Sonkhanani v Chayekha (Civil Cause 409 of 1987) [1990] MWHC 19 (30 April 1990)

* IN THE HIGH COURT OF MALAWI Jf at PRINCIPAL REGISTRY | Wis Co “CIVIL CAUSE NO. 409 OF 1987 oe 7? ceeeccceeeccceees, PLAINTIFF beetedeesees. DEPENDANT MKANDAWIRE, 3. cache + akatiga of Counsél for thé Plaintiff Makhalira of Counsel for the Defendant Gausi (Mrs), Court Reportér Katuhga, Court Clerk Wesheew so. Lkee Lesa ka SBRRSSRE LAE cae eee JUDGME NT PRE plaintiff is Claiming the sim 6F K2, 7% and 6f Alleged trespass t6 1aha afd Q66ds. It is tHe statement of Glaim that the defendant had hd maliciously induéea anid preceuread 6nre Ht £6 6611 & pieée SOF 1aha t6 the piaintiff ana 8 of thé breach that followed; the plaintiff f6F@d 1686 ahd damage to the extent of K2,770.00° rt théf alléged that by his s@fvafhts of agénts, the jt Boks and entered thé plaintiff's said land €@fid carried away 3,000 briaks therefrom. The plaiftift if a businessman. He Has maize 8; Wh6lésale and rétail shops. He has @stablishments CHE tGkA16; Nkafido, Limbuli and 6thef piades: He bought : hésé Shops from Indians when théy m6vead to urban ae t°Wab his evidénce that if about May/June 1987 “OeGid6d tS instal a Maize Will and ope a Fetail shop “RUG Trading Centre: He séledtéd a sita but hé was Anf6FWMEd that that place belonged to MF. Sakuli: This Sakuii Gave 6¥idence as PW3, The plaintiff then cofsuited ‘BARGLi WHO agreed to #611 the piece Of 1afd: Before Liifig thé piece of land it 18°8aid that Bakuli first GonSUlted His relatives who consented to thé Baie. The ~ plaintiff Himself went to the Village Headmah who confirmed that €H@° pisée of 14nd belonged t6 Sakwliy THE agreed Fi GS Was K200.00 which was daily paid.» THIS Sakuli *t6 be a builder ara s6°it was Further agreed He Was going to @reét the Building to Howse the maize Mill for K300.00 Tha plaintiff bot@lit 4,000 at K35.00 per 1,000. These bi dcks were ¢611@ ited to the sité By Sakuli at a cost of K100.00 The piaintiff spent a 27 iisisscs furthér K20.00 on casual labourers. As it happened ‘ go \ n't Saktili @id not put up the building because the defendant \* \_ J 3 came to- the site; removed the bricks and dumped them “. i j hé évidence of Mr. Sakuli Selemani is that he he piéce of land to the plaintiff at a price of -Th@ land belonged to him bécause his mother and grandparents. diéd there. He was going to build at a price of ‘K20 0 The contract of sale of land was evidenced hilé the contract to eréct the building was by EX P1A. This witness confirmed that the re. indeed removed by the defendant, In cross- that the deféndant is his younger said that he had consulted his the Villagé Héadiman and they consen- denied that the land he 801d belonged hé Géfendant is also a businessman. He has Rus Trading Céntre. He denied to have induced ed Sakuli to breach the contract of sale with ff. After all, he did not even know that there ah agreement. All he knew was that the plaintiff Sught some bricks on a piece of land belonging to a@ohingwé without her consent and on thé instructions faehingwe he had removed thé bricks. Before he @ bricks the plaintiff was réquestéd to remove $ did not do so. It was also his evidence that hé Knew, nobody had allowed Sakuli to sell the @ plaintiff. This matter was referréd to the pistFiGt C6nmissioner who instructéd the plaintiff to rem- ové the Bricks but he did not comply: It is most unfor- tunate that this Mrs. Kachingwe passed away in March, Hise Felesta Kachingwe was the sécond witness for the éfénee. She is a sister to the defendant and to Sakuli twas her evidence that Sakuli did not approach het that he Wanted to sell the piéce Of land to the pie She was just surprised that Sakuli had broéught 86mé bricks on her late Mother's land. Her late .. m6thet Was Mrs. Kachingwe. She asked Sakuli whe said he wanted £6 build a house but ne did not say he was build- ng thé plaintiff. She chen told Sakuli not to build the land was not his. She also told him to é@ bricks, but instead Sakul:. brotight more fee days later. The next thing she saw were péople digging foundation in her late mother's land. TRi8 lana dispute was referred to the District Commissioner who f6Wfd the plaintiff to be in the wrong. He was told to rém6ve his bricks and to stop the builders. This wit- ness téstified that it was indeed the late Mrs. Kachingwe who askéd thé defendant to remove the bricks from her land. tt was Mrs. Kachingwe who gave money to the defend- ant td pay the transporter who collected the bricks. = 9 « _ Robert Kachingwe was the third witness for the His evidence is not very different from that DW2. He too, told the court that the land on whic @ plaintiff wanted to build belongéd to Mrs. Kach _ He also said that this land dispute was reférréd to the District Commissioner who told the £ to remove his bricks, but he did Hot comply. The evidence before thig court i8 rather g- I shall, however, do my bést to résolve ute between the parties. It is allégéd that the induced and procured Saktili not to sé11 the and to the plaintiff. A person cannot be héld inducing to breach a céftract unléss he knéw hee of such a contract - 866 thé case of ford and Sons Ltd. - v - Lindley and Another. 