Ngwira v Ngwira & Chiumia (Miscellaneous Civil Case 36 of 2018) [2024] MWHCCiv 22 (24 April 2024)

IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY CIVIL DIVISION MISCELLANEOUS CIVIL CASE NO. 36 OF 2018 (Before Honourable Justice Mdeza) BETWEEN FRANCIS NGWIRA . . CLAIMANT AND PATRICK NGWIRA pr DEFENDANT ABEL CHIUMIA 2N° DEFENDANT Coram: Honourable Justice Simeon Mdeza Chibwana, of Counsel, for the Claimant Zimba, of Counsel, for the Defendants Mtaya, Court Reporter Mwangosi (Ms), Official Interpreter JUDGMENT The Claimant commenced the matter herein seeking a finding that the property Plot Number 25/SQ/73 located in Area 25 in Lilongwe, belongs to the Claimant and a permanent injunction against the 1“ Defendant, who is the father of the Claimant and the 2™ Defendant, who was the buyer of the property, from selling or buying the said plot cither by themselves, their agents, servants or whosoever be. The Defendants filed a joint defence. The 1* Defendant claims that at the time he was selling the plot in question, he had legal title and was entitled to sell the plot to the 2" Defendant. The gu Defendant claims that he is a bena fide purchaser for value of a legal interest without notice, and he made all reasonable inquiries to confirm that the 1° Defendant owned the plot in issue. 1 would like to put it on the record, at the onset, that when coming up with this judgment, I have relied on what I may loosely call the ‘judges notes’. There is no record of proceedings, properly so called, because the Court Reporter/Recorder who accompanied me during the hearing died before she could transcribe the record. May her beautiful soul rest in eternal peace, Efforts to find her shorthand notes for transcription or to retrieve the recording of the proceedings on her recording device yielded no positive results. | Two witnesses testified in support of the Claimant’s claims. The first witness (CW1) was Francis Ngwira, the Claimant himself. He testified that he was born in September 1990. His mother gave him land around 1997 when he was 7 years old. He was not sure if his father and mother agreed to give him the plot. Later Lilongwe City Council (The Council) embarked on the process of adopting squatter settlements in Arca 25. To that effect, the Council later wrote the Claimant a letter requesting him to pay regularization and other attendant foes. Since he was young, his mother was processing the same on his behalf. The witness testified that he has not brought to Court any title document for the land. The only proof of ownership he has is the letter from the council requesting him to pay regularization fees and proof of payment of the same made on 15" August, 1997, Later after his parents divorced, as part of the process of distribution of jointly held property, he was given the plot to be held on trust by his mother. His father sold the plot. The 2" Defendant had already started developing the land when he discovered that it was sold. He got an ex-parte injunction, which was discharged later. He further testified that when the dispute arose the Court wrote the Council requesting it to assist the Claimant who was trying to establish who, according to the Council’s records, the owner of Plot 25/SQ/73 was. This letter was tendered in court and is marked as FN1. The witness also wrote the Council and received a response confirming that the plot is registered in Mr. F. Newira’s name, The two letters were tendered in court and are marked as FN2 and FN3 respectively. His mother told him about the plot when his father was out of the country. He assumes that although the initial payment for the plot was made outside the 30 day period stipulated in the offer letter from the Council, the Council accepted the money and the plot was registered, If the Council felt that he was in breach of the offer, it could not have accepted the money paid and issue a receipt. The land remained idle due to the presence of three phase power lines which were considered to be dangerous for any development. When he attained the age of majority he approached the Council to inquire how far the process of removing the power lines had gone. He was told to wait. He started mobilizing building materials with the help of the 2"? Defendant. | The 2™ Defendant later proposed that the land be sold to help him raise money but the Claimant refused. He later learned that his father was advertising the plot for sale. When confronted the 2™ Defendant declined. A few weeks later his mother called and informed him that ‘his father had sold the plot. He met the buyer and notified him that that the plot did not belong to the person who sold him, Mr. Patrick Newira. He told him to stop using the materials he had found on the site, a request the 2’ Defendant refused. He took a picture of the plot the day he notified the 2" Defendant of the illegal acquisition. The picture was tendered in court as part of his evidence. It is marked as FN4, He approached his dad who elected to ignore him hence the present action. The second witness