Mhango v Chavula (Land Cause 18 of 2022) [2023] MWHCCiv 31 (4 May 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION LAND CAUSE NUMBER 18 OF 2022 BEFORE HONOURABLE JUSTICE KONDOWE BETWEEN CORAM: HONOURABLE JUSTICE MAUREEN KONDOWE Mandala, Counsel for the Claimant Defendant, absent. Application is for a without-notice order of default judgment Miss I. Mabaso, Senior Court Clerk JUDGMENT 1. BACKGROUND TO THIS JUDGMENT 1.1 By a specially-endorsed summons dated 4" March, 2022 the Claimant commenced this legal action against the Defendant. The Claimant is legally represented. The Claimant did not indicate the authority of law on the basis of which she filed this summons before this court and subsequently served it on the Defendant as she alleged. Attached to this summons were a statement of case dated 24" February, 2022 and a list of documents also dated 24" February, 2022. The Claimant also filed and served sworn statements also dated 24" February, 2022 which verified both the statement of case and the list of documents. 1.2 By an ex parte application for a default judgment dated 19" December, 2022 the Claimant sought an order of default judgment against the Defendant. The Claimant stated that the grounds of her application were allegedly that there was no notice of intention to defend this claim and the Defendant did not file any defence within the time prescribed by allegedly Order 12 rule 6 of the Courts (High Court) (Civil Procedure) Rules, 2017 (“the 2017 Rules”). The application was brought before this court pursuant to Order 12 rules 7 and 12 of the 2017 Rules. It was supported by a sworn statement dated 27" May, 2022 which Joshua Botha an alleged Process Server from Chram Associates the legal firm whose legal practitioners legally represent the Claimant swore. APPLICATION SUPPORTING SWORN STATEMENT ALLEGATIONS 2.1 Paragraph 3 of the Application Supporting Sworn Statement alleged that the Claimant instituted these proceedings against the Defendant on 4"" March, 2022. 2.2. Paragraph 4 of the Application Supporting Sworn Statement alleged that the summons was allegedly personally served on the Defendant on 9 March, 2022. 2.3 Paragraph 5 of the Application Supporting Sworn Statement alleged that the Claimant sought the following reliefs against the Defendant: (a) a declaration that the land belongs to the Claimant (quoted verbatim); (b) an order that the Defendant do vacate the land (also quoted verbatim); (c) a permanent injunction restraining the Defendant, his servants, his agents or whomsoever from farming or doing anything whatsoever as a bona fide owner of the land; (d) damages for waste caused on the land; and (e) costs of the action. 2.4 Paragraph 6 of the Application Supporting Sworn Statement alleged that this proceeding has allegedly not been settled with the Defendant. 2.5 Paragraph 7 of the Application Supporting Sworn Statement alleged that the Defendant did not file any notice of intention to defend this matter. He also allegedly did not file a defence on the Claimant within the period that the 2017 Rules prescribe. 3. THE EVIDENCE 3.1 The Claimant produced and exhibited a certified but unmarked copy of the first page only of the initial directions contrary to the allegation that paragraph 4 of the Application Supporting Sworn Statement made to the effect that a copy of the summons that was allegedly personally served on the Defendant on 9 March, 2022 marked ‘JB1’ was produced and exhibited. 3.2 The Claimant also produced and exhibited in her list of documents dated 24" February, 2022 an uncertified and unmarked Commitment dated 24" January, 2022 that the Defendant allegedly gave him allegedly before Senior Chief 1 Themba Mwankhunikira and a letter dated 14 February, 2022 that Senior Chief 1 Themba Mwankhunikira wrote allegedly addressed to the Officer in Charge for Chinyolo Police Unit, the District Commissioner for Rumphi District Council, GVH (quoted verbatim) Mbiwi and the Defendant. THE LAW ON DEFAULT JUDGMENTS 4.1 UNDER THE 2017 RULES 4.1.1 Order 12 rule 6(a)(i) of the 2017 Rules states that where a defendant does not file and serve a response or a defence within 14 days after service of the summons...the claimant may file a sworn statement as a ‘proof of service’ that the summons and response in Form 2 were served on the defendant as required by Order 5 rule 7, and he may apply for a judgment in default to be entered under this Order against the defendant. 4.1.2 Order 12 rule 7(1) of the 2017 Rules states that an application for a judgment in default for ... claims for recovery or delivery of possession of land in an application for possession of land may be made by filing a draft of the judgment together with a sworn statement in support of the application. 