Malida v Kasim (Civil Cause 54 of 2018) [2018] MWHC 8 (28 February 2018)

Abdul Gaffar Ismail Malida v. Monsoor Rashid Kasim Kenyatta Nyirenda, J. JUDICIARY IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 54 OF 2018 BETWEEN ABDUL GAFFAR ISMAIL MALIDA CLAIMANT AND MONSOOR RASHID KASIM..................................................... DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA M r. Salimu, o f Counsel, fo r the Claimant Mrs. Jessie Chilimapunga, Court Clerk _____________________________ RULING______________________________ Kenyatta Nyirenda, J. On 19th February 2018, the Claimant issued a summons against the Defendant and the statement o f case reads as follow s: “ 1 The C laim ant is the registered p ro p rieto r, under the R egistered Land Act, o f Title num ber Lim be C entral - 134 as co-tenant with ou r A bd u l Rashid M ahom m ed Kassam in shares o f 4 4.4% and 5 5.5% respectively. The C laim ant pleads that in the year 2001 the defendant travelled to M a la w i fro m U nited K in gd om and as shall be dem onstrated at tria l frau d u len tly conveyed titles Lim be C en tra l - 94 and Lim be C en tra l - 134 to A bd u l Rashid Mahommed. The deeds f o r conveyance frau d u len tly p u rp o rte d that I (s ic ) signed w hile at tim e o f the said fra u d I (s ic) was in England. 3. The C laim ant pleads that in the year 2008 he a pplied to co u rt to have a reflection o f the land Register and shall be demonstrated at tria l the c o u rt reversed the defendant’s fra u d u len t conveyance. The C la im a n t’s applica tion was, inter alia, supported by Sw orn Statement o f M r. Khuze Kapeta, S C whom the defendant had duped into p re p a rin g the deeds o f conveyance in issue. Abdul Gaffar Ismail Malida v. Monsoor Rashid Kasim Kenyatta Nyirenda, J. 4. The C laim ant pleads that as things turned out the defendant was at it again in 2010 when he fraud ulently conveyed Title N um ber C en tra l — 94 and Lim be C en tra l - 134 into his name. The claim ant ove r and above ge ttin g the o rd er o f re ctifica tio n in 2008 had also the same year registered cautions in respect o f the titles fo rb id d in g any transactions vis-a vis the same year w ithout his knowledge. P a rticu la rs o f fra u d 4.1 The C laim ant repeats the 4lh paragraph h e re o f and pleads that he was never n otified o f the d islod ging o f the said cautions n o r was he served with any cou rt process appealing against the substantive o rd er o f re ctifica tio n granted to him in 2008. 4.2 The defendant p u rp orted ly sold Title Lim be C en tra l - 94 to one A bdul M a jid Sattar f o r a measly M K 1 5,000,000 in the y ea r 2016 while the p lo t had an estimated market value o f in excess o f M K 1 00,000,000. 4.3 As shall be demonstrated at tria l the deed o f conveyance f r o m M o n s o o r to seller is replete with other p oin ters to fra u d u len t transactions: 4.3.1 I t was p re p a re d by a fir m not licen ced by the M a la w i Law Society 4.3.2 Sattar signed the deed before a lawyer who was, that year (2016), not licenced. 4.3.3 M o n so o r did not execute the deed o f conveyance it as p e r section 104 and 105 o f the Registered L a n d A c t in respect o f authentication o f documents signed outside M alaw i. 5. I N T H E P R E M I S E S the Claim ant claim s fr o m defendants: 5.1 damages on the fo o tin g o f aggravated damages f o r fra u d u len t conversion. 5.2 gen era l damages f o r frau d u len t conversion. 5.3 costs o f these proceedings. ” The action herein comes in the heels o f the determination o f the case o f Abdul Gaffar Ismail Malida v. Monsoor Rashid Kasim, HC/PR Civil Cause No 333 of 2017 [hereinafter referred to as the “ earlier case” ]. The earlier case was also commenced by w ay o f summons and the relevant part o f the summons was couched in the fo llo w in g terms: R E L I E F 1. The C laim ant claim s against the defendant damages on the f o o tin g o f aggravated damages f o r frau d u len t conversion. 2. The C laim ant claim s fr o m the C ou rt an ord er re ctify in g the Land R egistra r so that Title N um ber Lim be C entral - 134 reverts back to its true owners, namely the Abdul Gaffar Ismail Malida v. Monsoor Rashid Kasim Kenyatta Nyirenda, J. p la in tiff and M r. M ahom m ed Kassam o r the person al representatives o f his deceased estate. 