Registered Trustees of Living Waters Church v Singini and Another (Miscellaneous Civil Cause 58 of 2016) [2020] MWHCCiv 47 (7 January 2020)

1 IN THE HIGH COURT OF IMALÁWI MZUZU DISTRICT REGISTRY MISCELLANEOUS CIVIL CAUSE NO. 58 OF 2016 BETWEEN REGISTERED TRUSTEES LIVING WATERS CHURCH . PLAIN I'lFF AND SINYA SINGINI........ DEFENDANT WILLIAM KAWECHE....2 ND DEFENDANT CORAM: Honourable Justice T. R. Ligowe C. Ghambi, Counsel for the Claimant A. Siadi, Counsel for the Defendant F. Luwe, Official Interpreter R. Luhanga, Recording Officer and Court Reporter JUDGMENT Ligowe J, 1 This case involves a dispute over a piece of land situated at Luwinga in the City of Mzuzu. Unfortunately, the land has not been properly identified by the pleadings. It is important that pleadings should distinctly describe in a dispute over land, the land in issue, for purposes of proper identification. This court will rely on the fact that the parties know precisely the land that is in issue between them. 2 By an originating summons dated 23 rd June 2016, the plaintiff seeks this court to determine: (a) Whether or not the plaintiffs are the lawful owner of the plot situated at Luwinga in the City of Mzuzu. 2 (b) Whether or not the sale agreement of the said plot between the 1 st and 2 nd defendant was void as the 1 st defendant lacked title to pass. (c) Whether or not the 211d defendant's Conduct of starting preparatory construction works on the land amounts to trespass. (d) Whether or not the trespass violates the plaintiffs' right to property under section 28 of the Constitution. (e) Whether or not the plaintiffs are entitled to damages as a result of the trespass and infringement of their right to property. (f) Whether or not the plaintiffs should be awarded costs of the action. 3 On these questions the plaintiffs seek declarations that they are the lawful owners of the land, that the sale agreement was void, that the 2nd defendant trespassed, the trespass violates their right to property, the defendant should pay compensation and that they be condemned in costs. 4 The land in issue is situated within the bounds of the City of Mzuzu. The City is a planning area under the Town and Country Planning Act as shown by the Town and Country Planning (Mzuzu Planning Extension Area) Order, G6neral Notice No. 2 of 2010, made under section 29 of the Act. 2010 was the extension, but the City had been declared a planning area before. The Mzuzu Planning Area Order, General Notice No. 161 of 1 971 made under section 3 of the then Town and Country Planning Act bears witness. 5 The effect of a declaration of a Planning Area for purposes of a Local Physical Development Plan in respect of customary land is that the land is acquired by the Government as public land. Section 29 (2) of the Town and Country Planning Act states that: - C'Where a Planning Area is declared in respect of land which is or part of which is customary land, the minister may request the Minister responsible for land matters to declare that customary land to be public under section 27 of the Land Act.' 3 6 Section 27 of the Land Act, that time, gave power to the Minister responsible for lands to declare customary land needed for public purpose, public land under a notice published in the Gazette. Section 28 (2) of the Land Act provided that any person who suffered any disturbance, loss or damage to his interests in the land by reason of the declaration was entitled to compensation for such disturbance, loss or damage. Compensation was paid by the Government. 7 Ordinarily, the acquisition and compensation of the land would be done under the Lands Acquisition and Compensation Act. Section 3 of the Act provides that the Minister may acquire land for public utility either compulsorily or by agreement and pay compensation therefor as may be agreed or determined under the Act. Under section 5, the Minister issues a notice in the Gazette, inviting any person claiming interest in the land to which the notice relates, to submit particulars of his claim to the Minister within two months of the date of the publication of the notice in the Gazette. The same notice may under section 6, specify the period within which the person in possession of the land has to yield it up. It is upon the claim, that compensation is assessed and paid according to Part IIA of the Act. 8 It is therefore strange in the present case to hear from Pastor Joel Felix Moyo of the plaintiffs' church that he identified a piece of land at Luwinga and then approached the Regional Commissioner for Lands (North) to apply for it, and that the Commissioner referred him to reach compromise with the people in occupation of the land before he could be granted permission to apply for the plot. He ended up meeting a