Mwakayoka v Village headman Mwakafyuyu (Civil Cause 7 of 2017) [2018] MWHC 1310 (19 January 2018)

IN THE HIGH COURT OF MALAWI .. MZ1JZ1J-REQISTRY SITTING ATKARONGA __ _ CIVIL CAUSE NO. 7 OF 2017 Being Civil Cause No. 214 of2015 in the Second Grade Magistrate's Court at Ngerenge BETWEEN ROBSON H. MW AKA YOKA ............................................. APPELLANT AND . VILKGEHEADM7\:N MW~YUYU ......... ; . ; .;.~-; ;-;-;-;; ..... RESP8NBENT CORAM: Honourable Justice T. R. Ligowe Appellant (unrepresented) Respondent (um·epresented) F. Luwe, Official Interpreter R. Luhanga, Recording Officer and Court Reporter Ligowe J, . JUDGMENT There is a piece of land either in Mwakalapya village or Mawakafyuyu Village, TIA Kilupula in Karonga which has been in dispute between Mr Robson Mwakayoka and Watson Mwautwa. 2 Mr Robson Mwakayoka took Watson Mwautwa before Village Headman ___ ___ Mwakaliipya over this_ land._ His witness there was Village Headman Mwakafyuyu. Village Headman Mwakalapya ordered that the land belongs _______ to Mr Ro!Json Mw~l<~yoka ancI direc;_ted Wiitson Mwa11twa to appeal if he was not satisfied. Instead of appealing to a higher chief in rank, Mwautwa sued Village Headman Mwakalapya at Ngerenge Magistrate's Court in Civil Cause-No-;-28of2015. Village HeadmanMawakafyuyuseems to have given evidence in that comt which was not favourable to Mr Robson Mwakayoka. Mr Mwakayoka was not part of those proceedings. The Magistrate found in favour of Watson Mwautwa and ordered Village Headman Mwakalapya to give the land to him. After that case, Mr Robson Mwakayoka commenced action in the same court against Village Headman Mwakafyuyu, Civil Cause No. 214 of 2015, claiming the same land and accusing of siding with Watson Mwautwa in Civil Cause No. 28 of 2015. The comt ruled in against Mr Robson Mwakayoka in view of its judgment in Civil Cause No. 28 of 2015, Watson Mwautwa v. Village Headman Mwakalapya, that the land had already been ordered to belong to Watson Mwautwa. Now Mr Robson Mwakayoka appeals against that decision and his grounds are that it was wrong for the Magistrate to allow Village Headman Mwakafyuyu to testify against him in the case between Watson Mwautwa and Village Headman Mwakalapya as the same Village Headman had testified for him on the same issue before Village Headman Mwakalapya. That it was wrong for the Magistrate to find for Mwautwa as he did not consider that Mr Robson Mwakayoka had used the land for 18 years without any-disturbance-beforn-Watson-Mwautwa-came. ________ _ - -~-- -5 --- What·· is·-- clear from this appeal is-that-Mr Robsen-Mwakayoka needed:__to ____ _ have been a party in Civil Cause No. 28 of 2015, Watson Mwautwa v. Village Headman Mwakalapya, for the final and conclusive determination of the issues. He was an interested party to the proceedings as theland in issue was the one he was disputing with Watson Mwautwa. In view of this, I order stay of the decisions in that case and the present case before the Second Grade Magistrate at Ngerenge. I order retrial of the matter by the First Grade -~ _Mngi§trl.lte _at l(aronga, where Mr Robson Mwakayoka should be the ---- -- ----------- - - - - - - - -- - plaintiff and Watson Mwautwa tfieaefenaant-. -vtUage--Headmen------- Mwakalapya and Mwakafyuyu should be called as witnesses among any other witness that may be called. The retrial should be commenced within 30 days from today. Delivered in open court this 19th day of 2018 at Karonga. 3