhibited a certified copy of its certificate of incorporation dated 15" April, 2019 marked “GT — 1”. THE LAW ON THE GRANT OF ORDERS OF INTERLOCUTORY INJUNCTION 5.1 a2 Order 10 rule 27 of the 2017 Rules deals with applications for orders of interlocutory injunction. A court may grant an injunction by an interlocutory order in specific circumstances. These circumstances include where it appears to the court that, (a) there is a serious question to be tried; (b) damages may not be an adequate remedy, and (c) it is just to do so. A court can grant this order either unconditionally or on such terms and conditions as it considers just. Order 10 rule 1 of the 2017 Rules states that a party may apply during a proceeding for an interlocutory order of the court by filing an application in a proceeding in Form 4. Applications for orders of interlocutory injunction are not new. The High Court emphasized the principles of law that apply to determine the question whether or not an order of interlocutory injunction should be granted in the case of The Registered Trustees of Kids World Outreach Society vy. The Registered Trustees of Kings Victory Church Africa Land Cause No. 27 of 2018. 6 6. 6.1 6.2 OTHER LAWS OF RELEVANCE TO THIS DISPUTE THE 1994 CONSTITUTION OF THE REPUBLIC OF MALAWI Section 28(1) of the 1994 Constitution of the Republic of Malawi (“the Constitution”) states that every person can acquire property alone or in association with others. Section 28(2) of the Constitution states that no person must be arbitrarily deprived of their property. Section 29 of the Constitution states that every person has a right to freely engage in economic activity, to work and to pursue a livelihood anywhere in this country. Section 38 of the Constitution states that every person has the right to assemble and demonstrate with others peacefully and unarmed. THE PENAL CODE [CAP. 7:01 OF THE LAWS OF MALAWI] Section 314(1) of the Penal Code [Cap. 7:01 of the Laws of Malawi] provides for criminal trespass. It states that any person who - (a) enters into or upon any property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person lawfully in possession of such property; (b) having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate, insult or annoy any such person or with intent to commit any offence, is guilty of a misdemeanor termed “criminal trespass” and is liable to imprisonment for three months. THE POLICE ACT [CAP. 13:01 OF THE LAWS OF MALAWI] 6.3.1 Part X1 of the Police Act [Cap: 13:01 of the Laws of Malawi] regulates assemblies and demonstrations. Section 92 of the Police Act which is the interpretational section of this part defines an “assembly” as any assembly, meeting ... gathering ... or procession of more than fifteen persons in or on any public place or premises or on any public road — (a) at which the views, principles, policies, actions or failure to act of the Government or any other government, or a political party or political organization, whether or not that party or organization is registered under any applicable law, are publicly discussed, attacked, criticized, promoted or propagated; or (b) held to publicly handover petitions to 7 any person or to mobilize or demonstrate support for or opposition to views, principles, policies, actions or failure to act of any person or of any body of persons or any institution including the Government or any other government or any governmental institution; “Demonstration” is defined in this part of this Act as any demonstration, whether by way of a procession, march or otherwise, in or on any public place or premises or on any public road, whether by one or more persons for or against any person, organization, cause, action or failure to take action, which is organized to be publicly held for the same purposes as in the case of an assembly: “Public road” has the meaning assigned to it by the Road Traffic Act [Cap. 69:01 of the Laws of Malawi]. Section 2 of this Act states that a public road has the meaning assigned to it by the Public Roads Act [Cap. 69:02 of the Laws of Malawi]. Section 2 of this Act states that a “public road” is any road of a class described in section 3. Section 3(1)(a) through (f) of this Act classifies public roads as branch roads and estate roads as specifically defined in sections 5, 5A, 6, 7 and 8 of this Act. Section 92 of the Police Act also defines “riot damage” as any loss suffered as a result of — (a) any injury to, ... any person; (b) or any damage to or destruction of any property, caused directly or indirectly by, and immediately before, during or after, the holding of an assembly or a demonstration. 6.3.2 Section 93 of the Police Act outlines the procedure for the holding of lawful assemblies and demonstrations. Section 93(1) of this Act states that any organization which intends to hold an assembly or demonstration must appoint (a) a convener for the assembly or demonstration; and (b) a deputy to the convener appointed under paragraph (a). Section 93(2) of the Police Act states that the organization must notify the District Commissioner of the area, in writing, of the names and addresses of the persons appointed as a convener and deputy convener. Section 93(3) of the Police Act states that upon receiving the notice required by section 93(2) of the Act a District Commissioner notifies the Officer in Charge of a concerned police station. Section 93(4) of the Police Act allows the appointment of another person to act in place of either a convener or a deputy convener who are unable to perform or to continue to perform the functions with respect to which they were appointed. The particulars of this third appointed person must also be given to the District Commissioner who in turn notifics the Officer in Charge of a concerned police station. This third appointed person is deemed to be appointed under section 93(1) of the Police Act. In terms of section 93(4) of the Police Act no further appointment of a person can be made under this section of this Act unless a District Commissioner approves. 