Mr Frank Singini who was then growing crops on the land and agreed and paid compensation to him and then reported to the Commissioner for Lands. After this, the Commissioner wrote the church confirming that the plot was available and could be formally allocated to them upon payment of development charges and related lèes within 90 days. 9 This should not be the process. After the land was acquired upon the declaration of the Mzuzu Planning Area, the land should have been available to be administered and allocated to people through the office of the Regional Commissioner for Lands. Frank Singini and Tryson Chinganganga Singini, the plaintiffs' witnesses in the case, stated during cross examination that the land belongs to Government and that people just asked to be 4 cultivating on-it. There is no proof for the assertion Counsel for the defendants makes in his final submissions that the ones who occupied the land had not been compensated at the time it was declared public land and that that is why the Regional Commissioner for Lands advised the plaintiffs to consult and compensate the ones who were using the land before he allocated the land to them. 10 The present case arose because, after the plaintiffs paid K25 900 towards the development charges and related fees for the plot, around I I June 2016, Pastor Joel Felix Moyo found Mr William Kaweche, the 2nd defendant clearing the land for use, and he claimed to have bought it from Sinya Singini, the I st defendant. Sinya Singini is related to Frank Singini and Frank Singini's position is that Sinya Singini has never used or occupied the plot. Hence the plaintiffs originating summons. I l Tryson Chinganganga Singini, Deputy Senior Block leader for Towera village, where the land is situated, swore an affidavit that he is related to Frank Singini as well as Sinya Singini. He háS been living in the location since he was born in 1949. Their ancestors settled on the land around 1939. The land was divided among the children. Frank Singini was allocated the piece that is in issue long ago, until the plaintiff acquired it. Sinya Singini's father was Tryson Chinganganga Singini's elder brother, but he had never stayed or cultivated on the land. 12 In his affidavit, Frank Singini states that he had been using the land in question since birth. He confirms agreeing with the plaintiffs to compensate him for standing crops on the land so it could be allocated to them by the Lands Department. This implicitly acknowledges that the Lands Department has power to allocate the land to lawful tenants. 13 Sinya Singini on the other hand states in his affidavit in opposition that the land in question is not in Tryson Chinganganga Singini's area but Bandawe village, and that Frank Singini has never cultivated on the land but Sinya Singini's father, George Bandawe Singini. George Bandawe Singini is actually the Village headman and he inherited the land from his father Michael Zoba Bandawe Singini. The plaintiffs therefore consulted and 5 compensated wrong people for the crops grown on the land. He further states that Ministry of Lands allocated the plaintiffs a plot which belongs to George Bandawe Singini. It is on the basis that the land belongs to his father, that the father instructed him to show it to the 2nd dëfendant. 14 George Bandawe Singini has also sworn an affidavit in which he states that he was born in 1939 and grew up on the land and continues to use the land in question for cultivation. His father Michael Zoba Bandawe Singini occupied and used the land since 1932 and he inherited it after his death in 1982. Frank Singini could therefore not have cultivated or occupied the same land. 15 Overton Towera Singini who is Village Headman Towera Singini has also sworn an affidavit in which he states that Frank Singini has never cultivated or occupied the piece of land in issue but George Bandawe Singini. 16 Frank Singini was cross examined by counsel for the defendants. He stated that Sinya Singini is his elder brother's son. He stated that if George Bandawe Singini ever used the land in issue, then may be, before he was born, because he (Frank Singini) started using it in 1995 after he got married. His father, who was brother to Michael Zoba Bandawe Singini, is the one who showed him the land to use with his wife and he grew potatoes, yams, sugar cane and guavas on it. George Bandawe Singini had not been using the same land but the land adjacent. 17 Pastor Joel Felix Moyo was also cross examined and he stated that when his church applied for a plot at the Ministry of Lands, they were told to look for a vacant plot at Luwinga. The church identified the plot in question in this case and at the time, they found Frank Singini in occupation. 