MacNally t/a Kachere Cafe, Bar and Restaurant v Nyimba (Civil Cause 434 of 2020) [2022] MWHCCiv 63 (24 May 2022)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 434 OF 2020 BEFORE HONOURABLE JUSTICE KONDOWE BETWEEN HUMPHREY MCNALLY t/a KACHERE CARE TAR, & RESTAURANT veississtossscuceresoonenovisnenusnsssniwonniizaiasannonnsnstenseonensenaneisentes CLAIMANT AND ANGELA KALUSO NVIMB Adcscssssvcesvsansssiiarscveasereeressnessencnssieaversiconee DEFENDANT CORAM: HONOURABLE JUSTICE MAUREEN KONDOWE Mwafulirwa, Counsel for the Claimant Munthali, holding brief on behalf of Counsel Mhango, Counsel for the Defendant Miss I. Mabaso, Senior Court Clerk RULING 1. BACKGROUND TO THIS RULING i3 By specially endorsed summons dated 14" December, 2020 the Claimant commenced this legal action against the Respondent [substituted with Defendant throughout this ruling]. His summons was irregular in that he or his legal 1 Le practitioners neither signed nor dated it. The summons did also not comply with Form | which the Courts (High Court) (Civil Procedure) Rules, 2017 (“the 2017 Rules)”) prescribe. Through this irregular summons the Claimant sought the following reliefs against the Defendant: (a) A declaration that he is the rightful and legal owner of leasehold land situated at Chintheche Turn Off in Mgolozera Village, Traditional Authority Mkumbira in Nkhata-Bay District; (b) An order of specific performance of clause 4 of a sale agreement for the above-mentioned piece of land which he concluded with the Defendant; (c) A declaration that an easement in the form of a right of way and car park exists over the Defendant’s land in favour of his land; (d) A permanent injunction restraining the Defendant from in any way tampering with the access road to his business premises and from harassing and disturbing him, his customers and his business operations; (€) Damages for loss of business from the time of closure of the premises up to their reopening to be assessed by this court; (f) Damages for destruction of the landscape and flowers to be assessed by this court; (g) MK600, 000.00 indemnity for legal fees he paid; and (h) Costs of this legal action. Through his statement of case dated 9'" December, 2020 the Claimant alleged the following matters against the Defendant: (a) He is an American national who resides at Nkhata-Bay Boma with legal rights and a valid business permit to conduct business within Malawi; (b) The Defendant is a Malawian national who resides in Nkhata-Bay District; (c) On 12™ September, 2016 he and the Defendant executed a sale of land agreement. He purchased a leasehold interest at the purchase price of MK2, 000,000.00 at Chintheche Turn Off in Mgolozera Village, Traditional Authority Mkumba in Nkhata-Bay District; (d) Upon purchasing the land he frequently left this country for the United States of America to solicit and arrange resources for its development; (e) To secure his ownership of the land he instructed that it should be registered in the name of Mr Charles Mwase, his Malawian Personal Assistant who was to hold it on trust for him. An Assignment of Lease into his name was to be effected later when he came to develop the land. On 1™ 2 January, 2017 the land was registered and demised to Mr Charles Mwase. An Assignment of Lease from Mr Charles Mwase to him was registered and entered in the Deeds Register as Deed No. 91944 dated 21" June, 2019. He allegedly pays rent to the Ministry of Lands; (f) Between 2017 and 2019 he developed the land and established Kachere Café’ Bar and Restaurant on it. He constructed a wall fence which separates his property from that of the Defendant which adjoins it; he planted ornamental flowers around the fence and the entrance gate and also constructed several buildings and resort structures on the land; (g) Through clause 4 of the sale agreement he and the Defendant agreed to share the only access road and customers’ parking area which is on the Defendant’s land. There is no way to access his land except through the land of the Defendant; (h) On the basis of clause 4 of the sale agreement he constructed an access road and entrance to his premises. This accommodates two motor vehicles and is also used by cars and trucks which deliver construction materials. Surrounding neighbours also use this access road. He extensively cleared and landscaped the land to create a car park for his own customers in the presence of the Defendant; (1) The Defendant allegedly began complaining that the land had been sold cheaply when she allegedly noted how developed it was becoming. She allegedly used all sorts of (unspecified) means to reclaim it. She allegedly claimed that the land belonged to the deceased estate of late R. V Nyimba. She allegedly also claimed that the development was a joint venture. She on diverse occasions allegedly insulted, humiliated and harassed him based on his status as a foreign national; (j) He officially launched and opened his business on 10" December, 2019. On 13" December, 2019 allegedly in breach of clause 4 of the land sale agreement the Defendant allegedly blocked the entry road to his business with pine logs and planted flowers in and around the road. This allegedly narrowed the road and completely denied the access of motor vehicles to his business premises. He shut down the business premises on 28" February, 2020; and (k) On 4" April, 2020 the Defendant maliciously rented the agreed parking space to a local restaurant and car wash. On 17'" September, 2020 she maliciously destroyed 3 and dug out the landscape and ornamental flowers that were planted along the wall fence. The conduct and behavior of the Defendant are unlawful, reckless and unconscionable against him. He is a lawful resident and business investor. This conduct breaches clause 4 of the land sale agreement. These acts and conduct have impaired his rights to quiet and peaceful enjoyment of the leased land, to acquire property and to freely engage in economic activity under the terms of his business permit. By her defence dated 4" January, 2021 the Defendant alleged the following matters against the Claimant: (a) The purported sale of land agreement did not materialize. The Claimant lacked legal capacity to buy the land owing to his being non-Malawian. There was no advertisement in the newspaper calling for Malawians to exercise the first option [...]