4.1.3 Order 12 rule 8(1) of the 2017 Rules states that this court may enter a judgment in default for the claimant under rule 7 without a hearing for ... claims for recovery or delivery of possession of land in an application for possession of land... 4.1.4 Order 12 rule 14(1) of the 2017 Rules states that where an application is for the recovery of possession of land this court may enter a judgment for the Claimant under rule 7(1) for the recovery of the possession of the land against a defendant with costs. 4.1.5 Order 12 rule 14(2) of the 2017 Rules states that an application for an order of recovery of possession of land must be supported by a sworn statement. 3 4.1.6 Order 12 rule 14(3) of the 2017 Rules states that a sworn statement in support of an application made under sub rule (1) must (a)(i) identify the person who is in actual possession of the land or any part of it at the time the application is made; and ... (c) state the costs claimed. 4.1.7 Order 12 rule 14(4) of the 2017 Rules states that this court can award costs for issuing an application for an order of recovery of possession of land, obtaining judgment and any other fees and payments to the extent they have reasonably been incurred and paid. 4.1.8 Order 25 of the 2017 Rules provides for the powers and functions of Registrars. Section 2 of the Courts Act defines ‘Registrar’ as the Registrar of the High Court and includes an Assistant Registrar. 4.1.9 Order 25 rule 1(h) of the 2017 Rules states that subject to the direction of a Judge the Registrar may exercise the jurisdiction, powers and functions of the court to make, or refuse to make, an order on entering of a judgment in default. OTHER LAWS OF RELEVANCE TO THIS APPLICATION 5.1 UNDER THE CUSTOMARY LAND ACT, 2016 5.1.1 The Customary Land Act, 2016 became effective law on 1% March, 2018. Section 5(1) of the Customary Land Act, 2016 established Customary Land Committees at Group Village Headman level in Traditional Land Management Areas. Section 2 of the Land Act [Cap. 57:01 of the Laws of Malawi] defines a Traditional Land Management Area as an area demarcated and registered as falling within the jurisdiction of a Traditional Authority. Section 2 of the Land (Amendment) Act, 2022 [No. 5 of 2022] (“the Land (Amendment) Act, 2022”) has redefined a Traditional Land Management Area as customary land demarcated and held by Traditional Authorities on trust for the residents under their jurisdiction. In terms of section 5(2)(a) of the Customary Land Act, 2016 a Group Village Headman is the Chairperson of a Customary Land Committee. Section 2 of the Land Act defines customary land as land that is used for the benefit of a community as a whole and includes an unallocated customary land within the boundaries of a Traditional Land Management Area. Section 2 of the Land (Amendment) Act, 2022 has redefined customary land as land that is held, occupied and used in accordance with customary law. 5.1.2 Under section 6(1) of the Customary Land Act, 2016 a Customary Land Committee has management rights over customary land that is within its area of jurisdiction on trust as if the committee were a trustee of and the residents in the area were beneficiaries under a trust of the customary land. Section 5(a) of the Customary Land (Amendment) Act, 2022 has maintained this position of the law and extended it by requiring Land Committees and Traditional Authorities to manage customary land which they have jurisdiction over in line with prevailing customary laws. 5.1.3 Section 44(1) of the Customary Land Act, 2016 established Customary Land Tribunals in every Traditional Land Management Area whose mandate is to adjudicate on disputes which concern customary land in an area. 5.1.4 Section 44(2) of the Customary Land Act, 2016 states that a Customary Land Tribunal comprises: (a) A Traditional Authority for the area who is its Chairperson; and (b) Six communal members whom the Traditional Authority nominates and are approved by the Commissioner for Lands. Equal representation by gender in such a tribunal is ideal but at the minimum three women must be members. Section 20 of the Customary Land (Amendment) Act, 2022 has changed this position of the law by substituting the Commissioner for Lands with a District Commissioner. 5.1.5 Section 45 of the Customary Land Act, 2016 allows any person who is aggrieved by any decision of a Customary Land Tribunal to appeal to a District Land Tribunal established under section 46(1) of this Act. District Land Tribunals comprise the following members: (a) A District Commissioner who is its chairperson. Section 21 of the Customary Land (Amendment) Act, 2022 has substituted District Commissioner in this provision with a presiding Chairperson who must be the most senior Traditional Authority of a District; (b) Up to three Traditional Authorities; (c) Three persons of good reputation who come from and reside in the area, two of whom must be women. Section 21 of the Customary Land (Amendment) Act, 2022 has also amended this provision by deleting it so these persons are substituted by a Resident Magistrate; and (d) A District Land Registrar who acts as the Secretary for the tribunal. 