Mkandawire v Matete (Civil Cause 136 of 2017) [2023] MWHCCiv 30 (14 July 2023)

IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NUMBER 136 OF 2017 BETWEEN: EDSON JOB KALIBWE MKANDA WIRE ..........00c:ceceeeeeeeeeeeceeeeeseeene estes CLAIMANT -AND- BME MATTE, ccncme cncernnmar cunne IESG JORG GRRL RRPRURE HEREC e nen acres 1ST DEFENDANT WHORES FOAIONIGA, cenccneswnrnnwsncnmunananeacnmnnn uaixshiiD RSG Mana SARTRE EOE 2NP DEFENDANT THE ATTORNEY GENERAL vrnctcacisesnmenceneunrrttiieirhitine wae HAIRS 3D DEFENDANT CORAM: Honourable Justice T. R Ligowe C. Ghambi, Counsel for the Claimant Counsel for the Respondents, Absent F. Mwakhwawa Luwe, Court Clerk R. Luhanga, Court Reporter JUDGMENT 1. The Claimant commenced this action by originating summons in July 2017 before the Courts (High Court) (Civil Procedure) Rules 2017 came into place, seeking, (a) a declaration that the parcel of land being Plot No. P17 next to the Bee Hive Schools in the City of Mzuzu belongs to him; (b) a declaration that the defendants are trespassers and encroachers on the said parcel of land; (c) a declaration that the Defendants have violated his right to quiet and peaceable enjoyment of his property on the said land.; (d) an order that the Defendants pay damages for trespass. (e) an order that the Defendants compensate him for the violation of his rights to property as well as the inconvenience caused. (f) An order of permanent injunction restraining the Defendants from dealing in any manner with the parcel of land on plot number P17 situated near Bee Hive Schools in the City of Mzuzu; and (g) an order that the Defendants pay costs of the action. 2. In the affidavit in support of the originating summons the Claimant states that he was initially allocated plot number KHE 235 at Katoto by the Commissioner for Lands (North) and exhibits an offer of lease for the said piece of land dated 10" March 2009 plus receipts of fees and duties he was supposed to pay for the plot. I notice that among other things, this offer was on condition that the development on the plot be completed by 31 January 2011. He further states that this offer was withdrawn by the Commissioner for Lands (North) and replaced with plot number P17. He also exhibits a letter to that effect dated 26" June 2014. The letter states that “fdjue to circumstances beyond our control, plot number P17 has been identified as replacement plot for you.” So, the plot number KHE 235 was withdrawn from the claimant due to circumstances beyond the control of the Regional Commissioner for Lands (North). The Claimant further avers in the affidavit that the Town and Country Planning Committee for Mzuzu granted him a development permission for the land on 28" July 2016 and that he was allowed to use the same plans he meant to use on plot number KHE 235. He does not exhibit the letter from the Town and Country Planning Committee granting him the permission, but the plans he meant to use on plot number KHE 235. I am aware that under S, 41 (1) of the Town and Country Planning Act, a development permission lapses and ceases to have effect if the development to which it relates has not been commenced within two years of the date it was granted. In this case the Claimant further states that he mobilized bricks and quarry stones and exhibits pictures of the same on site and that when he went to the site of plot number P17 in May 2017, he found the Defendants had started building a fence around it. He exhibits pictures of the developing fence. He states that as a result, he cannot continue building. He argues that the conduct of the Defendants in starting to construct on his land is provocative and amounts to trespass to land which has led to his bricks and quarry stones to waste off. So, he prays for the reliefs outlined above. The 1% defendant filed and served a sworn statement in response and in opposition to the originating summons in June 2018. She states that she and the 2"! Defendant started building the fence on plot number P17 because it had been allocated to them by the Commissioner for Lands (North) and they found no bricks or quarry stones as claimed by the Claimant. She therefore contends that they have not trespassed into plot number P17 because they were given express consent to enter it and develop it by the Commissioner for Lands. If there has been inconvenience caused on the Claimant, the same is due to the office of the Commissioner for Lands and not her or the 2"¢ Defendant. The Attorney General filed a defence on 5" October 2018. In the main, the defence is that the Claimant had been allocated another land in place of plot number P17. . Under Order 28 of the Rules of the Supreme Court, the rules of procedure in the High Court in this Country before the Courts (High Court) (Civil Procedure) Rules 2017, after acknowledging service of the originating summons and affidavit in support, the Defendant had 28 days within which to file and serve his own affidavit evidence in opposition to the originating summons. The Courts (High Court) (Civil Procedure) Rules 2017 came into force on 3"? October 2017. Order 35 thereof are transitional provisions. Rule 3 (1) to (4) are pertinent as to how the Defendants responded to the originating summons. I reproduce here below. 3-(1) Where a step in compliance with the practice and procedure under section 29 of the Act (the “existing procedure rules”) has been taken in an existing proceeding, before the commencement date, in particular one that uses Forms or other documentation required by the existing procedure rules, the procedure shall proceed in the manner specified under the existing procedure rules. (2) Any step which a party is required to take in response to something done by another party in accordance with the existing procedure rules shall be in accordance with those Rules. (3) A party who is served with a mode of commencement under the existing procedure rules on or after the commencement date shall respond in accordance with those Rules and the instructions on any forms received with the mode of commencement. (4) Where a proceeding has been begun by a mode of commencement under the existing procedure rules, whether served before or after the commencement date, filing and service of the statements of case, previously known as “pleadings”, shall be done according to those Rules. 