Ng'oma and 1 other v Mphande and 3 others (Civil Cause 75 of 2015) [2017] MWHCCiv 21 (4 April 2017)

REPUBLIC OF MALAWI MALAWI JUDICIARY IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 75 OF 2015 BETWEEN CHRISPIN NG’OMA………….………….………............................ 1ST PLAINTIFF MBACHI JOYCE NG’OMA…………………………………………… 2ND PLAINTIFF -and- LIPENGA MPHANDE………………………………………………….. 1ST DEFENDANT VILLAGE HEADMAN CHIUNDASI…………………………………… 2ND DEFENDANT NKHATABAY DISTRICT COUNCIL…………………………………… 3RD DEFENDANT THE ATTORNEY GENERAL…………………………………………….. 4TH DEFENDANT (REGIONAL COMMISSIONER FOR LANDS) Coram : Honorable Mr. Justice D. Madise Mr. T. Tembo Counsel for the Plaintiffs Mr. G. K. Nyirenda Counsel for the Defendants Mr. A. M. Mhone Official Interpreter Madise, J JUDGMENT 1.0 Introduction 1.1 The Plaintiffs in this matter commenced these proceedings on behalf of the Ng’oma family on 22 October 2015 by way of originating summons. They were seeking several declarations from the Court. The Defendants disputed the claims and called the Plaintiffs to strict proof. 2.0 The Declarations sought 1) A declaration that the 1st Defendant’s use and occupation of a piece of customary land at Chiwundasi Village in the area of Traditional Authority Malanda in NkhataBay District is unlawful 2) An order that the sale of the Plaintiff’s piece of customary land by the 2nd Defendant to the 1st Defendant is unlawful and void ab initio. 3) A declaration that the Plaintiffs are the rightful occupants of the piece of customary land and an order that they should recover possession. 4) Any other remedies that the Court deems fit and just towards the Plaintiffs, and 5) Costs of this action. 3.0 The Facts 3.1 Chrispin Ng’oma the 1st Plaintiff in this matter swore an affidavit in support of the summons. His story was that the Ng’oma family has been in continuous use and occupation of a piece of customary land at Chintheche in NkhataBay around Village headman Chiwundasi’s area in Traditional Authority Malanda. He stated that his maternal grandmother was born at the place which covers around 2 ½ acres of customary land. 3.2 To his surprise the 1st Defendant Mr. Lipenga Mphande has occupied that piece of land without his permission. The 1st Defendant has started erecting structures on the piece of land. When the 1st Defendant was confronted he stated that he bought the piece of land from the 2nd Defendant Village Headman Chiwundasi. In conclusion the Plaintiff stated that the 1st Defendant and the 3rd Defendant (District Commissioner NkhataBay) are now in the process of producing a lease over the disputed land. 3.3 In support of the Plaintiff’s story Rodwell Mwase, Butamu Banda, Dailesi Butamu Banda and Sophie Ng’oma, also deponed that they are from the area where the 1st Defendant is alleged to have a piece of land. Their story is that the land belongs to the Banda and the Ng’oma family as the Plaintiff’s mother was a NyaBanda. They disproved the Defendant’s story that they bought the land from village headman Chiundasi 3.4 In opposition to the affidavit in support and the summons (the 1st Defendant) Mr. Lipenga Mphande stated that the said piece of customary land was allocated to his son in 2013 by Village Headman Chiwundasi Chirwa. When his son wanted to start construction in 2015 Chiwundasi Chirwa demanded the sum of K3 Million as a “thank You”. The same K3 Million was agreed to be the purchase price. That when his son wanted to apply for a lease there was no objection from the chiefs and the District Commissioner NkhataBay. Finally the Commissioner for Lands (N) offered his son an offer of lease over the area. 3.5 Brighton Chiwundasi Chirwa agreed with the 1st Defendant that he was approached by the 1st Defendant’s son for a piece of customary land within his village. Since Richard Lipenga was born and raised in the said area he consulted his fellow clansmen and they all agreed to allocate him a piece of land. 3.6 Chiwundasi Chirwa stated that the piece of land in dispute belonged to his grandparents and it was allocated to the 1st Defendan’s son because the land was staying idle. 3.7 In conclusion he stated that the Plaintiffs father left the village and relocated to another village uphill. The version of events as narrated by Chiwundasi Chirwa were also confirmed by Posoni NyaBanda in her affidavit in opposition. 4.0 The Issue(s) 4.1 The main issue for determination before me is who owns the disputed land between the Plaintiffs and the 1st Defendant or and or the 2nd Defendant. 