. There was no consent from the Minister responsible as provided by the Land Act. The Defendant therefore proceeded to enter into the sale agreement with Charles Mwase. She did not enter into a sale agreement with the Claimant; (b) She is a wrong party to these proceedings. This action must be dismissed with costs. Even if she agreed with the Claimant which is denied the agreement would still be void on account of lack of legal capacity on the part of the Claimant. A lease transfer agreement was concluded with Charles Mwase. The Claimant was not privy to it; (c) As regards the alleged agreement to share an access road the Claimant closed this road by constructing a high wall. He cordoned himself off from the only access he had to her land. After sealing off the original access point he unilaterally created three other access points into her land without her consent or communicating with her. This access point was in front of a bakery which led to two different gates while a third one was behind the bakery which led to a third gate; (d) The Claimant uprooted from her land rare cycads which she imported from the Republic of South Africa at the alleged cost of 15,000 South African Rands. These were removed and disposed of without her consent. He built concrete slabs on her land without her permission and consulting her. This limited her use of her 4 land. He planted foliage on her property without permission. She allegedly raised these matters with him but he allegedly resorted to bullying and insulting her. He indicated that he could do as he pleased because he allegedly owned part of her property. She brought these concerns to the attention of the Claimant through a letter dated 1*t January, 2020 which he never responded to: (ec) When the Claimant opened his bar, he allegedly failed to comply with health and sanitation regulations. He allegedly allowed his inebriated customers to urinate on her bakery lawn. This caused an unbearable stench on the whole area and raised serious health concerns. Most mornings the bakery area was littered with broken beer bottles. The Claimant did not pick up this litter. The Defendant did. Some customers shunned her place. The customers of the Claimant parked their cars all over her land. They destroyed lawns, flowers, plants and the landscape; and (f) Most of the bar business of the Claimant took place at night when she was not around. The reasons for the closure of his business had nothing to do with her. The Claimant is verbally aggressive boasting that he is well-connected to authorities and cannot be touched. 1.4 By her counterclaim dated 4"" January, 2021 the Defendant alleged the following further matters against the Claimant: (a) By virtue of the actions of the Claimant she has allegedly lost and suffered the following respectively: (i) Rare cycads (expensive flowers): (ii) Her landscape, lawns, plants and flowers; (iii) Peaceful enjoyment of the land; (iv) Business disruption; (v) Trespass and encroachment into her land; (vi) Unlawful invasion of the land; and (vii) Intimidation and harassment. These actions allegedly comprise unlawful entry into her land and uprooting her rare cycads valued at the sum of 15,000 South African Rands; unilaterally creating three access points without her consent or consulting her; destroying her garden and lawn and building concrete slabs without permission or consultation, defacing, interfering with and limiting her use of her own land; planting foliage on her property without her permission: allowing customers to park their cars on her lawn, plants and flowers 5 leading to their destruction; and allowing inebriated customers to urinate on the lawn of her bakery leading to a suffocating stench in breach of Health Safety Regulations. (b) She therefore counterclaims the following from the Claimant: (i)15,000 South African Rands being the value of the damaged rare cycads; (11) Damages for destruction of landscape, lawn, flowers and plants to be assessed; (iii) Damages for trespass to be assessed; (iv) Damages for encroachment to be assessed; (v) Loss of business to be assessed (quoted verbatim), (vi) A declaration that the Claimant should stop claiming her land; (vii) A declaration barring the Claimant from accessing her land in any way; (viii) A permanent injunction barring the Claimant from trespassing on her land; and (ix) Costs of this action. LS By his reply to the defence dated 26" January, 2021 the Claimant alleged the following further matters against the Defendant: (a) He executed a valid sale agreement for the land with the Defendant. The onus to comply with the requirements of the Land Act as they related to the advertisement of the proposed sale in newspapers and the application for and grant of the Ministerial consent lay on the Defendant. If no valid sale agreement got concluded the Defendant or any interested third party should have legally challenged the transaction prior to the development of the