Sichone v Chilango and Another (Land Cause 44 of 2022) [2023] MWHCCiv 35 (26 June 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CIVIL DIVISION LAND CAUSE NUMBER 44 OF 2022 BEFORE HONOURABLE JUSTICE KONDOWE BETWEEN FRED SICHONE (SUING ON HIS OWN BEHALF AND THAT OF THE SICHONE AND BAD CHIDONG O, csccvereeenenepsseseser ieee Wainee nnneecenseeneneommensceresess 157 DEFENDANT WILSON CHILONGO. .cosncensnaeccevenssawawreyeennies Cie eeeNTCENS EEG ne nes 2NP DEFENDANT CORAM: HONOURABLE JUSTICE MAUREEN KONDOWE Mposi, Counsel for the Claimant Kambalame, Counsel for the Defendants Miss I. Mabaso, Senior Court Clerk RULING 1. BACKGROUND TO THIS RULING 1.1 By a specially-endorsed summons dated 9" June, 2022 the Claimant commenced this legal action against the Defendants. The Claimant who is legally represented by the Legal Aid Bureau did not indicate the authority of law on the basis of which he filed it before this court and subsequently served it on the Defendants as he alleged. Attached to this summons were a statement of case dated 23" May, 2022 and an undated and unsigned list of documents. The Claimant also filed and served a sworn statement also dated 23 May, 2022 which verified both the claim and the list of documents. 1.2 By an inter partes application for an interlocutory injunction dated 9" June, 2022 the Claimant sought an order of interlocutory injunction against the Defendants. The application did not state its grounds. It was brought before this court pursuant to Order 10 rule 27 of the Courts (High Court) (Civil Procedure) Rules, 2017 (“the 2017 Rules”). It was supported by a sworn statement dated 23 May, 2022 which the Claimant swore. APPLICATION SUPPORTING SWORN STATEMENT ALLEGATIONS 2.1 Paragraph 6 of the Application Supporting Sworn Statement alleged that the 1* Defendant allegedly came to Ngoya Village, Traditional Authority Mwabulambia in Chitipa in or about the year 1966 to allegedly look for a piece of land on which to allegedly settle. The 1°* Defendant allegedly struggled to find the sought piece of land. The alleged unnamed and allegedly deceased father of the Claimant allegedly then lent him part of his own alleged land. 2.2. Paragraphs 7 and 8 of the Application Supporting Sworn Statement alleged that the 1“ Defendant allegedly secured his own piece of land in 1970. He allegedly then gave back the alleged unnamed and allegedly deceased father of the Claimant the land he allegedly got lent by him. The alleged land of the Claimant and that of the 1™ Defendant allegedly adjoins each other with alleged clear demarcations whose nature was not particularized. 2.3 Paragraphs 9 and 10 of the Application Supporting Sworn Statement alleged that after the Claimant allegedly married in allegedly 1986 his alleged unnamed and allegedly deceased father gave him an alleged portion of land for him to allegedly build a house on within the alleged piece of land that his alleged unnamed and allegedly deceased father allegedly occupied. The Claimant allegedly built his alleged matrimonial home on this alleged piece of land so allegedly did his own alleged 2 unnamed siblings after they also allegedly got married. There are currently allegedly three alleged houses on this alleged piece of land that allegedly belong to the Claimant and his alleged unnamed siblings. 2.4 Paragraphs 11, 12 and 13 of the Application Supporting Sworn Statement alleged that the Claimant and the 1*' Defendant allegedly lived in harmony until allegedly 2008 when the 1* Defendant allegedly encroached into the alleged family land that the Claimant allegedly occupies. The Claimant allegedly lodged a complaint about this alleged encroachment before Senior Group Village Head Mwakabanga who allegedly heard both parties and allegedly handed down a ruling allegedly in favour of the Claimant. The 1% Defendant allegedly appealed against this judgment to the District Commissioner for Chitipa who allegedly upheld the decision that Senior Group Village Headman Mwakabanga allegedly made. 2.5 Paragraphs 14 and 15 of the Application Supporting Sworn Statement alleged that in or about the year 2012 the 2"? Defendant who is the alleged son of the 1 Defendant allegedly also trespassed into the alleged land of the Claimant and allegedly cultivated on it. The Claimant allegedly summoned the 1‘t Defendant again before Senior Group Village Headman Mwakabanga who allegedly did not resolve the matter. 2.6 Paragraphs 16 and 17 of the Application Supporting Sworn Statement alleged that in or about the month of February, 2021 the 2? Defendant allegedly entered the land of the Claimant allegedly without his permission once again and allegedly demolished a house for the Claimant which was allegedly under construction. The 2"? Defendant allegedly claimed that the Claimant and his family were allegedly encroaching into the alleged land of the 1“! Defendant. 2.7 Paragraph 18 of the Application Supporting Sworm Statement alleged that all efforts to have this matter allegedly resolved by Traditional Leaders in the area have allegedly proven futile. There are allegedly no land tribunals or customary land dispute resolution mechanisms in Chitipa for the Claimant to take this complaint to. This is the alleged basis on which the Claimant allegedly urges this court to resolve this matter. 