Mwanyongo v Mwakaileke and Another (Civil Cause 1 of 2016) [2022] MWHCCiv 64 (28 June 2022)

IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 01 OF 2016 BETWEEN JOSEPH MWANY ONG ovessisss casacavicancasionasneanaizicacodansceeveaaess CLAIMANT -and- BERNARD MW AK AILERE pc ces:csesanwearennnwenasnennaaereieuneveelaind siiinntihiin 15T DEFENDANT MPEKETUKA MKANDAWIRE ...ccccescvcssvcscsscsserssececssncsonnesstsensenss 2ND DEFENDANT CORAM: — THE HON. JUSTICE T. R. LIGOWE Mr. C. Chithope-Mwale Counsel for the Claimant Messrs. John Tennyson & Associates for the Defendants/Absent Mr. G. Msukwa Official Interpreter Mrs. R. Luhanga Court Reporter JUDGMENT qe This matter commenced by originating summons on 6 January 2016, which was served on the Defendants on 12 January 2016. The Defendants had 14 days to respond to the summons as required by the rules but they did not. 2 The Defendants appointed Messrs. John Tennyson & Associates as their Legal Practitioners who applied for the action to be dismissed for want of prosecution, but the application was dismissed on 6 November 2018. Even then, the Legal Practitioners did not file any defence or respond to the originating summons in any way. The Defendants' Legal Practitioners were also served with the notice of hearing today, but have not attended court and communicated no reason for their absence. As such, the Claimant's claim is not controverted at all. | have read the originating summons and the affidavit in support. | have also heard Counsel's submissions for the Claimant's case. In brief, his claim is that he inherited 0.35 hectares of land opposite Karonga Mosque at Karonga from his father, and he applied to lease the same, for which he got the offer from the Regional Commissioner for Lands (North) on 30 March 2015. He complied with all the obligations stipulated in the offer letter and as such, a valid lease agreement for 99 years exists between him and the Government. However, towards the end of 2015 the 1 Defendant started building a house starting from a portion of land allocated to the 2"? Defendant extending to the plot the Claimant leased. He complained about this to the District Physical Planning Office at Karonga which wrote the 1st Defendant informing him that tne land belonged to the Claimant and that he should stop the construction. Despite this, the Claimant states that the 1st Defendant continued to construct on the land. The Claimant argues that the actions of the Defendants amount to trespass and interference with his property, and he would like the Court to declare:- a) That the Claimant is the rightful owner or rightful person to exercise property rights including peaceful Use and occupation of the 2 10. piece of land he inherited from his father to the exclusion of alll others including the Defendants. b) That the Defendants do not have any legal basis to interfere with and prevent the exercise of proprietary rights by the Claimant which include peaceful use and occupation of the said piece of land. c) An order of permanent injunction restraining the Defendants and their servants or agents or whosoever from developing or erecting any structure or trespassing or doing or authorizing the doing of any act as may be done by an owner of land on the Claimant's piece of land. d) An order condemning the Defendants in damages for trespass. e) An order condemning the Defendants in damages for inconvenience, and f) An order for costs of this action. Because the action has not been defended, | order in favour of the Claimant with respect to all the reliefs sought. The damages will be assessed by the Registrar for the period the Defendants have been encroaching on the Claimant's piece of land. And as that will be done, damages for trespass will be taken to include any inconvenience the Claimant may have suffered during the period of the trespass. Delivered in Open Court this 28th day of June 2022.