for the Claimant (CW2) was Victoria Nkhata, the Claimant’s mother and the 1" Claimant’s former wife, She testified that she lives in Arca 25. She does cross border trade since 2005. In the early 90’s while married to the 1 Defendant she was making'decorated chair cover sets for sale. Through this business she was making a lot of money. She married Mr, Patrick Ngwira in the 1980’s. The first Defendant was a truck driver and was mostly absent from home and from the country. In those days a good part of what is now area 25 was a bush and open to squaticrs. Like many others she got a vacant piece of land and cleared it on her own [without the assistance of the 1* Defendant] because the 2’ Defendant was against her squatting on the land. She used the land for and growing maize for three seasons without any issues, Upon noticing developments in the area, in 1997, the Council invited all squatters for discussions towards regularization of their occupation of the land. They were told to submit their names and for her plots she submitted the names of her children Patricia Ngwira and Francis Ngwira. Her land was subdivided into two plots and the Council designated them SQ/25/72. and 25/SQ/73. She did all the processes at the Council and in respect of Plot 25/SQ/73 she was given an offer in the name of her son, Mr. Francis Ngwira. An offer letter for the plot was tendered in Court as part of the Claimant’s evidence and is marked as Exhibit VN1. Through the’ letter she was expected to pay fees within 30 days in order to regularize ownership. She paid, Since she had already given the land to her son, the offer came and payment was made his name, F. Ngwira. The witness tendered a Lilongwe City Council receipt (Exhibit VN2) dated on 15 August 1997. | Development surveys were to follow, however, the same stalled duc to the presence of three- phase overhead power lines. The Council suggested that further work could on’ be carried out after the electricity lines were moved into the road reserve, She was ground rent for the land but lost other receipts during her divorce. One of the receipts was tendered in evidence (Exhibit VN3). There were people who tried to encroach on the land and to signify their presence on the land and her then husband noting the trouble she was going through protecting the children’s interests bought bricks and built a fence to mark boundaries of the plots and secure them. Two small houses were built on the plots so the children have a starting point. The Defendants called three witnesses. The first witness was the 1‘ Defendant, Patrick Newira (DWI). He testified that he is a truck driver and a businessman doing various businesses in Malawi. He held plot number 25/SQ/73 as his property ever since he obtained it in 1980 before the Claimant herein was born, until I disposed it by sell to the 2"! Defendant in F ebruary, 2018. According to the witness the background to the plot in issue is that his house was behind these plots, and since there was no activity there, his family used the land for farming. They started farming on the plot in 1980, Sometime in 1994, after multiparty, people begun allocating land to themselves so he claimed the disputed land and decided to build on it. The Claimant was only a year old at that time. In 1995 a committee was formed in the area with the aim of engaging Lilongwe City Council to give the squatter plots numbers with the aim of facilitating water and electricity connections. The City Council officials went and allocated squatter plot numbers. Considering the size of the land, he decided to divide it into two plots. On one plot the family built a house using bricks that were not burnt and it was roofed. The house that they built on the other plot was not roofed so it fell down, The Claimant’s mother and the 1 Defendant later divorced. Following the divorce they were made to share the property they jointly acquired and the ist Defendant was given the two plots including the plot in issue and the Claimant’s mother was also given two plots. His wife was not happy with the property distribution order, She had wanted to have the house that was given to him and where he was staying with the children. Throughout the subsistence of their marriage there was no agreement express or implied that the plot in issue should be given to the Claimant. The witness further testified that he started build building on the plot that the divorce court gave him (Plot 25/SQ/73) and completed foundation level. He also applied for watet and clectricity connection. He could not complete construction of the house due to financial challenges. He later decided to sell the land so that he could use the funds to fix his car. A buyer was identified but he could not give him access to the title documents of the land because he had deposited the same with Opportunity International Bank of Malawi (OIBM) owing to a loan he had obtained. Together with the buyer, the 2"! Defendant, he conducted a search at Lilongwe City Council where it was confirmed through a register