5.0 The Law 5.1 The Burden and Standard of Proof As is always the case in civil matters the Plaintiffs in this matter bears the burden of proof and the standard required by the civil law is on a balance of probabilities. He who invokes the aid of the law should be the first to prove his case. When the scales are evenly balanced it means the Plaintiff has failed in his duty to prove the case. 5.2 Title and ownership of customary land Section 25 of the Land Act is the starting point. All customary land is hereby declared to be the lawful and undoubted property of the people of Malawi and is vested in perpetuity in the President for purpose of this ACt. 5.3 Section 26 of the same Act provides that. The Minister shall subject to this Act and to any other law for the time being in force administer and control all customary land and all minerals in, under or upon any customary land for the use or common benefit direct or indirect of the inhabitants of Malawi Provided that a chief may subject to the general or special direction of the Minister authorize the use and occupation of any customary land within his area in accordance with customary law. 5.4 Customary land has been defined in Section 2 of the Land Act as all land which is held, occupied or used under customary law but does not include public land. Customary law is also defined as customary law in the area concerned. It is therefore trite from the reading of the above that chiefs have been given the general mandate to authorize the use of customary land within their area. 5.5 It is settled law in this Republic that there is nothing like ownership of customary land. Customary land is for communal use and inhabitants of Malawi must use and occupy the said land for their benefit as directed by their chiefs. Strict legal ownership of customary land is therefore alien to our Constitution and all laws under it. In more specific terms my senior brother Mzikamanda, J as he was then called in VH Zakeyo Chunga vs. Nowell Jere, Civil Cause No 176 of 2000, Mzuzu High Court, (unreported) held that: In short the law does not provide for individual title or ownership of customary land. The present law envisages communal ownership of customary land. The law would therefore find it strange for any individuals to claim title or ownership of a parcel of customary land. 5.6 However in administering the use and occupation of customary land chiefs must be guided by the Constitution. It is therefore against the law to deprive any person the right to use and occupancy of customary land without any justification. Any chief who purports to re-locate customary law must do so within the parameters of the law. Anything outside the ambit of the law will be annulled by the court. Indefinite individual usage and occupation of customary land is therefore permissible under the laws of Malawi. 6.0 The Determination 6.1 it is not in dispute that Village Headman Chiwundasi Chirwa sold land to the 1st Defendant’s son. Let me point out that this sale was null and void as at the moment customary land cannot be sold. Customary land cannot be owned. Malawians are only allowed usage and occupation as directed by their chiefs. Assuming Chiwundasi Chirwa gave the 1st Defendant’s son the right of usage and occupation, then he will be within the ambit of the law. 6.2 Looking at the affidavit evidence presented before me, I find as a fact that Village Headman Chiwundasi Chirwa does come from the area. He is the Chief there. I also find that the 1st Plaintiff and his family also come from the same area. What transpired in my view is that the Plaintiff’s piece of land was just lying idle and Chiwundasi took advantage of this and “sold” or allocated the piece of land to the 1st Defendant’s son. This was unlawful deprivation of customary land. It cannot be supported by any legal instrument. Chiundasi had no right to deprive the plaintiffs of their inheritance. 6.3 Chiefs must not be allowed to do this to their subjects. Being a chief does not justify illegal transactions. Whatever amount was paid to the Village Chief cannot be used to violate the Plaintiffs’ right of usage and occupation of the said piece of land. That money must be paid back to the Defendant’s son. There was no valid sale of this piece of land. Customary land cannot be sold until and unless the law is changed. The lease that was issued by the Malawi Government is void ab initio. It is premised on illegal transactions. It is therefore cancelled and has no legal effect in law whatsoever. 7.0 Conclusion 7.1 I therefore order the 1st Defendant, his servants and or agents to vacate the piece of land in question within 21 days and the same should be handed over to the Plaintiffs within 28 days from today. A permanent Order of Injunction against all the Defendants is hereby granted in respect of this piece of land. The 1st Defendant must suffer the costs of this litigation. It is ordered. Made in Chambers at Mzuzu in the Republic on 4th April, 2017. Dingiswayo Madise JUDGE 7