9. In the instant casé there is not even a énce that the deféfdaht knéw of the contract wéén Sakuli and thé plaintiff. No evidence the question of knowledge on thé part of the 4 éfdant. Sakuli said he told hig relatives that he fr was séllihg the land, but he did not call any of the rélativésS. He did not, for example, say that hé had _ told defendant that he had sola the land to the pla _ The plaintiff must show that there was an inté 4i invasion of his contractural rights and not iat the breach of contract was thé natural ic@ of the defendant's conduct - Scott v Gamble KB 504. It is conceded that the defendant ricks from the site but in my view that act interpreted as to mean that he had procured Saktil bréach the contract of sale. The evidence shows that Sakuli never came out in the opén about whatévér dealings there were between him and the plain- tiff. For 6xample, when he was asked about the bricks he said they were his when, in fact, they were not. This H6ad Of action must therefore fail. I now move on to the n@xt head of action, that trespass to land. It is alléged that the ht by his agents or servarits broke and éntered tiff's land and then removed bricks therefrom. denied that the defendant removed bricks. _. Bu h estion is: from whosé land did hé remove the bricks; was it the plaintiff's land? Trespass is an action against possession not ownership - see the case of H. EB. Stindu - v - Press Furniture and Joinery, Civil Causé No, - of 1986 (unreported). The plaintiff's case is that he got possession from Saktili. He told the court that hé bought the land but beforé buying, hé wént to the village headman who confirmed that he land belonged to Sakuli. The village headman was not calléd to con- firm this. Sakuli himself said the lanc was his because it belofigéd to his late mother. This contention has not beeh substantiated. I prefer the evidence of the defend- ant and his two witnesses to that of Sakuli. f af aware that DWi, DwW2 and DW3 are aJl from the same family. They re, in fact, related, but they gave me the impres- Sion that théy were telling the truth that this land belonged t6 the late Mrs. Kachinhgwe. It was iff fact heft @@fd6H,. Thére is evidénce to the effect that whén Saktli was bringing the plaintiff's bricks 6n thé land, thé 2a€6@ Mrs. Kachingwe had crops in the gardén. THEE AlS6 évidence to the eff@ that whén the plaintiff's when were digging thé fotihdation, théy were aétually de@molishing ridges. This teafis that the late Mrs, Ka&ehingwe was not only thé owner of thé land but shé Was also in possession of thé same. Sakuli had no right t6 this land. [It follows that he could not pass any £i#1e@ to the plaintiff. Sakuli could not lawfully 8611 €H@ land. It follows, therefore, that thé plain- tiff G6u1d not be in possession of this land. Hé did not have thé right to possession, immediate or othérwise. The aé€Sndant removed the bricks on thé instructions of thé laté Mrs; Kachingwe who was the possessor of the land. It Gannot therefore be said that in entering upon the land the defendant was committing trespass. - + os Alternatively, if the defendant was in posséssi6nh at all, then such possession was wrongful and _ he cafinot maintain this action against the true owner. Wheré thére are two persons claiming possession, the law. régards the one entitled to the land as the posssssor. "If there are two persons in a field, eo% @ach asserting that the field is his, and -- @ach doing some act in assertion of the - »¥ight of possession, I answer, the person _ 4 4,.who has the title is in actual possession and the other one is a trespasser." In thé instant case it was Mrs. Kachingwe who was entitieéd to the land. I am not talking of title by way of 466d because this was customary land. The evidence, howév6éf, Shows that the land belofiged to Mrs. Kachingwe. it was hért garden and the time thé plaintiff's bricks wété Brétight onto the land, her crops wére still there. .. THE aGtién for trespass is therefore dismissed. _ ee I now have to look at the th:.rd and last head of a€tioh. Did the removal of. thé bricks amount to convérsiGh? Cofiversion may be defined as the taking possession of another man's goods withort authority and with thé intention of asserting some rijyht or dominion over thé or the dealing with goods in a manner inconsis- tent with the right of the true owner provided there is an ift@ntion on the part of thé pérson so dealing with them t6 negative the right of the true otvner or to assért @ fight inconsistent therewith - see Clerk & Lindséil on Torts, 4th Edition, paragraph: 1079. In the nstan somebody's land. There was 4a suggestion that there asé, the plaintiff had brought ss:ome bricks on |} S6tS of bricks, one for thé plaintiff and the je Sakuli. 1 find that theré was only one set 6. $Sakuli was only hiréd to bring the plain- bricks. Mrs. Kachingwe told Sakuli to remove the t instead he brought more. There is evidence _tha istrict Commissioner told the plaintiff to . ~FemMOve His bricks but he did not comply. Then the defend- ant rém6ved them on instructions from the owner of the land. th these circumstances, it cannot be said that the def énd had any intention to assért some right on the bricks. Hé Was only abating a nuisance. In Fouldes - v - ouighby (1841) 8 M.s.w. 540, the plaintiff had ifn the defendant's ferry-boat, two horses, and for théir passage. Subsequently, the latter withe Stification, refused to carry ott his contract and 6d thé plaintiff to remove them from the boat. ie aHtiff refused, the d@fefidant t66k the horses and Hem 160sé On thé landinig*piaéé: AR action f6F @ iG f4i116d, on thé basis that thé defendant mti6h of assertifig any right or dominion B88, jitilariy, in the instant case, in taking the Cannot be said that thé d@fendant had any | @8serting aty right 6f dominion over them. ‘Femoving that which waS wrongly on the land. take them far and thé plaintiff knows whére eft. The action for edhvérsion A180 fails. Pathe tesuit, this aetien fatis an its t 48 accordingly dismissed with costs. OUNCED in upen Court this Joth day of