6.3.3 Section 93(6) of the Police Act states that a police Officer in Charge or another police officer they authorize represent the police at consultations or negotiations that are conducted under section 98 of this Act. 6.3.4 Section 94 of the Police Act spells out the functions and duties of a convener. A convener (a) gives notice under section 98(1) of this Act; (b) is responsible for the arrangements of any intended assembly or demonstration; (c) acts on behalf of their organization at any consultation or negotiations conducted under section 98 or in connection with any other procedure that this Act provides for at which their presence is required; (d) appoints marshals of their organization for the assembly or demonstration; and (e) must be present at the assembly or demonstration. 6.3.5 Section 95 of the Police Act spells out the functions and duties of a District Commissioner or persons authorized by them. It states that a District Commissioner or persons authorized by them and within whose area an assembly or a demonstration takes place perform the functions, exercise the powers and discharge the duties assigned to that office under this Act independent of the direction or interference of any other person or authority and with impartiality. 6.3.6 Section 96(1) of the Police Act states that where it is intended to hold an assembly or a demonstration the convener must give notice, in writing, of not less than forty-eight hours and not more than fourteen days to the District Commissioner concerned with a copy to the police Officer in Charge of a concerned police station. 6.3.7 Section 96(2) of the Police Act states that the District Commissioner must stamp every notice received under subsection (1) with their official stamp, and must indicate the date and time the notice was received by them. 6.3.8 Section 96(5) of the Police Act states that for the purposes of this section a convener who has given notice to a District Commissioner is entitled, if they so request, to receive back a stamped copy of the notice as acknowledgement by the District Commissioner of their receipt of the notice. 6.4 THE COMPANIES ACT [CAP. 46:03 OF THE LAWS OF MALAWI] Section 32 of the Companies Act [Cap. 46:03 of the Laws of Malawi] states that a company incorporated under this Act is a body corporate with the name by which it is registered and continues in existence. Section 38(1) of the Companies Act states that subject to this Act and to any other enactment, a company has within Malawi (a) full capacity to carry on or undertake any business or any activity, do any act, or enter into any transaction; and (b) for the purpose of paragraph (a) full rights, powers and privileges. ae DETERMINATION OF THE APPLICATION OF THE CLAIMANT tol There are two issues that this court needs to determine in this application. These are whether the Claimant should be granted the interim order of interlocutory injunction which it sought from this court with provision for costs or this application should be dismissed with costs. 7.2. The Claimant filed skeleton arguments which are undated. The 1‘, 2"4 and 3" Defendants filed no skeleton arguments. The 4'" Defendant filed skeleton arguments in support of an application for permission to be added as amicus curie. wae This court grants the Claimant the interim order of interlocutory injunction it sought from this court to restrain the Defendants whether by themselves, their servants (workmen), agents or howsoever otherwise from trespassing and interfering with its right to peacefully enjoy its land registered as Deed Numbers 60655 (Deed Plan 950/89), 61252 (Deed Plan 951/89) and 61253 (Deed Plan 952/89) otherwise commonly known as Kawalazi Estate, Kavuzi Estate and Mzenga Estate respectively situated in Nkhata Bay District pending the 10 751 determination of this matter to its finality with costs on the grounds that there is a serious question to be tried and it is just to do so for the following reasons: The Claimant is a legal person. It has a right to property which it is entitled to enjoy peacefully and quietly. Comparable foreign case law which is instructive on this point of the law is found in a decision of the European Court of Human Rights in Agrotexim and Others v. Greece 15/1994/462/543 accessible on http://hudoc.echr.coe.int, In this case this court interpreted article | of Protocol No. 1 to the European Convention on Human Rights which states that every natural or legal person is entitled to the peaceful enjoyment of possessions. Megarry, R., Sir and Wade, H. W. R., The Law of Real Property, London: Stevens & Sons Limited, (1984), 5 ed., p105 authoritatively state that possession is a root of title to and in land. There is no dispute between/among the parties to this application that there was an unlawful entry into the private property of the Claimant on the evening of 4'" August, 2021 and in the morning of 5 August, 2021. This is clear from the undisputed fact that in opposing this application the Defendants generally denied that such an alleged illegal entry occurred and yet proceeded in answer to this allegation to speak about matters that they had clear knowledge about which confirmed that some people allegedly other than them entered the private land of the Claimant. The Claimant alleged that the actions of the Defendants amounted to trespass and interference with its right to the peaceful enjoyment of its property. The Defendants denied this allegation and also denied any liability for these alleged actions. They instead asserted that