that he was the owner of the land. The City Council, however, could not trace the official file of the plot because it was anoldonc. When the buyer wanted further proof of ownership of the Plot, the witness told the Court that, he took the 2"' Defendant to OIBM where bank officials confirmed to the 2™ Defendant that the witness had used a letter from the Council confirming that he owned the plot as security for the loan. The witness tendered copies of a loan offer and a letter he wrote the bank for the release of his documents (Exhibit PN1 and PN2). The second defense witness (DW2) was Abel Chiumia, a business person and gn Defendant herein. He testified that he bought a piece of land, plot number 25/SQ/73, from the 1" Defendant in February, 2018. The said plot was advertised to me through an agent, Mr. Robert Losani, and he expressed interest in the same he was assisted by his lawyer in the process of acquiring the plot. Before he bought the plot, he made sure to familiarize himself with the plot. He make sure that he had done all that was necessary to obtain information about the said plot and! the seller. As such, he requested to see the documents of the plot from the 1 Defendant. He was told that the first Defendant had obtained a loan from Opportunity International Bank of Malawi (OIBM) (now First Capital Bank) and that he surrendered his documents to the bank. T. ogether they went to Lilongwe City Council if the plot was registered in the name of the 1“ Defendant. They confirmed that the plot was registered in the name of P. Ngwira, the 1 Defendant. Me requested to be shown the actual file, but I was told that the same was a register in form of an old [hard cover] book. A copy of the register entry was tendered in court as part of the Defendant’s evidence. It is marked as Exhibit AC6. The register entry for plot 73 reads: Mr. Newira Box 40236 Lilongwe 4 and not P. Ngwira as claimed by the witness. When ‘asked, in cross examination, the witness admitted that Mr. P. Ngwira is not the same as Mr. Newira. The witness went further to testify that he was convinced from City Council that the 1“ Defendant was the owner of the plot. Despite being thus convinced he went further to conduct searches at ESCOM and Water Board where he confirmed that clectricity and water supply respectively was registered in the name of the 1“ Defendant. The witness tendered a completed ESCOM service application form and a Lilongwe Waterboard utility payment receipt in support of the assertion. See Exhibit AC1 and AC2 respectively. Since Mr. Ngwira had advised him that his title documents were with OIBM the witness went to the bank where it was confirmed to him that indeed Mr. Patrick Ngwira had obtained a loan and his documents including jones pertaining to the plot in question had been used as collateral. However, ihe bank had misplaced the documents because the bank was being sold. It was after all these confirmations that the 2" Defendant instructed Counsel to drafi a sale agreement that we could execute, which he did. He tendered a copy of the sale agreement in evidence. It is marked as Eixhibit AC4. After the purchase, he started developing the plot by changing the whole setup of the plot in that I demolished some of the walls which were there and reshaped them, then he paid an architect for the shops’ designs which he did, and he also erected shops at the plot. The withess tendered a photograph of the structures he has constructed on the land, The same is marked as Exhibit ACS. He confirmed that the Claimant never at any point in time approached him at the plot to advise him of his complaints; otherwise, he could have explained to him in detailed how he made up my mind to buy the same. The witness further testified that it is very clear that he followed counsel of due’ dllizense, and took it upon myself to make sure that I had made sure that the plot in issue that he was buying had the owner in the 1 Defendant so that he does not lose my moncy. The testimony of the 3" witness for the Defence (DW3), Robert Losani was more or less the repetition of that of the first 2 witnesses. I will not reproduce it but I will refer to it in the course this judgment. : Issues for Determination There are two issues for the Court to determine, namely; (a) Whether or not plot number 25/SQ/73 belongs to the Claimant and not the 1 Defendant, (b) Whether or not the 2™ Defendant is a bona fide purchaser for value without notice. Determination The burden of proof in this case lies on the Claimant. He has to satisfy the Court to the appropriate level of preponderance that it is he who is right. To this effect, in the absence of an actual title document to the property, the Claimant has brought documentation in the form of an offer letter from the Lilongwe City Council (Exhibit VN1), a receipt issued upon payment of regularization fees (Exhibit VN2), a letter from the Lilongwe City Assembly confirming that the plot is registered in the name of the Claimant (Exhibit FN3) and a lettcr from! the Court to the