5.1.6 Section 46(2) of the Customary Land Act, 2016 states that members of a District Land Tribunal are approved by a Local Government Authority which is responsible for the district. 5.1.7 Section 47 of the Customary Land Act, 2016 states that an appeal from a District Land Tribunal lies to the Central Land Board. Section 48(1) of this Act states that this Board comprises the following: (a) A Resident Magistrate who presides over its proceedings. Section 22 of the Customary Land (Amendment) Act, 2022 has substituted a Resident Magistrate with a presiding Chairperson who must be a Paramount Chief; (b) Three Traditional Authorities, one each from a region of Malawi, one of whom must be a woman; (c) Two other members of good standing in society one of whom must be a woman. Section 22 of the Customary Land (Amendment) Act, 2022 has substituted these persons with a Chief Resident Magistrate. 5.1.8 Section 49(5) of the Customary Land Act, 2016 states that a land tribunal can decide a customary land dispute in cases in which the parties to it fail to agree on how best to resolve their dispute with its advice to any aggrieved party of their right to appeal to a higher dispute settlement tribunal within the context of the Customary Land Act, 2016 and now in addition to this Act the Customary Land (Amendment) Act, 2022 or to this court as the case may be. 5.2 UNDER THE LAND ACT [CAP. 57:01 OF THE LAWS OF MALAWI] 5.2.1 Section 7(1) of the Land Act categorizes land into public and private categories. 5.2.2 Section 7(2) of the Land Act classifies public land into Government land or unallocated customary land. 5.2.3 Section 7(3) of the Land Act classifies private land as freehold, leasehold or customary estate. Section 4 of the Land (Amendment) Act, 2022 has deleted these provisions and replaced them with a new section 7 which categorizes land as public, customary and private. 5.2.4 Section 9 of the Land Act prohibits the allocation or grant of freehold land to any person. 5.2.5 Section 21(1) of the Land Act allows the Minister responsible for land to grant or allocate a leasehold or customary estate to any person who applies for the grant or allocation in the prescribed manner on such terms and conditions as the Minister considers appropriate. 5.2.6 Section 49 of the Land Act states that where in relation to any land transaction a person who is party to such a transaction is required whether as a matter of law, procedure or practice to disclose their citizenship to the Minister responsible for land and claims to be a citizen of Malawi they must furnish to the Minister evidence of proof of their Malawi citizenship in accordance with the Malawi Citizenship Act [Cap. 15:01 of the Laws of Malawi] or other applicable law of this country. 5.3 UNDER THE NATIONAL REGISTRATION ACT [CAP. 24:01 OF THE LAWS OF MALAWI] 5.3.1 The National Registration Act [Cap. 24:01 of the Laws of Malawi] became operational on I* August, 2015. Section 3 of this Act established a National Registration System. It states that the National Registration System consists of a Population Register. 5.3.2 Section 4 of this Act provides for the appointment of a Director and Deputy Director for National Registration by the responsible Minister. 5.3.3 Section 7(1)(a) of this Act mandates the Director for National Registration to keep or cause to be kept and maintained a national register of all persons who are citizens of this country above the age of 16 years. Section 7(1)(b) of this Act allows the Director for National Registration to include in the national register that he keeps and maintains or causes to be kept and maintained all persons who are of or above the age of 16 years who while they are not citizens of this country have been granted permanent residence, temporary employment or business permits to reside here under the Immigration Act [Cap. 15:03 of the Laws of Malawi]. 5.3.4 Section 8 of the National Registration Act spells out the particulars of registration that the Director for National Registration records in the national register dependent on whether they are for a Malawian or a non-Malawian citizen. 5.3.5 Section 13(1) of this Act allows the Director for National Registration to issue an identity card to every person registered under this Act. An identity card issued under this Act is prima facie proof of the particulars of an individual that the national register contains under section 17 of this Act. Regulation 12 of the National Registration Regulations allows the Director for National Registration to issue an identity card after receipt of an application for registration in the national register in the prescribed form and manner. Form NR4 contained in the Schedule to the Act is a depiction of the national identity card for Malawian citizens while Form NRS5 contained in the same Schedule is the depiction of an identity card for non-Malawian citizens. In terms of Regulation 19 of the National Registration Regulations Form NR7 is a depiction of the national register that the Director for National Registration keeps and maintains or causes to be kept and maintained. 