none of them was present at the place of the Claimant when the matters that the Claimant came to this court to complain about occurred. They alleged that on 4 August, 2021 the 1“, 2" and 3 Defendants were at Nkhata Bay police station. They said nothing about where they were on 5 August, 2021. Their counter allegations in this respect are unbelievable considering the admission that sub paragraphs 5.11 and 5.12 of the opposing sworn statement of Msadabwe Kumwenda, the 2" Defendant makes to the effect that on 3 August, 2021 he, the 3™ Defendant and some villagers met the District Commissioner for 1, Nkhata Bay to present their concerns relating to land and for the District Commissioner to sign a petition which was to be presented to the Claimant. The District Commissioner advised them to discuss the matter with the Claimant prior to them exercising their constitutional right to peacefully demonstrate. They further admit in sub paragraph 5.13 of this same opposing sworn statement that they met the Claimant together with the Officer in Charge for Nkhata Bay police station and the District Commissioner. It was in this meeting that the Claimant allegedly agreed to have Village Headman Kalumpha and Martius Manda released from police custody. The Defendants know and assert that it was the failure to have this Village Headman and Martius Manda released from police custody that “infuriated the people”. The Defendants did not need to be present on the private land of the Claimant for them to mobilize and influence those who are alleged to have illegally entered it. It is this alleged mobilization and influencing of others to illegally enter its private land that the Claimant sought the interim order of interlocutory injunction for. The disputable matters that arise in this context suffice for this court to grant this interim order of interlocutory injunction to the Claimant which is currently in possession of the private land over which the alleged illegal entry occurred and to further order that they be determined to their finality in a full trial. It is so ordered; 7.3.2 The Claimant alleged that the illegal entry into its private land happened on the night of 4 August, 2021 and in the morning of 5" August, 2021. An examination of all the opposing sworn statements to this application that the Defendants filed shows that there is no response in any of them to this allegation. The puzzling response that is in them relates to an alleged lawful demonstration that took place much later than 4"" August, 2021 and 5" August, 2021 on 4"" November, 2021 and 5" November, 2021. The Defendants also alleged that they were at a police station with a Village Headman. The material facts that they chose to suppress with regard to this specific matter relate to the questions whether or not the arrest of this Village Headman had anything to do with the series of events that allegedly happened on the private land of the Claimant between 4" August, 2021 12 and 5" August, 2021, why they were with him and the legal capacity in which they were with him. These preceding matters pose questions before this court whose truthful answers are and can only best be found through their further interrogation in a trial. It is so ordered; 7.3.3 The interim order of interlocutory injunction that this court has granted the Claimant is also justified to arrest any further unauthorized entry into the private land of the Claimant and the destruction of its property pending the final determination of this dispute by this court. In the case of Thompson vy. Park [1944] 1 KB 408 CA, Goddard L. J. rejected a submission regarding the recovery of possession after a forced entry in the following apt manner: “If the defendant thought he had a grievance which could be lawfully asserted the courts were open to him ... The defendant, however, did not seek the intervention of the court, but took the law into his own hands and remedied the grievances under which he was suffering in a manner which seems to me to have been wholly deplorable ... It appears to me on his own showing he has been guilty of at least riot, affray, willful damage, forcible entry and, perhaps, conspiracy ... Having got back into the house, ... with strong hand and with a multitude of people, he has established himself in the house, and he then says: I ought not to have an injunction given against me to make me go out because... I got back here ... and therefore I want the status quo preserved. The status quo that could be preserved was the status quo that existed before these illegal and criminal acts on the part of the defendant. It is a strange argument to address to a court of law that we ought to help the defendant who has trespassed and got himself into these premises in the way in which he has done and to say that that would be preserving the status quo and a good reason for not granting the injunction. The plaintiff is clearly entitled to an injunction to restrain the defendant from trespassing on this land pending the trial of the action ...” The Defendants had no right known at law to mobilize and influence anyone to enter the private land of the Claimant without its authority, consent, licence or permission in the manner they are alleged to have 43 7.3.4 ce done without any due regard to the rule of law. They therefore ought to be restrained from threatening or continuing to threaten to do so through the grant of this interim order of interlocutory injunction to the Claimant pending the determination of this matter to its finality by this court. It is so ordered: Mwaungulu, JA (as he then was) acknowledged the justice that the above- mentioned case of Thompson v. Park serves in the case of Jourbertina Furnishers (Pty) Ltd t/a Carnival Furnishers vy. Lilongwe City Mall Miscellaneous Civil Cause No. 