land. The Claimant reiterates that the lease got transferred to Charles Mwase owing to an arrangement that was agreed upon among himself, the Defendant and this Charles Mwase; (b) A footpath that initially led to the premises of the Defendant is what got converted into the agreed access road. This was inevitable owing to the geography of the land. He designed the front gates. A small one for people to use and just next to it another one for motor vehicles. The third one on the back of the property is for decorative rather than access purposes; (c) At the time the land got purchased it was in an abandoned state and bushy. The Defendant was present when it got cleared. Valuable plants 6 1.6 1.7 such as Mango were preserved. They are still on the land. He likes ornamental and exotic plants. He is familiar with cyeads which he would have preserved. South African cycads are protected plants. They require a permit from the South African Government for them to be owned, possessed, transported, grown, bought or sold. He did not build any concrete slabs on her land as alleged. He planted flowers and bamboo within an inch of the wall fence to beautify his premises, and to hold the soil on the wall fence so it is strong. These flowers are not on the land of the Defendant. He never discussed the plants and/or concrete slabs with the Defendant. All the Defendant did was to complement him on how beautiful the place was becoming; (d) His business is registered and licensed. Its sign post is licensed. He complied with all sanitation and health regulations to run the bar and the restaurant. His premises have decent urinals and toilets. His customers would never urinate anyhow on his premises. The Defendant has no customers. She has never run any bakery or any kind of business on her premises. There is only a dilapidated unfinished building next to his premises. The car park was created by agreement between him and the Defendant in their agreement for the sale of the land. The Defendant is allegedly interfering with this agreement prompting him to commence these legal proceedings. In his defence to the counterclaim also dated 26" January, 2021 the Claimant alleged the following final matters against the Defendant: (a) The Defendant never had any cycads on her premises. She must produce her permit documents for them if they ever existed; and (b) The three gates he constructed are on his own land. He did not need the authority or consent of the Defendant to construct them. He denies all allegations the Defendant makes in the counterclaim. He also denies the particularized alleged loss and damage. By an inter-partes summons on an application for an interlocutory injunction dated 1° November, 2021, the Claimant sought the following orders from this court pending the determination of this matter or its further orders: (a) An order of interlocutory injunction to restrain the Defendant or any person unknown to him either by themselves, their servants or agents or otherwise howsoever from interfering with his use of the shared parking and access road that lead to his business premises; (b) An order of injunction to restrain the Defendant or any persons unknown to the Claimant either by themselves, their servants or agents or otherwise howsoever from insulting, humiliating or otherwise causing trouble on his business premises; and (c) Costs of this action. 1.8 The application for an order of interlocutory injunction was brought pursuant to Order 10 rule 27 of the 2017 Rules. Counsel for the Claimant swore its supporting sworn statement. The application was opposed. APPLICATION SUPPORTING SWORN STATEMENT ALLEGATIONS 21 Paragraph 4 of the application supporting sworn statement stated that the Claimant is an American national. He has a business permit to conduct and carry on his business styled Kachere Café Bar and Restaurant; 2.2 Paragraph 6 of the application supporting sworn statement stated that as a foreign investor the Claimant has had passion to promote Malawian tourism and to create wealth for the Malawi economy through tourism promotion; Zo Paragraphs 7 and 8 of the application supporting sworn statement stated that the Claimant invested a café, bar and restaurant on a piece of land which he bought from the Defendant. 2.4 Paragraph 9 of the application supporting sworn statement stated that the Claimant and the Defendant agreed that the first assignment of the leaschold interest in the land would be in the name of Charles Mwase owing to that the Claimant travelled frequently between this country and the United States of America. It was also agreed that the land would subsequently be assigned to him: a Paragraph 10 of the application supporting sworn statement stated that in 2019 the land got assigned to the Claimant under Deed Number 91944: 8 2.6 Zu 2.8 2.9 2-10 2.11 2.12 Paragraph 11 of the application supporting sworn statement stated that the land on which the Claimant carries on his business has no access road to these premises except through the land of the Defendant; Paragraph 12 of the application supporting sworn statement stated that clause 4 of the sale agreement the Claimant concluded with the Defendant allowed him to have an easement or access road through a passage that passes through the land of the Defendant. It was also allegedly agreed that a parking area would be constructed; Paragraph 13 of the application supporting sworn statement stated that based on clause 4 of the sale agreement the Claimant cleared the road which he used during the construction of the bar, café and restaurant. He used this road during the early days of the operation of his businesses; Paragraphs 14 and 