Council and a response thereto (Exhibit FN3) to support his claim. Fred King Nkhwazi v Liquidator of Finance Bank [2009] MLR 159 (HC) Chine J, as he then was stated that: “the rule of thumb invariably is one which requires he who alleges to prove the allegation he makes. In civil matters, as is well understood, the degree of proof expected is only that of a balance of probabilities, A Court, when faced with a matier in dispute thus starts, so to speak, from scratch, in that it assumes nothing in a case, and knows nothing in it, until afler the parties have filled it in with requisite evidence to enable it to determine the dispute.” It is indeed settled law that the burden of proof rests upon the party, that is, the Plaintiff or the Defendant, who substantially asserts the affirmative of the issue.'Sce Tembo and others v Shire Buslines Limited [2004] MLR 405 (HC). In opposition to the Claimant’s claim, the 1° Defendant asserts that the plot was his and therefore, had the right to dispose it off however he saw fit. The 1“ Defendant relied on the bank loan agreement (Exhibit PN1), a secondary document, which makes reference to the said plot. The only reference to the plot made in the bank loan agreement, which was a handwritten, unlike the rest of the document which is in typed form, is an insertion of the plot number 25/SQ/73, an’ insertion which was not signed for, The 1 Defendant, in cross-examination, failed to explain why the insertion of plot number 25/SQ/73 was handwritten on the bank loan agrtement and not typed like the rest of the document. Again, the witness gave no plausible explanation as to why the insertion is not signed for. : The insertion thereon in handwriting plot number 25/SQ/73 is not wrong in itself but rather, brings into question the authenticity of the insertion. Was it part of the original agreement? This doubt is then heightened by the lack of an explanation from the 1“ Defendant. If the bank had indeed misplaced his documents, due diligence would have demanded that the 1* Defendant bring the Bank to testify to that effect. The 1° Defendant failed to produce any documentary evidence of allocation of the plot by the Council to him. The 1° Defendant produced a letter as evidence requesting the Bank to give {him back his documents. There is no stamp showing that the letter was delivered to the bank. There is no response or follow up. The letter is intended to prove that the Bank is keeping his documents relating to the plot, however, there is no other evidence to show that he had once possessed documents which conferred the legal rights over the property to him, or that he had in-fact handed over the documents to the bank. Exhibit AC1 is an ESCOM application form for new service. It does not show plot number 25/5Q/73, but simply Area 25A, which is not proof that the 1 Defendant owned the disputed ‘ plot at all. Exhibit AC2, the Lilongwe Water Board's receipt, shows plot number 25/B/1437B, which is not plot number 25/SQ/73 as the Defendants would want the Court to believe. In any event, Lilongwe Water Board receipts in themselves are not proof of ownership of a land. We cannot automatically assume that the Lilongwe Water Board was provided with proof of ownership of the plot otherwise the Lilongwe Water Board should have testified to that effect. The 2" Defendant entered into evidence a photocopied document marked ‘Exhibit AC6.’ The document was not authenticated. They claimed that the document was an extract from the registry at the Lilongwe City Assembly indicating ‘72’ and ‘73’ and owner as ‘Mr Newira.’ In the case of Mpinganjira v Lemani and another [2000-2001] MLR 295 (HC), Kapanda J, as he then was, stated that a party relying on mechanically produced evidence must satisfy the court that it is authentic and before it is admitted, there must be a testimony defining!and describing the provenance and history of the recording up to the moment of its production, in court as an item of real evidence. | In the present case, the document purportedly being a photocopy of a page in the registry was supposed to be authenticated cither by Lilongwe City Assembly or a Commissioner of Oaths. The absence of cither show that there is no proof of its originality. Despite a few inconsistencies in the evidence of the Claimant, one element that stands out is the fact that the Council, when conducting the process of adopting squatter plots, in respect of Plot number 25/SQ/73, addressed Exhibit VN1 to Mr. F Ngwira as opposed to Mri P. Ngwira or indeed Mrs. V. Ngwira. Payment of fines and regularization fees was reccipted to’ Mr. F. Ngwira (Exhibit VN2). Similarly, the only proof of payment for ground fees available was reccipted to Mr. I? Ngwira (Exhibit VN2). This clearly dispels off the assertion of subjecting. the plot to the jurisdiction of the Court when distributing matrimonial property when the 'Court of the Magistrate was distributing jointly held property upon the dissolution of the parents’ marriage. From the facts of this case and the evidence available, the 