41 of 2013 which is clearly distinguishable from the present case on the alleged facts in which he held as follows: “The primary function of an interim injunction is to retain the status quo but only and only if doing so will not result in injustice, unfairness or inconvenience ... It is concomitant with justice and convenience where a judge on clear and admitted facts, concludes that one party’s case is much stronger than that of the other to direct the interim relief.” The legal practitioners for the Defendants filed a notice of their appointment as the legal practitioners for the “1*t, 2"? and 3™ Defendants as well as Human Rights Defenders Coalition Limited” dated 17'" November, 2021. They also filed skeleton arguments in support of an application for permission to add Human Rights Defenders Coalition Limited as amicus curie also dated 17" November, 2021. During the hearing of this application on 18" November, 2021 these legal practitioners orally argued that the 4" Defendant named Human Rights Defenders Coalition which the Claimant initially pursued was a non-existent party which was served with the case commencement documents wrongly. They further argued that there was no organization at law known as Human Rights Defenders Coalition. The substance of this argument was the omission of the word “limited” in the name of this Defendant. The relevance of this argument to the just resolution of this dispute became questionable for the reasons that the notice of appointment of legal practitioners dated 17° November, 2021 was clear that these legal practitioners were in court arguing against this application on instructions from the legal person named Human Rights Defenders Coalition Limited and the 14 7.3.6 defence dated 2™ December, 2021 which they filed made reference to Human Rights Defenders Coalition as a 4" Defendant. In terms of Order 2 rule 2 of the 2017 Rules an irregularity in a proceeding, or a document does not render a proceeding or document a nullity. Order 2 rule 3 of the 2017 Rules outlines the power that this court has to deal with the issue of any alleged non-compliance with the 2017 Rules that arises in the context of resolving a dispute. Order 2 rule 4(a) of the 2017 Rules is clear that an application must be made to this court within a reasonable time and before the party making it takes a fresh step in the proceeding after becoming aware of the irregularity. Order 2 rule 4(b) of the 2017 Rules requires that the application must set out the details of the failure to comply with these Rules. After filing the notice of their appointment as the legal practitioners for Human Rights Defenders Coalition Limited these legal practitioners should not have proceeded to also defend it in the defence dated 2" December, 2021. By defending it in the manner they did they took a further step in these proceedings and regularized the alleged irregularity relating to the omission of the word “limited” in the name of the 4" Defendant without filing any application under Order 2 rule 4(a) of the 2017 Rules. In the face of this regularization this court directed an amendment of the name of this 4" Defendant so it got captured accurately in these proceedings. It is telling that the 4" Defendant did not file any opposing sworn statement to this application. It only filed a sworn statement in support of an application for its discharge as a party to this action. There is no application on the file of this court for this application. It is also telling that the Defendants filed skeleton arguments in support of an application for permission to add Human Rights Defenders Coalition Ltd as amicus curie. There is also no application for this on the file of this court. An inevitable question that arises given these odd procedural matters relates to the interests that the 4"" Defendant had in the events that led to the alleged illegal entry into the private land of the Claimant, the subsequent alleged destruction of its property and the alleged threats of physical injury to its employees. Given the private nature of this dispute the matters that compelled the 15 4'" Defendant to apply for permission to be discharged as a party to this action or to be added as an amicus curie without actually filing the respective applications for these orders in this court currently remain undisclosed owing to what this court believes to be a suppression of material facts on the part of the Defendants given their admitted association. A trial would therefore best unravel the truth about what transpired prior to and after the series of events that led to this dispute. It is so ordered. 8. Given the matters highlighted in sub paragraphs 7.3.1 through 7.3.6 of this ruling this court grants the Claimant the interim order of interlocutory injunction that it sought from this court. It is so ordered. Section 30 of the Courts Act [Cap. 3:02 of the Laws of Malawi] states that the costs of court proceedings are in the discretion of a court. Order 31 rule 3(1)(a)(b) and (c) of the 2017 Rules amplifies this matter. The Defendants shall pay the Claimant the costs of this application. It is so ordered. These costs shall be negotiated and agreed between the Defendants and the Claimant through their respective legal practitioners failing which the Registrar is directed to assess and award them to the Claimant on the indemnity basis. It is so ordered. 9. THE DEFENDANTS’ RIGHT OF APPEAL AGAINST THIS DECISION This court has granted the Claimant the interim order of interlocutory injunction it sought from this court. This court confirms that the Defendants are at liberty to appeal against this decision before a single Member of the Supreme Court of Appeal. It is so ordered. ‘ = Delivered at Mzuzu this....... a> | sania day of .. FF BAVREY 9009 M. KONDOWE JUDGE 16