15 of the application supporting sworn statement stated that the Claimant officially launched and started operating his business on 10" December, 2019. The Defendant allegedly began complaining that she sold the land cheaply. She allegedly wanted some extra payment for it after the business of the Claimant became operational; Paragraph 16 of the application supporting sworn statement stated that on 13" December, 2019 the Defendant breached clause 4 of the sale agreement she concluded with the Claimant. She allegedly blocked the entrance to the business premises of the Claimant with pine logs and planted some flowers along the road. These alleged acts on the part of the Defendant denied access to motorists who wanted to patronize the business premises of the Claimant; Paragraph 17 of the application supporting sworn statement stated that the Defendant allegedly also continued to harass the Claimant and his customers; Paragraph 18 of the application supporting sworn statement stated that on 28" February, 2020 the Claimant closed his business allegedly forced by the alleged acts of the Defendant; 213 2.14 AS 2.16 Paragraphs 19 and 20 of the application supporting sworn statement stated that on 4" April, 2020 the Defendant allegedly rented out the parking area that the Claimant constructed to a car wash and restaurant without his consent. This rental arrangement allegedly completely blocked the Claimants [...]; Paragraphs 22 and 23 of the application supporting sworn statement stated that on 17" September, 2020 the Defendant allegedly maliciously destroyed and dug out the landscape and ornamental flowers that the Claimant planted around the entrance fence wall. This matter was allegedly reported to the police at the highest possible level and the Ministry of Lands. They allegedly advised the Defendant not to interfere with the rights [unspecified] of the Claimant; and Paragraphs 24 and 25 of the application supporting sworn statement stated that the Claimant is ready and willing to resume his business operations but he cannot do so owing to the alleged conduct of the Defendant. He needs injunctive reliefs to restart the operation of his lawful businesses; The Claimant filed a further supplementary application supporting sworn statement dated 23" November, 2021 based on directions this court gave him through his Counsel so this court would have fully-paged certified copies of his passport and his Business Residence Permit. He swore this sworn statement. APPLICATION OPPOSING SWORN STATEMENT ALLEGATIONS aA The Defendant filed an undated opposing sworn statement to the application for an order of interlocutory injunction that the Claimant brought before this court. The Claimant orally objected to the admissibility of this sworn statement in these proceedings during the hearing of the application on the alleged ground that it was not sworn before a Commissioner for Oaths. It has scanned signatures of both its deponent and the Commissioner for Oaths. The deponent is allegedly based in Nkhata-Bay while the Commissioner for Oaths is based in Lilongwe. This sworn statement should also have complied with Order 18 of the 2017 Rules. The Defendant orally responded to this objection by stating that a defective sworn statement can still be used in court proceedings if the court permits its use. This 10 court can allegedly resort to Order 2 of the 2017 Rules to remedy this objected-to matter in the interests of justice. Alternatively, the Defendant sought to persuade this court to adjourn the hearing of the application to allow her to remedy this objected-to matter by filing an application with this court for an order to amend her defective sworn statement. This court undertook to resolve this intervening dispute in its determination of this application. 4, THE EVIDENCE 4.1 4.2 In his amended List of Documents dated 4‘" November, 2021 the Claimant listed an undated Offer of Lease for Angella K. Nyimba, an undated Lease Assignment for Charles Mwase, an undated Lease Assignment for himself, an undated Sale Agreement, an undated Business Residence Permit for himself, Record of Daily Sales for an unspecified business among his café, bar and restaurant businesses for December, 2019, undated photographs of his premises, undated photographs of the Defendant’s alleged interference, an undated letter from the Defendant to him, Biodata for his American passport dated 3" June, 2016, Business Residence Permit dated 3 June, 2016 and his Visa dated 12" June, 2017. In his application supporting sworn statement for the order of interlocutory injunction dated 30" June, 2021 the Claimant produced and exhibited certified copies of pictures of the café, bar and lodge that he operated marked WM-1, a sale agreement dated 12" September, 2016 marked WM-2, Deed Plan No. 812/2017 dated 29" April, 2018 marked WM-3 and pictures of the alleged blockage of the entrance to the business premises of the Claimant with pine logs marked WML-4. These markers were in the body of the supporting sworn statement only. They were not on these individual evidential documents and commissioned by a Commissioner for Oaths contrary to the established practice on this matter. In her List of Documents dated 4" January, 2021 the Defendant listed certified copies of a letter dated 1 January, 2020 which she addressed to the Claimant, an undated picture images of an unspecified place and an undated quotation for Princep Cycad. 1. = THE LAW 5.1 THE LAW ON THE GRANT OF ORDERS OF INTERLOCUTORY INJUNCTIONS 5.1.1 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. 5.1.2 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. 