7. This means the Attorney General needed to have responded to the originating summons by an affidavit just like the 1° and 2"! Defendants did and not a statement of defence. Now, an affidavit is written evidence attested by a commissioner for oaths. A statement of defence is not attested. Order 2, rule 3 of the Courts (High Court) (Civil Procedure) Rules 2017 allows the court among other things, to declare an irregular document or step taken by a party in a case to be ineffectual or effectual. Because of the difference in nature between a defence and an affidavit, | declare the Attorney General’s defence ineffectual. A defence is a pleading that needs to be substantiated by evidence at trial. It cannot be used at the hearing of an began by originating summons. At such a hearing the court uses affidavits which are in themselves sworn statements of evidence. I will therefore proceed with the judgment as if the Attorney General had not responded to the originating summons. 8. This matter was heard on 5th November 2019 in the absence of the Defendants after the Claimant showed proof that he had dully served the notice of hearing on them and yet they had not sent any communication to court as to the reason for their absence. 9, In addressing the court Counsel for the Claimant somewhat admitted that the Commissioner of Lands (North) allocated another plot to the Claimant in place of plot number P17. He however argued that it still was abuse to treat the Claimant like that without providing him with reasons. Counsel sees no point in taking the plots already allocated to the Claimant and giving them to other people. Counsel thinks the other people should have been given plots that had not been allocated to anyone else. 10. Much as this court agrees that it is not fair practice on the part of the Commissioner for Lands to take away a plot already allocated to one person and give it to another for no apparent reason, an offer for a lease by the Commissioner for Lands is not prima facie proof of ownership of the lease or the leased land on the part of the person to whom the lease or land is offered. The offer exhibited by the Claimant in this case is for a lease of the plot for 99 years. Section 40 of the Registered Land Act states that: “A lease for a specified period exceeding three years, or a lease which contains an option whereby the lessee may require the lessor to grant him a further term or terms which, together with the original term, exceed three years, shall be in the prescribed form, and shall be completed by — (a) opening a register in respect of the lease in the name of the lessee; and (b) filing the lease; and (c) noting the lease in the encumbrances section of the register of the lessor’s land or lease.” 11. Hence, section 24 of the Registered Land Act provides: “Subject to this Act — (a) the registration of a person as a proprietor of private land shall confer on that person the rights of owner of that land as private land; (b) the registration of a person as proprietor of a lease shall vest in that person the leasehold interest described in the lease, subject to all implied and expressed agreements, liabilities and incidents of the lease.” 12. With only the offer of lease, this court cannot declare that the parcel of land being Plot No. P17 next to the Bee Hive Schools in the City of Mzuzu belongs to the Claimant. That prayer is hereby denied. I5. 14. 15. 16. In as far as the issue of trespass to land is concerned, Clerk and Lindsel on Torts 18" Edition paragraph 18-01 states: “Trespass to land consists in any unjustifiable intrusion by one person upon land in possession of another.” In a manner that relates to this Makuta C. J. said in Msonthi v. Tikumbe Ltd. 12 MLR 16lat 168: “In order to succeed in an action for trespass, the plaintiff must prove: (a) that he was in actual possession at the time of trespass: see Thomson v Ward [1953] 2 Q. B. 153; he must have effective possession. It is immaterial whether his possession is rightful or wrongful; and (b) direct interference with the land, though there is no need to prove damage since trespass is actionable per se; see Gregory v Piper (1829) 9 B. & C. 591. It should be mentioned that although in general the only person who can sue for trespass is the person in possession, actual or constructive, at the time the trespass was committed, yet where the trespass has caused permanent damage to the land, a person entitled to the reversion may sue for the injury to his interest and he may do so at once without waiting until his future estate falls into possession: see Jones v. Llanwrst U. D. C. [1911] Ch. 393.” The question here is whether in the circumstances of this case, the Claimant had possession of plot No. P17 at the time he alleges the Defendant trespassed into it. In Wuta Ofei v Danquah [1962] 3 All ER 596, D acquired land in Ghana by gift made by way of oral grant in 1939 according to native custom. The land was marked out, four pillars bearing D’s initials being placed at the four corners of the land. The land was not built on or used, and D delegated to her mother the task of looking after the land. In 1940 certain lands, including this land, were vested by ordinance in the chief secretary in trust for the Crown free from all titles, but subject to provision for release when no longer required. In 1945 the gift to D was confirmed by