5.3.6 Regulations 51(1)(a) through (kK), 52(1)(a) through (p), 53(a) through (b), 54(1)(a) through (0)()(Gi) and 54(2) of this Act elaborately outline the respective functions of the Director for National Registration, District Registrars or authorized persons, Traditional Authorities, Village Headmen and Group Village Headmen and again Group Village Headmen. 5.3.7 All citizens of Malawi were required pursuant to Regulation 59(1) of the National Registration Regulations to comply with the requirements for registration in the national register within 3 years of these Regulations coming into force. 5.4 UNDER THE DECEASED ESTATES (WILLS, INHERITANCE AND PROTECTION) ACT [CAP. 10:02 OF THE LAWS OF MALAWI] 5.4.1 Section 4 of the Deceased Estates (Wills, Inheritance and Protection) Act [Cap. 10:02 of the Laws of Malawi] (“DEWIPA”) states that except as provided for in this Act, no person is entitled under any other written law or under customary law to take by inheritance any of the property to which a deceased person was entitled at the date of their death. 5.4.2 A personal representative of a deceased person has the legal capacity to deal with the estate of a deceased person. Section 3 of DEWIPA states that a personal representative includes an administrator/administratrix and an executor/executrix. 5.4.3 Under Section 20(1) of DEWIPA the High Court has the respective jurisdiction over all probate matters and the administration of estates of deceased persons. It has power to grant probates of valid wills and letters of administration where a deceased person died without leaving a valid will. 5.4.4 Section 20(3) of DEWIPA grants Resident or First Grade Magistrates jurisdiction to grant probates of valid wills or letters of administration over intestate property of a deceased person where the estate is small. Section 3(1) of DEWIPA is clear that a small estate is one whose value does not exceed K1, 000, 000.00. The value of the property comprised in a small estate must be K1, 000, 000.00 without any deductions for debts being made. 5.4.5 Section 33(1) of DEWIPA states that probate is only granted to an executor/executrix that a will appoints. 5.4.6 Section 43(1) of DEWIPA states that where a deceased person dies intestate, letters of administration for their estate may be granted to any person, who, under section 17 of this Act, would be entitled to the whole or part of the estate of the deceased. 5.4.7 Section 50 of DEWIPA states that subject to all limitations and exceptions in them, letters of administration entitle the administrator/administratrix to all rights that belonged to the deceased person as if they had been granted at the moment of their death. 5.4.8 Section 50(2)(a) of DEWIPA further states that probate and letters of administration have effect over all the inheritable property of a deceased person throughout this country and are conclusive against all persons holding any inheritable property of a deceased person. 6. DETERMINATION OF THE APPLICATION OF THE CLAIMANT 6.1 Through her ex parte application for an order of default judgment the Claimant sought this order against the Defendant. This application called upon this court to decide whether or not this order of default judgment should be granted against the Defendant. The Claimant did not file any skeleton arguments. 6.2 This court declines to grant the Claimant the order of default judgment she sought against the Defendant for the following reasons: 6.2.1 The Claimant alleged in paragraph 3 of her statement of case dated 24" February, 2022 that her alleged deceased husband was allegedly given the disputed piece of customary land by unnamed traditional leaders in Group Village Headman Mbiwi [...] in Traditional Authority Mwankhunikira in Rumphi District allegedly in 1993. Paragraph 4 of her statement of case dated 24"" February, 2022 further alleged that the Claimant and her alleged family with her alleged unnamed deceased husband worked on this land until 2004 prior to the alleged death of the alleged husband. This court finds on the basis of these allegations alone that the Claimant brought these proceedings before this Division of the High Court wrongly. Her alleged claims against the Defendant are fit and proper for resolution before a Family and Probate Division which would deal with the alleged matters that allegedly arise in this dispute as regards the alleged nature of the alleged