5.2 OTHER LAWS OF RELEVANCE TO THIS RULING Sal 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. Died THE LAND ACT [CAP. 57:01 OF THE LAWS OF MALAWI] The Land Act, [No. 16 of 2016], [Cap. 57:01 of the Laws of Malawi] which became operational law on 1* September, 2017 repealed the previous Land Act, No. 25 of 1965 as amended through the years since then. The Claimant transacted with the Defendant through their purported private land sale and purchase agreement dated 12" September, 2016. Section 24A (1) of the Land Act that was the law prior to 1° September, 2017 stated that any person who intended to offer for sale...transfer or assign any private land needed to give written notice to the Minister responsible for land matters of this intention not less than thirty days before they made such an offer or otherwise ...transferred or assigned the concerned private land. Section 24C(1)(a) of this same Land Act restricted 12 the sale of private land to persons who are not citizens of this country. It stated that without prejudice to section 24A or any other provision of the Act, no person could sell whether by private transaction or ...other means, any private land to a person who was not a citizen of this country unless the intention to sell the private land got published in a newspaper in daily circulation in this country not less than twenty-one days before the date of the sale, specifying its price, location, size, any developments on it and any other particulars that would suffice to identify it. The Land Act re-enacted these provisions in 2016 with modification through sections 36, 37 and 38. 5.2.3 THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS Article 14 of the African Charter on Human and Peoples’ Rights guarantees the right to property. The land in question must be acquired lawfully. The African Commission on Human and Peoples’ Rights confirmed in the case of The African Commission on Human and Peoples’ Rights v Republic of Kenya (Merits), ACtHPR, Application No. 006/2012 (2017) that this right can be limited by prescriptions of the law. 5.2.4 THE LAW ON VOID CONTRACTS 5.2.4.1 Goode assertively states that a void contract has no legal effect. It does not create a legal relationship between its intended parties. Neither party is entitled to whatever is received under such a contract. Goode, R., Commercial Law, London: Penguin Books, 1995, 2™ ed., p82. Goode also emphasizes that lack of capacity to enter into a contract is a ground on which a contract can be held to be unenforceable. 5.2.4.2 Goode stresses that there are two situations that the law must distinguish in all cases in which a contract is tainted by illegality. Illegality that is existent at a time that a contract is made is different from illegality which comes from a change in the law through a statute or a statutory instrument. Illegality that exists at a time that a contract is made makes such a contract unenforceable at law. 13 5.2.4.3 Contracts that are illegal as formed in the sense that entering into them or performing them involves an illegal act are unenforceable by either party to them. These kind of contracts must as a matter of law be differentiated from those in which for instance a party undertakes to do an act which will enable the contract to be lawfully performed. 5.2.4.4 There are also instances where a contract is lawful at the time of its making but is unlawful in its actual or intended performance. Neither party to this kind of contract is at liberty to enforce it if the unlawful manner of its performance is known to both parties. 6. DETERMINATION OF THE APPLICATION OF THE CLAIMANT 6.1 There are two issues that this court needs to determine in this application. These are whether the Claimant should be granted the order of interlocutory injunction which he sought with costs or his application should be dismissed with costs. The Claimant filed skeleton arguments which are undated. The Defendant filed skeleton arguments dated 22™ January, 2022. This court declines to grant the Claimant the order of interlocutory injunction he sought to restrain the Defendant from conducting herself in the manner she is alleged to have done on the ground that there is no serious question to be tried and it would be unjust to do so given the fact that the Claimant would not be entitled to any damages for the following reasons: 6.1.1 The private land sale and purchase agreement that the Claimant concluded with the Defendant was illegal and is therefore unenforceable by this court. This illegality comprised the following matters: (a) The Claimant admitted that he is an American national in paragraph 4 of his application supporting sworn statement. As such, the private land sale and purchase agreement that he purportedly concluded with the Defendant fell within the legal requirements of sections 24A (1) and 24C(1)(a) of the Land Act which was the applicable law to this transaction prior to the Land Act, 2016. This law obliged the Claimant and the Defendant to obtain ministerial consent to their transaction prior to the conclusion of their purported sale and purchase agreement 14 (b) for this private land. It also obliged them to publish the intention to sell this private land to each other in a newspaper in daily circulation in this country not less than twenty-one days before the date of the sale. The Claimant and the Defendant are agreed that this ministerial consent was never sought and granted. They are also agreed that there was no publication of the intended sale. The attempted publication of the private land sale and purchase transaction dated 10" March, 2017 which post-dated their agreement dated 12" September, 