2.8 Paragraphs 19 and 20 of the Application Supporting Sworn Statement alleged that the alleged actions of the Defendants are allegedly tantamount to arbitral deprivation of the alleged rights of the Claimant to own and use the alleged disputed land or indeed property. The Defendants will allegedly not stop trespassing into the alleged a land of the Claimant unless an order of injunction is granted by this court. This order of injunction will allegedly protect the alleged rights in land of the Claimant and those of his alleged family. 3 APPLICATION OPPOSING SWORN STATEMENT ALLEGATIONS 3.1 The Defendants opposed the application for the order of interlocutory injunction the Claimant sought from this court. They filed an Application Opposing Sworn Statement dated 21% April, 2023. The 2" Defendant swore this Application Opposing Sworn Statement. This Application Opposing Sworn Statement alleged the following matters against the Claimant: 3.1.1 Paragraph 4 of the Application Opposing Sworn Statement alleged that it is allegedly not true that the 1* Defendant allegedly came to Ngoya Village, Traditional Authority Mwabulambia in Chitipa allegedly in 1966. The 1* Defendant whom the deponent admits to be his alleged father allegedly came to Ngoya Village in allegedly 1940. Mr Gift Sichone the alleged father of the Claimant allegedly came to the same alleged village later in allegedly 1944. 3.1.2 Paragraphs 5 and 6 of the Application Opposing Sworn Statement alleged that Village Headman David Mwakabanga allegedly gave the 1 Defendant a piece of land first. He allegedly subsequently also gave a piece of land to the Claimant which was allegedly close to that of the I*' Defendant allegedly separated by some distance between them. 3.1.3 Paragraph 7 of the Application Opposing Sworn Statement admitted that there was a dispute over this alleged piece of land among these disputing parties in the year 2008 before Senior Group Village Headman Mwakabanga who allegedly ruled it in favour of the Defendants. 3.1.4 Paragraph 8 of the Application Opposing Sworn Statement denied that the 2™ Defendant has allegedly encroached into the alleged land of the Claimant and his alleged family. It is allegedly the Claimant who has allegedly moved from his designated piece of land and allegedly claimed rights over the alleged land of the Defendants. 3.1.5 Paragraphs 9 and 10 of the Application Opposing Sworn Statement alleged that Sub Traditional Authority Mwakabanga allegedly already passed a judgment over 4 this matter and allegedly ruled allegedly in 2020 that the disputed piece of land allegedly belongs to the Defendants. This alleged judgment was allegedly passed after Mr Zyambe Nyondo a third party to the present proceedings began encroaching on the disputed piece of land. Sub Traditional Authority Mwakabanga allegedly traced the history of the alleged disputes over this piece of land and allegedly ruled in reference to the alleged judgment that he had already given that the disputed land allegedly belonged to the Defendants. 3.1.6 Paragraphs 11 and 13 of the Application Opposing Sworn Statement alleged that in alleged dishonour of the 2008 judgment and the one that postdated it the Claimant allegedly continued to encroach into the alleged land of the Defendants and subsequently commenced this legal action. The 2008 judgment allegedly resolved this dispute among the Claimant and the Defendants. The Claimant allegedly commenced this legal action in 2022 14 years after the 2008 judgment. 3.1.7 Paragraph 14 of the Application Opposing Sworn Statement alleged that the commencement of this legal action and the present application is allegedly ill conceived and allegedly an abuse of the process of this court looking at the period that it has allegedly taken the Claimant to bring this action and allegedly also considering that the alleged land of the Claimant is not at all encroached. 3.1.8 Paragraph 16 of the Application Opposing Sworn Statement alleged that to the knowledge of the 2™! Defendant the Claimant has allegedly sold most of his alleged land and is now allegedly claiming that the alleged land of the Defendants allegedly belongs to him due to that he allegedly no longer has a place to allegedly cultivate. 3.1.9 Paragraph 17 of the Application Opposing Sworn Statement alleged that it is allegedly not true that the 2™ Defendant allegedly demolished a house for the Claimant. The Claimant has allegedly not produced any evidence to allegedly substantiate this claim. The 2" Defendant is allegedly also sure that if this were true he would have been arrested as such conduct would have amounted to a criminal offence. The Claimant is allegedly not being truthful. 