Kutengule & Anor. v General Farming (55 of 2009) [2010] MWSC 29 (1 September 2010)

JUDICIAR\ IN THE MALAWI SUPREME COURT OF APPEAL AT BLANTYRE MSCA CIVIL APPEAL NO. 55 OF 2019 (Being iligh Court of Malawi, Liiongwe Registri'. Civil Cause No. 829 of 2008) BETWEEN: DR KUTENGULE CO\A/EN NGALANDE.. -AND- IS'APPELLANT .....2ND APPELLANT GE]YERAL FARMING LIMITED RESPONDENT CORAM: TI{L THE THE HOI\OURABLE JUSTICE TAMBALA SC, JA HONOURABLE JUSTICE TEMBO SC, JA HONOURABLE JUSTICE TWEA. JA Absent, of Counsel for the Appellant I(aluwe, of Counsel for the Respondent Mr E. W. Nfu,ale - Official Interpreter JUDGMENT Tu'ea, JA This is an appeal against the ruling of Justice Chombo deliveled on 14'i' Juiy, 2009, dismissing the appellants' application to discharge an order of injunction granted in favour of the respondent. The r"espondent, General Farming Lirnited, by writ of summons sued the fir'st and second appellants, for possession, darnages fot" trespass, a declaration that the appellants are not entitled to the use of the iand and an injunction restraining the appellants frorn entering or using the land in issue, on 7'l'November'2008, On 13'l'November, 2008 the respondent obtained an injunction, eX - pafte, restraining the appellants, their servants, agents or whosoever fiom entering upon ol continuing to construct structures on the land. An inter-par1e hearing was set for and heard on 13'r'February, 2009 when, again, the court held in favour of the respondent. On ?0tr'March, 2009, the appellants filed a summons to discharge the order of injunction on grounds, inter alia, that the respondent suppressed some material facts. The application to discharge was supported by an affidavit and supplernentary affidavit of counsel, Happy Thengolose, on behalf of the appellants, sworn on 18th March and 2r'td April, 2009 respectively. The gist of the appellant's affidavits was that the service on the first defendant was inegularly effected under Order 10 r 4 of the Supreme Courl Practice Rules, because the respondent did not obtain leave of the court and that the plaintiff then, Press Agriculture Limited, had no standing to sue as the proper parly was the respondent. The surnlnons to discharge was heard on 2"d July. 2009. However, before the hearing the respondent sought, and were granted, leave to atnend the summons by substituting Press Agriculture Limited with the respondent as the plaintiff. We must mention at the outset however, that it would appear that the Judge, when making her ruling, overlooked the amendment and continued to treat the suit as brought in the name of Press Agriculture Limited. At the hearing of the appeal, however, the appeliants conceded that the amendment settled the issue of the wrong pafty suing. We will not, therefore, dwell on this substantively. When this appeal was called, after preliminary issues, the appellants decided to pulsue grounds I, 2 and 3 oniy of the appeal, which related to service of the surnnlons. Nonetheless we shall still comment on the other submissions. The respondent herein purported to have served the process on the first appellant under Order I0 r 4 of the Supreme Courl Practice Rules. This rule orovides that: "4 - Where a wril is indorsed witi-r a claim for the possession of land. the court may - (a) il satisfied on an ex - parte application that no persoll appears to be in possession of the land and thal service cannot be otirerwise effected on an)' defendant. authorize service on that defendant to be ef-fectecl by affixing a cop.v of the writ to some conspicuous part of the landt (b) if satisfied on such an application tiral no person appears to be in possession of tire land and that sen,ice cor"rld not otherwise have been effected on an)' defendant. order that service already effected b)' affixing a copl/ of the writ to sottre conspicuous palt ol'the land shall be treated as good service on that defendant." The learned Judge in the court belou,held that - "The particular order in question does not make it rnandatorv for a pafi)' to specifically' make an application for particular sen,ice before it is effected". With due respect, we find that the Judge rnisled hersclf. Both paragraphs (a) and (b) of Order 10 r 4, pre - suppose that there be an appiication upon which the court will be "satisfied." The notes to this ruie make it clear that such application shall be before the Registrar. It is our view that had the learned Judge quoted the whole rule, she u,ouid not have come to such a conclusion. It is important to note that the rules require that, ordinarily, a writ fol possession of land should be served personally on each defendant in the ordinary way. Other modes