3. The p la in tiff claim s f o r a perm anent injunction restra in in g the defendant fro m ever conveying Title N um ber Lim be C entral - 134 to any third pa rty o r at all. 4. The p la in tiff claim s costs o f these proceedings. ” N o response/defence having been filed by the Defendant to the earlier case, the Claimant on 8 February 2018 entered a default judgem ent w hich is w orded as follow s: “I T I S T H I S D A Y A D J U D G E D that the Land Register be re ctifie d so that Title number Lim be C en tra l — 134 reverts to its true owners: the p la in tiff and M r. M oham m ed Kassam o r the p erson a l representative o f his deceased estate; damages are awarded to the C laim ant on the fo o tin g o f aggravated damages f o r fra u d u len t conversion. ” On the same day, that is, 8 February 2018, the Claimant proceeded to obtain an Order o f R ectification o f the Land Register form al judgem ent w hose contents have to be quoted in full: “ U P O N the C laim ant herein making an express claim in his summons f o r the r e lie f o f reflection o f the La n d Register that in respect o f Title num ber Lim be C en tra l - 134 it should revert back to the status quo introduced by the o rd e r o f re ctifica tio n o f 5th Decem ber. 2008. A N D this co u rt having granted the claim ant a default ju d gm en t effectively gra n ted the reliefs sought by the claim ant in his summons. I T I S H E R E B Y O rd ered that ownership o f Title N um ber Lim be C en tra l - 134 should revert back to the claim ant and his jo in t owner as p e r the ord er o f rectifica tion o f 5th December, 2008 I T I S F U R T H E R ord ered that: i) The claim ant is awarded damages on the fo o tin g o f aggravated damages f o r fra u d u len t conversion to be assessed. ii) The claim ant is granted a perm anent injunction against the defendant restra in in g the defendant by h im s elf his servants o r agents fr o m ever conveying Title N um ber Lim be C entral - 1 3 4 h im s elf o r to any third parties. iii) The claim ant is awarded costs o f these proceedings. ” It might also not be out o f order to mention that in the earlier case the Claimant obtained an Order o f Freezing Injunction whose last paragraph is w orded as follow s: Abdul Gaffar Ismail Malida v. Monsoor Rashid Kasim Kenyatta Nyirenda, J. “I T I S H E R E B Y O rd ered that the defendant be restrained fr o m in any way dealing with Title number Lim be Central, beins v lo t number L C 94S p ending the determ ination o f the substantive a ction herein o r until a fu rth e r O rd er o f the Court. ” — Emphasis by underlining supplied I have thoroughly examined the tw o cases and I have great difficulties in h ow they can be distinguished. Th e law is clear that a matter that has been adjudicated in a prior action cannot be litigated a second time. The fo llo w in g dicta in the case o f Barrow v. Bankside Agency Ltd (1996)1 WLR 257 at 260 is apposite: “ The rule in H enderson v. Henderson (1843) 3 H are 100 is very w ell known. It requires the parties, when a m atter becomes the subject o f litiga tion between them in a c o u rt o f com petent ju ris d ictio n , to b rin g their whole case before the co u rt so that a ll aspects o f it may be fin a lly decided (subject, o f course, to any appeal) once and f o r all. In the absence o f special circumstances, the parties cannot return to the co u rt to advance arguments, claim s o r defences w hich they co u ld have p u t fo rw a rd f o r decision on the fir s t occasion but fa ile d to raise. The rule is not based on the d octrine o f res ju d ica ta in a narrow sense, n or even on any s trict doctrine o f issue o r cause o f a ction estoppel. It is a ru le o fp u b lic p o lic y based on the desirability, in the gen era l interest as w ell as that o f the parties themselves, that litig a tio n should not d ra g on fo re v e r and that a defendant should not be oppressed by successive suits when one w ould do. That is the abuse at w hich the ru le is d irected ." T o m y mind, the tw o cases are both based on the same facts and on the same cause o f action, to wit, that the Defendant fraudulently conveyed titles Lim b e Central 134, also known as plot number L C 94S, to Abdul Rashid M ahom m ed. The Claimant cannot be allow ed to keep com ing to court to advance claims or arguments which he could very w ell have put forward fo r determination in one cause o f action. In light o f the foregoin g, the present action is an abuse o f court process. It w ill, accordingly, not be entertained. In this regard, the attention o f the Registrar is drawn to Order 5, rule 13, o f the Courts (H ig h Court) ((C iv il Procedure) Rules. Pronounced in Chambers this 28th day o f February 2018 at Blantyre in the Republic o f M alaw i. ____ ____ Kenyatta Nyirenda JUDGE 4