2016 was pointless and of no legal effect whatsoever on their illegal transaction. It is so ordered; and In her List of Documents dated 4" January, 2021 the Defendant listed a letter dated 1° January, 2020 which she addressed to the Claimant. She signed this letter in her alleged legal capacity of an executrix of the estate of R. V. Nyimba (allegedly deceased) for and on behalf of Wezi and Owami Nyimba. She did not bring before this court any evidence in the form of Probate that she obtained and got granted by this court to confirm the truth of this allegation. In the absence of this evidence it is clear to this court that the Defendant transacted with the Claimant in bad faith. It suited her to disclose this alleged legal capacity to the Claimant through her letter to him more than three years after she concluded the ill-fated agreement dated 12" September, 2016 with him and got the purchase price for the purported sale and purchase of the private land that led to this dispute in the sum of K2, 000, 000.00. The point in time at which she knew that she was allegedly the executrix of the estate of R. V. Nyimba (allegedly deceased) is not stated. However, a reading of her letter to the Claimant dated 1" January, 2020 suggests that the alleged administration of the estate of R. V. Nyimba (allegedly deceased) was allegedly finalized at least as at the date of this letter. Nowhere in all the documents that are before this court is the date or evidence of the alleged death of the alleged deceased R. V. Nyimba disclosed. Given these matters a question that arises and lingers is whether or not the Defendant knew that the piece of private land that she purported to sell the Claimant formed part of the estate of this alleged deceased person or only a portion of it did so on 12" Ls September, 2016 when she signed the illegal agreement she did with the Claimant in her personal capacity. The fact that when she signed this illegal agreement with the Claimant in her personal capacity she falsely indicated to him that the land had no encumbrances exacerbates her bad faith. There is no legal capacity known at law in which private land that is alleged to be or whose portion allegedly forms part of an estate of a deceased person can be sold by a person who is not the personal representative for the deceased person. Section 4 of the Deceased Estates (Wills, Inheritance and Protection) Act, [Cap. 10:02 of the Laws of Malawi] states that except as provided for in this Act, no person is entitled under customary law or under any other written law to take by inheritance any of the property to which a deceased person was entitled at the date of their death. Such a sale would be and is illegal. It is so ordered. 6.1.2 An important matter that arose in the specific context of this legal action relates to the evidence that the Claimant had in support of his allegations generally and how his legal practitioners brought it before this court. In his initial List of Documents dated 9"" December, 2020 attached to his summons dated 14 December, 2020 and statement of case dated 9"" December, 2020 the Claimant attached but he did not list an advertisement for the proposed purported sale of the disputed private land that appeared in The Daily Times dated March 10, 2017. This advertisement post-dated the private land sale and purchase agreement dated 12" September, 2016. There is no explanation on the file for the reasons for the omission of this document in the initial List of Documents dated 9" December, 2020. What is clear to this court however, is that the Claimant changed legal practitioners with effect from 22" March, 2021. His previous legal practitioners never listed the advertisement but an uncertified copy of it somehow found its way into the court file. This is also true of other key evidence that the previous legal practitioners for the Claimant had but which they did not also list for him in his initial List of Documents dated 9" December, 2020 but which also somehow found its way into the court file. This additional but omitted evidence included an uncertified copy of the certificate of registration for his business numbered 125797 dated gth April, 16 2010 which showed that the business the Claimant carried on as at this date was Kachere Café. This was long before he concluded the purported private land sale and purchase agreement dated 12'" September, 2016 with the Defendant. The legal capacity in which the Claimant pursued this present claim shows that he trades as Kachere Café Bar and Restaurant. There was therefore perhaps a change in the business name that the Claimant made after 2010. Whether or not this change in business name had a fraudulent motive is a question that this court has no answer for. Other unlisted but available uncertified copies of documents of evidence that the court file has include an offer of a lease of 3.75 hectares of customary land at Mungolozera Village, Traditional Authority Mkumbira in Nkhata-Bay District dated 25" February, 2016 from the Regional Commissioner for Lands (N) to the Defendant; NBS Bank Limited Deposit Slip dated 21% April, 2016 for the sum of K25, 460.00 for drawing fees, stamp duty, registration fee and rent the Defendant paid the Ministry of Lands, Surveys, Housing and Urban Planning; and a letter dated 8" September, 2016 that the Defendant wrote the Claimant. Through this letter she made him the offer to buy a plot at Chintheche Turn-Off in Mgolozera Village. She did so in her personal capacity; an agreement on transfer of title dated 23 September, 2016 signed among the Claimant, the Defendant and Charles Mwase; a letter dated 5" October, 2016 that