of service however, for example. ser\/ice b;, post, may be employed, Onlir if such othel modes of service cannot be effected would one apply to invoke Order 10 r 4. In any' case, by the notes thereto, one must show why and/ol'how other modes are ineffectual to justifl, such a seryice. This node of service is therefore an exception. It puts a high onus on the applicant to satisfo the court that such set'r,ice is justified b1' shor.r,ing that no person appears to be in possession of the iand to be recovered and that service could not otherwise be effected on an1' defendant. In the present case it is on record that the second appellant was in custody and it appears that. although the respondent knew wiro the first appellant u,as, no effort was rnade to discorrer where he was or iived. We find that there \ /as solneone in possession of the land and that service could have been effected otherwise. We hold therefore, that this mode of service was bad at lau,. However, we are mindful of Order 2 r I of the Supreme Court Practice Rules. Such failure to comply with the rules would be deemed an irregularity but wouid not nullify the proceedings. We so hoid We nou'come to the issue of trespass and the injunction. Trespass to land, by definition, consists of any unjustifiable intrusion by one person upon the land in possession of another'; where possession llieans occupation or physical controlr. There is no dispute that the respondent had occupied and controlled this piece of land, which is delineated in the lease hold title. The first appellant, this notu,ithstanding, averred tl-rat this land was customary land which he purchased from the second appellant. It is ciear from the evidence however, that there was a period of non activity on the land which the second appellant exploited to "sell" the land. We find that the period of inactivity and the conduct by second appellant did not defeat the long and continued asser-tion of title to and possession of the land by the respondent: See Fowlev Murine (Emswortlt) Ltd V Gsfford [19681 2OB. 618. This case also supporls the proposition that a person in possession of land has a perfectly good title against the whole world except the rightful owner. Furlher that a defenclant cannot set Lrp the title of a third part), unless he himself claims undel it. In the present case, as we already found, there was no dispute as to the title of the respondent. Further, the first appellant's assertion, that he bought customary land from second appellant, cannot be sustained. First and foremost no one can sell and, therefore, buy customary land: See Javshree Putel V Khuze Kopets ond Kuks Holdines Ltd, Civ, Cause 3277 of 2003 also Nicco J. G. Kuntanga V Josisnns Leclerq and Regional Contmissioner for Lsnds, Ci'tt. Ctuse 2829 of 2006. Secondly, to sustain such an argument, fiom the possessor), point of view, the appellants would harze to shou,who was in possession of that land befole the purpofted "sale." The second appellant did not establish that he was in possession of the land in issue before the purported "sale". We further note that the first appellant did not clairn possessory right from any person, institution or the State. His clairn was for ownership. It is our judgrnent therefore, that, other factors notwithstanding, the respondent's possession was not defeated and therefore they were entitled to bring the action for trespass. Our lecent decision in Chitsksle Plantstion Limited V Msrv Woodworth und Lisneti Gremu MSCA. Cir'. Appeal 68 0f 2009, fufther supports this. 'Clelk ancl Linclellon Torts. l4'r'ed, par 1311 I Ibid par 13 1 8 On whether or not the injunction should have been prohibitory or mandatory, we find that the prohibitive injunction was proper in this case. A trespasser rvho enters and expels the person in possession canllot, without acquiescence, give lrirnself possession at law: See Thompson V Park tL944l K. B. 408. The appellants entered upon the land of the respondent; thereon the first appellant cultivated marze and groundnr.rts and was constructing perrnanent structures. It was fitting and proper to restrain them fi'om entering on the land and carrying thereon any further activities. To hold othenvise wor-rld lend the trespass sorre colour of right. The status quo in issue is that u,hich obtained before the appellants entered on the land and not what obtained after their wrongful entry. It is our judgrnent therefore, that this appeal must fail entirely with costs to the respondent. Delivered in open Court on this 2"0 da7,of September,20l0 at Blantyre. Signed: HON. JUSTICE TAMBALA SC, JA Signed: .=-A--,t---- HON. JUSTICE TEMBO SC, JA Signed: HON. STICE TWEA, JA