indenture duly registered. This recited that D had entered into and had been in possession of the land ever since the gift. In 1948 the appellant started to build on the land. D protested by letter of her solicitors in March, 1948, and in April, 1948, brought an action for trespass. In 1956 the land was released by the government and D’s title revived. On whether D could maintain an action for trespass, Lord Guest in the Privy Council stated: “Their Lordships do not consider that, in order to establish possession, it is necessary for a claimant to take some active step in relation to the land such as enclosing the land or cultivating it. The type of conduct which indicates possession must vary with the type of land. In the case of vacant and unenclosed land which is not being cultivated, there is little which can be done on the land to indicate possession. Moreover, the possession which the respondent seeks to maintain is against the appellant who never had any title to the land. In these circumstances, the slightest amount of possession would be sufficient. In Bristow v Cormican ((1878), 3 App Cas at p 657), Lord Hatherley said: _ “There can be no doubt whatever that mere possession is sufficient, against a person invading that possession without himself having any title whatever—as a mere stranger; that is to say, it is sufficient as against a wrongdoer. The slightest amount of possession would be sufficient to entitle the person who is so in possession, or claims under those who have been or are in such possession, to recover as against a mere trespasser.” There is no evidence that the respondent ever abandoned her possession which in virtue of her grant in 1939 she obtained. Therefore, if there is evidence after 1940 of an intention to retain possession, that would, in their Lordships’ view, be sufficient to entitle her to maintain an action for trespass. It was said that her conduct was neutral. Their Lordships do not agree. It is true there is no evidence when the pillars were erected. But, if they were erected after 1940, that would be a definite act indicating possession. Even if erected before 1940, their continuance is some evidence of the respondent’s state of mind as affecting possession. In the indenture of 1945, which was registered, the respondent declared that she had entered into possession of the land and been in possession ever since. The only reasonable inference from her evidence is that, up to 1948, the date of the appellant’s entry on the land, she deputed her mother to look after the plot and that she was keeping watch on the land to see that no one intruded. At any rate, when she did notice the appellant’s blocks on the land, she took prompt action to warn the appellant off the land. The evidence is exiguous, but, in their Lordships’ opinion, it is sufficient to satisfy the test and is adequate proof of the respondent’s intention to continue her possession after 1940 and establishes that, when the appellant entered the land in 1948, she was in possession. She is, therefore, entitled to maintain an action for trespass.” 17. In the present case, the Claimants claim for trespass is not against mere strangers. It is against people who were authorized to enter and build on the plot by the Regional Commissioner for Lands (North). The bricks and quarry stones he mobilized on the plot may be sufficient indication of his possession of it, but due to the fact that the Defendants were authorized by the Commissioner for Lands who has all the duties given under S. 4 of the Land Act, it cannot be said that their entrance on to the land was unjustifiable. 18. The circumstances beyond the control of the Reginal Commissioner for Lands which made him withdraw the first plot and replace it with plot number P17 were not disclosed. Failure to disclose them implies that they may not have been justifiable circumstances. The reason for withdrawing plot number P17 was also not disclosed even in the purported defence of the Attorney Genel This also implies that there was no justifiable reason for withdrawing the plot from the Claimant. He legitimately expected to develop that plot after paying attendant fees and duties and being granted a development permission. As earlier noted, it was unfair to the Claimant for the Commissioner for Lands to withdraw it and give it to other people for no apparent reason. 19. S. 42 of the Town and Country Planning Act provides that: (1) A responsible authority may, and on the directions of the Minister shall, by written notice served on a person who has obtained a grant of development permission, revoke in whole or in part that grant of planning permission. (2) A notice of revocation served under subsection (1) shall include- (a) a statement of reasons for revocation; (b) such directions as the responsible authority shall consider necessary as to the cessation of any development that has been commenced in pursuance of the grant of development permission; (c) information of any claim to compensation that may be made in respect of the revocation; and (d) such other matters as may be prescribed by regulations. 20. It is because the proper procedure was not followed in this matter that we have the Claimant complaining. If it had been followed, there would have been a notice of revocation properly issued to the Claimant including information of any claim to compensation he wouid have needed in respect of the revocation. This court will therefore not make all the other declarations the Claimant has sought for in this case but that he be paid damages by the Attorney General as envisaged in 8, 42 (2) (c) of the Town and Country Planning Act for failure by the Regional Commissioner for Lands (North) to follow the right procedure, plus costs of the action. These will be assessed by the Registrar. 21. Ordered in Chambers this 14"" day of July 2023.