1 Defendant has failed to dispel the assertion that the Claimant is the rightful owner of the property in dispute, more so because the Claimants assertion is substantiated by a letter from the Council with his details as the rightful owner of plot number 25/SQ/73. Therefore, it can reasonably be concluded that the 1" Defendant does not have title to plot number 25/SQ/73 and I so hold. Nemo dat quod non habet, is a persuasive legal maxim which states that no one can give what he does not have. One cannot give a better title than that which they themselves possess. An exception to this rule was reiterated in the case of Elias Sawerengera vy Caroline Phiso Luwayo Civil Cause No. 17. Of 2007 (unreported) (2012). In that case the court considered and applied the Transfer of Property Act, 1882 which is a statute of general application. The Court opined that under this Act there are some rights provided to the bona fide purchaser, who purchases the property under a defective title. The Court cited section 41 which provides that: “Where with the consent, express or implied of the person interested in immovable property, a person is the ostensible owner of such property and transfers the same under consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make il: provided that the transferee, after taking reasonable case to ascertain that the transferor had had power to make the transfer in good faith.”’ ‘The defence of purchaser of a legal estate for value without notice is an absolute, unqualified, unanswerable defence as propounded in Pilcher v Rawlins (1872) 7 Ch. App 259. It is an equitable defence which must be pleaded by the one setting it up. Sec CK Male & Anor y LNK Banda [2014] MLR 90 (SCA), The Court in NBS Bank v Mkada & others [2011] MLR. 233 (HC) held that to qualify as a bona fi de purchaser for value without notice one must satisfy three requirements: that they must have given consideration in money or money's worth; they must have had no notice, actual or implied, of interests affecting title to the property and they will be bound by equitable interests of which they may in fact be ignorant but whose existence they would have discovered had they acted as a prudent person of business, placed in similar circumstances. See also the case of Selina Zainab Kankhulungo v Kettie Tiyanjane Kankhulungo and Another’ Civil Cause 48 of 2017 [2021] MWHC 189. The Court in Kankhulungo v Kankhulungo & Another (supra) cited with approval the Zambian Supreme Court of Appeal decision in Joyce Ndavula Gondwe v Christine Zowolile Ngwira Appeal Case No. 37 of 2015, wherein the Court emphasized that: in purchasing real properties parties are expected to approach such transactions with much more serious inquiries to establish whether or not the property in question has encumbrances. Buying real property is not as casual as buying household goods or other personal property. It was held in Regina Violet Chakanza v Zimwani Corporation Ltd & Others {2013] MLR 308 (HC) that a purchaser who makes no effort to discover whether the property is encumbered or not cannot be said to be a bona fide purchaser for value without notice. The 2™ Defendant was not diligent in making an effort to discover whether the plot actually belonged to the 1 Defendant, otherwise, if he would have searched, he ought to have known that plot number 25/SQ/73 did not belong to the 1 Defendant. As a matter of fact, it is my opinion that upon conducting a search, the 2" Defendant did discover that there was no conclusive evidence to the effect that the land belonged to the 1 Defendant as demonstrated by reliance on secondary evidence such as exhibits PN1 and 2 as well as ACI, 2, 3, and 4, but proceeded to buy it anyway. This lack of diligence is further demonstrated by the flimsy evidence which the 2™ Defendant adduced through his supplementary witness statement by introducing Exhibit AC6 which seek to suggests that the Defendants conducted a search which yielded undesirable results hence the tendering of Exhibit AC6; a document which the Defendant ultimately conceded had no legal significance and that it was not conclusive evidence that, without supporting evidence, the Mr. Ngwira appearing in the document refers to Mr. Patrick Ngwira, the 1° Defendant. For the avoidance of doubt, I find that the 1 Defendant is not the rightful owner of the disputed property and that the 2" Defendant is not a bona fide purchaser of a legal | estate for valuc without notice. As a point of law, one cannot develop on the land of another without their permission. ‘The Defendants are hereby permanently restrained by themselves or through their! servants and/or agents from occupying, possessing and in any way developing Plot number 25/SQ/73. The Defendants are ordered to remove all the materials they brought or added to the Claimants land within reasonable time, so as to not hinder the property rights of the Claimant. Costs are for the Claimant. Pronounced in Open Court this 24" day of April 2024 at Lilongwe in the Republic of Malawi. JUDGE