18 It is clear from the evidence that the plot in issue is public land under the administration of the Commissioner for Lands (North). Neither Frank Singini nor Sinya Singini has any title in it to be able to transfer to any other person. The Singinis were only allowed to cultivate 6 on the land before the Commissioner administers it accordingly. I he plaintiffs derive good title to the plot having been perfectly allocated it by the Commissioner for Lands (North). Frank Singinior Sinya Singini has no claim whatsoever on the plot. The 2nd defendant also has no claim whatsoever to the plot in as far as he bought it from Sinya Singini. 19 It was only on •humanitarian grounds, in my view, that Ministry of Lands required the plaintiffs to consult and negotiate with the people using the land, considering that they had been allowed, before the plot was formerly allocated. Whoever was in occupation of the land should have yielded it to Ministry of Lands at the time the Mzuzu planning Area was declared. It was not lawful afterwards, to allow any one occupy the land otherwise than by way of formal allocation by the Commissioner for Lands. For that reason, this court cannot bother itself with determining the rights of use between Frank Singini and Sinya Singini. That would be embroidering the court into illegality. 20 Counsel for the defendants filed skeleton arguments in which he submits that Sinya Singini is a wrong party because the land in issue belongs to his father, George Bandawe Singini and he goes on to argue how George Bandawe Singini came to own the land. Counsel makes similar arguments in his final submissions. Pastor Joel Felix Moyo's evidence is however clear, that Mr William Kaweche, the one who was found clearing the land for use, claimed to have bought it from Sinya Singini. Nonetheless, the whole argument is on who has better rights over the land between Frank Singini and Sinya Singini, which this court has declined to delve into, considering the illegal manner the Singinis continued to occupy the land after declaration of the Mzuzu Planning Area. 21 The plaintiffs seek compensation for trespass to their land by the 211d defendant in clearing the land for his own use around I I th June 2016. The plaintiffs were on 24 th June 2016 granted an interlocutory injunction restraining the defendants by themselves, their servants, their agents and whomsoever acting on their behalf from dealing in any manner with the plot until the court determines the matter. The injunction was vacated on 2 nd July 2016, but no witness testified at the hearing that the 2nd Defendant continued to enter and do anything on the land. 7 22 Torts affecting land would be classified into two: wrongful damage to the land on one hand and wrongful occupation and user of the land on the other. Where it is a trespass involving wrongful damage to the land, the normal measure of damages is the amount of the diminution of the value of the land. See Jones v. Gooday (1841) M. & W. 146. Where the trespass consists of a mere user of the land by passing over it, the damages recoverable will be the price which a reasonable man would be willing to pay for the right of user. Where the land has been occupied wrongfully, the plaintiff is entitled to have as damages for the trespass the value ofthe property as it would fairly be calculated, that is the ordinary letting value. Per Megaw L. J.in Swordheath Properties Ltd. v. Tabet [1979] 1 All ER 240, 242. 23 The 2 nd Defendant's trespass in the present case is in the category of wrongful occupation and user of the land. If anything, the 2nd defendant trespassed fòr the period from around 1 I th June 2016 to when he was served with the interlocutory injunction of 24th June 2016. The period is too short in my view, to attract any meaningful letting value. 24 Besides, the record shows that the 2nd defendant has not had the opportunity to be heard by the court. The notice of appointment of legal practitioners filed by Messrs Chunga and Siadi on 8th July 2016 indicates them as representing Goth defendants, but they later only filed affidavits in opposition to the originating summons for the I st defendant and filed submissions and skeleton arguments only in respect of the 1 st defendant. 25 I will therefore not order damages for trespass to be paid, but declare the plaintiffs the lawful owners • of the plot, it having been duly allocated to them by the Regional Commissioner for Lands. Indeed the sale agreement between the I st and the 2nd defendants was void. The I st defendant could not have title to pass to anyone in the circumstances. These orders are in my view an effective remedy to the plaintiffs' claim in this case. 26 Their action succeeds with costs. 27 Made in open court this 7th day of January 2020. 8