Kuwali v Daniel (Civil Cause 202 of 2012) [2017] MWHC 883 (18 May 2017)

London Kuwali v Mr Daniel Civil Cause No 202 of 2012 Land IN THE HIGH COURT OF MALAWI MZUZU REGISTRY: CIVIL DIVISION MISC. CIVIL CAUSE NO 202 OF 2012 Between London Kuwalli o.oo csssescsssessss essence. Plaintiff -and- MP. Daniel occ esssteeeses svete. Defendant CORAM: HONOURABLE JUSTICE D. A. DEGABRIELE Mr. Ww Mwafulirwa Counsel for the Plaintiff Ms T Chatupa Counsel for the Defendant Mr. A. Kanyinji Official Interpreter DeGabriele, J RULING Introduction The plaintiff herein, London Kuwali was granted an ex parte injunction on igt December 2012. He later filed an ex parte application for the final judgement under O19r7 of the RSC on filed on 17% March 2014 and a final judgement was entered on 29" April 2014, The application The defendant herein, Daniela Kartscher has made two applications. In the first application, the defendant is seeking to have a default judgement set aside. The default judgement was entered on 24th April 2014, pursuant to 019r13 of RSC. London Kuwali v Mr Daniel Civil Cause No 202 of 2012 Land The applicant was granted a stay of execution of the default judgement on 24 July 2015, The application is supported by the affidavit sworn by Ms Daniela Kartscher and the defendant further filed skeleton arguments. The major argument by the defendant herein is that she was not served with the process. She claims that she only became aware of the proceeding on 18 June 2014 when she was served with a letter from the plaintiff lawyer stating that the court had made an order in favour of the plaintiff (DK7). She was not served with the injunction order nor the writ that was used to commence the proceedings. She also states that she is just an employee of Northern Lakeshore Adventure Limited, which is making some developments on the land leased to Nairuth Chirwa, and Nairuth Chirwa was not also served with any court process. The defendant also states in her submissions in court through counsel that she is not ‘Mr Daniel’ but Ms Daniela Kartscher. The second application is an application for leave to have a party join the proceedings. This application is supported by the sworn affidavit of Nairuth Chirwa who states that she is the legal owner of the land in dispute. She states that the plaintiff sued the wrong party as the land belongs to her and Ms Daniela Kartscher, who physically lives on the land, is one of the directors for Northern Lakeshore Adventure Limited which is doing some developments on her land. She states that since she is an interested party in that the land under dispute was leased to her, it is in the interests of justice that she be allowed to join the proceedings and defend her rights and interests. The response The plaintiff. London Kuwali swore an affidavit in opposition of the application to set aside the default judgement. He states that he is the rightful owner of the disputed land and as decided by Acting Senior Chief M’bwana, who made a decision as regard the boundary acispute between himself and Daniela Kartscher on 25" January 2013 (LK1). The plaintiff avers that the applicant failed to act on London Kuwali v Mr Daniel Civil Cause No 202 of 2012 Land time and sat on her rights because she should have appealed to the High Court if she was not satisfied with the decision of the Chief. The plaintiff further claims that the defendant’s current legal application was to deny him of the enjoyment of the fruits of his litigation. Analysis At this point this court is not called upon to decide the merits or demerits of this matter. This hearing is merely to make orders based on the sworn affidavit and the claims before me on whether or not the default judgement can be set aside, and whether or not a party can be added to these proceedings. A stay of execution of the default judgement was indeed granted on I note that 24 July 2015. I have read the affidavits and concluded that there is a dispute regarding a piece of land, in particular as to who holds the lease on the same. The plaintiff has argued that the defendant sat on their rights by failing to challenge or appeal against the decision of the Chief which was made in October 2013, I do not agree. I note that the plaintiff first sought an ex parte injunction in this court, then approached the chiefs and then got an ex parte final judgement based on the argument that the defendant had not shown interest to defend the matter. I also note that the Chief’s decision was about a boundary dispute, whereas the writ and the affidavits in support of the ex parte order of injunction as well as the affidavit in opposition of the application to set aside the default judgement all allude to the fact of a disputed ownership of a piece of customary land and the leasing of the same. For these reasons, it is in the interest of justice that the matter is heard and determine based on its merits. The application to be added as a party to the proceedings was first brought before the court on 12" August 2014 and i* July 2015 but no action was made on the same. Having read the affidavit of Nairth Chirwa and having examined the attachments mace therein, I conclude that there is need for her to be heard. London Kuwali v Mr Daniel Civil Cause No 202 of 2012 Land Orders I make the following orders; 1. Pursuant to 019r9 and O13r9, I am convinced that there is a defence on merits which ought to be heard, and I accordingly set aside the default judgement. 2. In my discretion and in the interest of justice, Nairuth Chirwa should be added as a party to the proceedings. 3. The record should reflect the defendant as Ms Daniela Kartscher and not as Mr Daniel 4, The matter herein must be heard fully as a matter of urgency since it has gone on for a long time. I therefore set the matter to be heard on 31% May 2017 at 10:00 am Costs Much as costs follow the event, I order that each party pays their own costs in this matter. Made in Chambers at Mzuzu Registry this L&th day of May 2017 f, wo | t D. A. DaGerele JUDGE