the Defendant wrote the District Commissioner for Nkhata-Bay District through which she requested the subdivision of a plot for File No. NB/L/62/05; a lease dated 17" May, 2018 from the Minister of the Malawi Government responsible for Land Matters to Charles Mwase for 0.3820 of a hectare of leasehold land known as Plot Number 123 at Nkhata-Bay Boma in Nkhata-Bay District, Northern Malawi; and an undated licence and consent to an assignment by Charles Mwase to the Claimant from 2019 signed by a public officer on behalf of the Regional Commissioner for Lands (N). Whether the omissions to list this evidence were deliberate or accidental on the part of the initial legal practitioners for the Claimant is a matter that this court will never be able to find an answer to. They nevertheless speak to a suppression of material facts on the part of the Claimant. 17 6.1.3 One issue that exercised the mind of this court greatly related to the question whether or not there are remedial measures that this court has jurisdiction to impose on the Claimant in order to ensure that the private land that he acquired illegally from the Defendant does not remain in his possession and occupation. A look at the Land Act that was the law that governed land transactions in this country as at 12'" September, 2016 shows that there was no provision in it for such measures. This gap in the then applicable law ties the hands of this court. However, this court directs that the Defendant must conduct a search into the proprietorship particulars for this land that the Regional Commissioner for Lands (N) and the District Commissioner for Nkhata-Bay District have if any and ensure that the Claimant and Charles Mwase are removed from any land registers in which they are indicated to be the purported succeeding proprietors of the piece of private land that she unlawfully assisted the Claimant to possess and occupy. It is so ordered. The Defendant is directed to conduct this search and dependent on its outcome to commence the proceedings for the removal of the particulars of the Claimant and Charles Mwase before the Regional Commissioner for Lands (N) and the District Commissioner for Nkhata-Bay District within 30 days from the date of this ruling. It is so ordered. The Defendant is finally directed and ordered to share a certified copy of the search report that the Regional Commissioner for Lands (N) produces and gives her with the Claimant through his legal practitioners within 7 days from its date of collection from the Regional Commissioner for Lands (N) in the event that it shows that the removal from register proceedings are necessary. It is so ordered. The Defendant shall bear all the costs associated with the search into the proprietorship particulars of this private land in the land registers and the proceedings for the removal of the particulars of the Claimant and Charles Mwase if any are recorded in these registers. It is so ordered. 6.1.4 This court confirms that in arriving at this ruling it disregarded the incompletely and irregularly commissioned sworn statement that the Defendant filed and served on the Claimant in opposition to his application for an order of interlocutory 18 6.1.5 injunction. This court disregarded this sworn statement based on its interpretation and application of section 10 of the Oaths, Affirmations and Declarations Act, [Cap. 4:07 of the Laws of Malawi] which states that any Commissioner for Oaths before whom any oath...or sworn statement is made must state truly in the jurat or attestation the place and the date the oath...or sworn statement is made. This sworn statement was not dated. It did not state the place at which it was sworn. These defects are so fundamental that this court is compelled to declare that this sworn statement is ineffectual in compliance with Order 2 rule 3(c) of the 2017 Rules. It is so ordered. More so considering that the Defendant was legally represented in this legal action. Her legal practitioners should have made sure that this matter was competently and professionally handled by them on her behalf. It is so ordered. Given the matters highlighted in sub paragraphs 6.1.1(a) and (b) above this court dismisses the application for an order of interlocutory injunction that the Claimant brought. It is so ordered. Having determined that the transaction that the Claimant and the Defendant concluded was illegal for the reasons stated in sub paragraphs 6.1.1(a) and (b) above this court also dismisses the legal action that the Claimant commenced against the Defendant. It is so ordered. Kalaile, J as he then was persuasively held in the case of Mtemadenga Farm Limited y Agricultural Development and Marketing Corporation 1987-89 12 MLR 250 that there are some deserving cases such as this present one in which it is appropriate for a court to look at the evidence when deciding whether or not to grant an interlocutory injunction. Lord Diplock also observed as follows in the case of N. W. L. Ltd v Woods [1979] 1 WLR 1294 at 1306: “My Lords, when properly understood, there is in my view nothing in the decision of this House in American Cynamid Co. v. Ethicon Ltd [1975] A. C. 396 to suggest that in considering whether or not to grant an interlocutory injunction the Judge ought not to give full weight to all the practical realities of the situation to which the in junction will apply.” This court finds this observation persuasive. To the extent that they require disputing parties to disclose any and all documentary evidence that they 19 have for their respective cases at the time they commence or decide to defend a case the 2017 Rules also make the disposal of appropriately-deserving cases possible at their interlocutory stage. More so considering that Order 15 rule 1 of the 2017 Rules obliges parties to a legal action to disclose all their available documentary evidence regardless of whether it aids or it does not aid their respective cases. 