inheritable property that comprises the alleged deceased estate of the alleged unnamed deceased husband of the Claimant. It is so ordered. This is also the Division of this court that would determine whether or not the Claimant is the rightful person to apply for and be granted letters of administration to administer the alleged estate of her alleged unnamed deceased husband and subsequently commence a legal action for the alleged recovery and possession of the piece of customary land that the Defendant is allegedly encroaching. It is so found and ordered. Order 8 rule 25 of the 2017 Rules is clear that where an estate of a deceased person is an alleged party to court proceedings all documents must be served on the personal representative for the estate or other fit and proper person acting on its behalf. It is also so found. 6.2.2 This court noted that the Claimant did not produce and exhibit a certified copy of her national identity card dependent on whether she is a Malawian or a non- Malawian citizen that the Director for National Registration issued her with pursuant to section 13(1) of the National Registration Act read together with Regulation 12 of the National Registration Regulations. Customary land is held by Malawian citizens. Non-Malawian citizens can hold private land provided that they comply with the legal requirements that the Citizenship Act, the Immigration Act, the Land Act, the 10 Registered Land Act [Cap. 58:01 of the Laws of Malawi] as amended from time to time and the investment policies of the Malawi Government that the Malawi Investment and Trade Centre (MITC) administers through the Malawi Trade and Investment Centre Limited. This court cannot exercise its jurisdiction to grant the Claimant who is and remains an unidentified natural person before this court the reliefs of (a) a declaration that the land belongs to her; (b) an order that the Defendant do vacate the land; (c) a permanent injunction restraining the Defendant, his servants, his agents or whomsoever from farming or doing anything whatsoever as a bona fide owner of the land; (d) damages for waste caused on the land; and (e) costs of the action that she sought from this court on the further grounds that follow. It is so ordered. The ex parte application for an order of default judgment through which this court was asked to grant the Claimant these alleged reliefs is totally silent on the provisions of law that Order 12 rule 8(1) read together with rules 14(1), 14(2) and 14(3) of this same Order contain. These are the provisions of this Order that specifically cater for applications for alleged orders for the alleged recovery and possession of land whether the applications are made in the context of a default judgment or not. It is so ordered. 6.3 This court has declined to grant the Claimant the order of default judgment that she sought against the Defendant for the reasons stated in this judgment. This court therefore dismisses the application that the Claimant made for this order. It is so ordered. 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. Order 31 rule 3(1)(a) of the 2017 Rules states that this court has discretion as regards whether or not costs must be paid by one party to another. Order 31 rule 3(1)(b) of the 2017 Rules states that this court has discretion to decide the amount of any payable costs. Order 31 rule 3(1)(c) of the 2017 Rules states that this court has discretion to decide when costs must be paid. Order 31 rule 3(2) of the 2017 Rules states that where this court decides that costs must be paid, an unsuccessful party is ordered to pay the costs of a successful party. This court exercises its discretion on costs to make no order for costs. It is so ordered. 11 7. THE RIGHT OF THE CLAIMANT TO APPEAL AGAINST THIS JUDGMENT 7.1 The Claimant has a right to appeal against this judgment pursuant to section 21 of the Supreme Court of Appeal Act [Cap. 3:01 of the Laws of Malawi]. This provision states that an appeal lies to the Supreme Court of Appeal from any judgment of the High Court or Judge in any civil cause or matter. This court confirms that the Claimant is at liberty to appeal against this judgment before a full Bench of the Supreme Court of Appeal in compliance with section 23(1)(b) of this Act. It is so ordered. Section 23(1)(b) of the Supreme Court of Appeal Act states that any person who desires to appeal from this court to this higher Court must in such manner as is prescribed by the rules of court give notice to the Registrar of the High Court of the intention to appeal within 6 weeks of the delivery of the judgment that is to be appealed against. This court grants the Claimant leave to appeal against this judgment to the Supreme Court of Appeal. It is so ordered. Delivered at Mzuzu this ........ Ad Mh resoranc day of.......... M ty biG AR 2023 Peon M. KONDOWE JUDGE 12