6.1.6 This court has dismissed the application for an order of interlocutory injunction and the legal action that the Claimant commenced before it on the substantive ground of its finding that the Claimant and the Defendant concluded an illegal agreement. The reliefs that the Defendant sought against the Claimant through her counterclaim are also dismissed for the following reasons: (a) This court has no jurisdiction to grant the Defendant the relief of an award of the (b) sum of 15, 000 South African Rands being the alleged value of damaged rare cycads. It is so ordered. South African Rands are not the legal tender of this country. Section 16 of the Reserve Bank of Malawi Act, [Cap. 44:02 of the Laws of Malawi] is clear that Malawi Kwacha is the unit of currency of this country. It is the only legal tender. It is so ordered. The Claimant did also not seek the Malawi Kwacha equivalence of this alleged 15, 000 South African Rands in order to properly found the jurisdiction of this court over this claim. It is so ordered. Regulation 2(a) of the Exchange Control (Use of Foreign Currency in Local Transactions) Regulations contained in the Exchange Control Act, [Cap. 45:01 of the Laws of Malawi| prohibits the quotation of prices for payment in foreign currency. This claim is in the nature of special damages. The Defendant brought no evidence whatsoever to prove it. Nor did she bring any evidence of the alleged damage of the rare cycads. It is so ordered. Her claims for damages for destruction of landscape, lawn, flowers and plants to be assessed; damages for trespass to be assessed; damages for encroachment to be assessed; and loss of business to be assessed (quoted verbatim) are all equally dismissed. It is so ordered. Her claim for damages for destruction of landscape, lawn, flowers and plants to be assessed is a claim that the Defendant was at liberty 20 - (c) (d) (€) to pursue through criminal trespass charges laid against the Claimant at the time that he allegedly destroyed these. She did not do so then. It is so ordered. Her claim for damages for trespass is without merit. The Defendant permitted the Claimant to come onto the private land and allowed him to possess and occupy a portion of it. Given these facts it is doubtful that the Claimant would be guilty of civil trespass more so considering the Defendant’s own admission that there are alleged third party interests in this same private land. The boundaries of her own alleged land and that for these alleged third parties who are alleged to be the beneficiaries of the estate of R. V. Nyimba (allegedly deceased) are unknown. It is so ordered. The Defendant’s claim that the Claimant encroached her land is without merit in the face of the finding of this court that the legal capacity in which she transacted with the Claimant is not clear. The Defendant initially transacted with the Claimant in her personal capacity. She subsequently alleged that she is a personal representative for the alleged deceased estate of R. V. Nyimba (allegedly deceased) whose beneficiaries are also allegedly claiming part of the private land in dispute. The question whether or not the Claimant encroached into the land of the Defendant cannot be determined in the absence of credible evidence relating to boundaries between her alleged land and that of the alleged beneficiaries of the estate of R. V. Nyimba (allegedly deceased). It is so ordered. The Defendant’s claims for a declaration that the Claimant should stop claiming her land and for a declaration barring the Claimant from accessing her land in any way are also dismissed. It is not possible for the Defendant to assert her rights to these remedies without relying on the underlying illegal transaction she concluded with the Claimant. It is so ordered. The Defendant’s claim for an order of a permanent injunction barring the Claimant from trespassing on her land is dismissed. It is so ordered. This court already found that having allowed the Claimant to come onto the private land that led to this dispute it cannot lie in the mouth of the Defendant to allege civil trespass against him. It is so ordered, 21 (f) The Defendant's claim for loss of business [quoted verbatim] is dismissed. It is so ordered. This is a badly-drafted claim with respect to which the Defendant brought no evidence whatsoever to prove it before this court. She also did not plead any particulars of the exact nature of her alleged business and its alleged generated income in her counterclaim. It is so ordered. 6.1.7 Section 30 of the Courts Act [Cap. 3:02 of the Laws of Malawi] states that costs of court proceedings are in the discretion of a court. Order 31 rule 1(a) (b) and (c) of the 2017 Rules amplifies this issue. Each party shall bear its own costs of this application, the dismissed legal action and the dismissed counterclaim. It is so ordered. 7. THE RIGHT OF APPEAL OF THE PARTIES AGAINST THIS RULING This court confirms that the Claimant and the Defendant have a right to appeal against this ruling. They are therefore at liberty to appeal against this decision before the Supreme Court of Appeal in compliance with section 23 (1)(b) of the Supreme Court of Appeal Act, [Cap. 3:01 of the Laws of Malawi]. This court grants them leave to do so. It hn Delivered at Mzuzu this .... Dey ec day of MAY Leeeeeeees 2022 is so ordered. M. KONDOWE JUDGE 22