3.1.10 Paragraph 18 of the Application Opposing Sworn Statement alleged that the Claimant allegedly commenced this legal action with alleged misleading facts so 5 he can allegedly claim alleged ownership of land that he allegedly knows is allegedly not his. 3.1.11 Paragraphs 19 and 20 of the Application Opposing Sworn Statement alleged 3. — that the Claimant has allegedly not stated the particulars of the alleged illegal action that the 2"4 Defendant has allegedly done on any part of his alleged land to warrant the alleged reliefs that he alleges he seeks from this court. The Claimant has also allegedly not demonstrated how any alleged actions or conduct of the 2™ Defendant has allegedly usurped any alleged proprietary rights in alleged land that he allegedly alleges he has. .12 Paragraphs 21, 22 and 23 of the Application Opposing Sworn Statement alleged that there is no serious question for this court to allegedly try with regard to the questions whether it is the Claimant or the Defendants who have alleged property rights over the alleged land in issue and also whether or not there is any justification for the Defendants to use the land in dispute. The alleged judgment ‘that Sub Traditional Authority Mwakabanga allegedly handed down allegedly already resolved this dispute in favour of the Defendants. The Claimant has also allegedly not demonstrated in any way that damages would not be an adequate remedy if he succeeded in this matter. There is allegedly no status quo to preserve that this application allegedly warrants. It is against this background that the Defendants allegedly take the view that this application lacks basis. It is allegedly an abuse of the process of this court and a waste of its time. The Claimant allegedly has no proper justification on the alleged basis of which this court should allegedly grant him the sought order of interlocutory injunction. The application for this order that the Claimant brought before this court must allegedly therefore be dismissed with costs. THE EVIDENCE 4.1 The Claimant produced and exhibited no documents of evidence in his Application Supporting Sworn Statement dated 23™ May, 2022. He also did not produce and exhibit any documents of evidence in his undated and unsigned list of documents. 4.2 The Defendants produced and exhibited a judgment dated 7" September, 2020 that Sub Traditional Authority Mwakabanga delivered over this disputed land marked 6 “WC1” in their Application Opposing Sworn Statement dated 21* April, 2023. They also produced and exhibited this same judgment in their list of documents dated 28" July, 2022. , THE LAW ON THE GRANT OF ORDERS OF INTERLOCUTORY INJUNCTION 5.1 Order 10 Rule 27 of the 2017 Rules deals with applications for orders of interlocutory injunction. A court may grant an injunction by an interlocutory order in specific circumstances. These circumstances include where it appears to the court that, (a) there is a serious question to be tried; (b) damages may not be an adequate remedy, and (c) it is just to do so. A court can grant this order either unconditionally or on such terms and conditions as it considers just. 5.2 Order 10 Rule | of the 2017 Rules states that a party may apply during a proceeding for an interlocutory order of the court by filing an application in a proceeding in Form 4. OTHER LAWS OF RELEVANCE TO THIS APPLICATION 6.1 UNDER THE CUSTOMARY LAND ACT, 2016 6.1.1 The Customary Land Act, 2016 became effective law on 1* March, 2018. Section 5(1) of the Customary Land Act, 2016 established Customary Land Committees at Group Village Headman level in Traditional Land Management Areas. Section 2 of the Land Act [Cap. 57:01 of the Laws of Malawi| defines a Traditional Land Management Area as an area demarcated and registered as falling within the jurisdiction of a Traditional Authority. Section 2 of the Land (Amendment) Act, 2022 [No. 5 of 2022] (“the Land (Amendment) Act, 2022”) has redefined a Traditional Land Management Area as customary land demarcated and held by a Traditional Authority on trust for the residents under their jurisdiction. In terms of section 5(2)(a) of the Customary Land Act, 2016 a Group Village Headman is the Chairperson of a Customary Land Committee. Section 2 of the Land Act defines customary land as land that is used for the benefit of a community as a whole and includes an unallocated customary land within the boundaries of a Traditional Land Management Area. Section 2 of the Land (Amendment) Act, 2022 has redefined customary land as land that is held, occupied and used in accordance with customary law. 6.1.2 Under section 6(1) of the Customary Land Act, 2016 a Customary Land Committee has management rights over customary land that is within its area of jurisdiction on trust as if the committee were a trustee of and the residents in the area were beneficiaries under a trust of the customary land. Section 3(a) of the Customary Land (Amendment) Act, 2022 has maintained this position of the law and extended it by requiring Land Committees and Traditional Authorities to manage customary land which they have jurisdiction over in line with prevailing customary laws. 6.1.3 Section 44(1) of the Customary Land Act, 2016 established Customary Land Tribunals in every Traditional Land Management Area whose mandate is to adjudicate on disputes which concern customary land in an area. 6.1.4 Section 44(2) of the Customary Land Act, 2016 states that a Customary Land Tribunal comprises: (a) A Traditional Authority for the area who is its Chairperson; and (b) Six communal members whom the Traditional Authority nominates and are approved by the Commissioner for Lands. Equal representation by gender in such a tribunal is ideal but at the minimum three women must be members. Section 20 of the Customary Land (Amendment) Act, 2022 has changed this position of the law by substituting the Commissioner for Lands with a District Commissioner. 6.1.5 Section 45 of the Customary Land Act, 2016 allows any person who is aggrieved by any decision of a Customary Land Tribunal to appeal to a District Land Tribunal established under section 46(1) of this Act. District Land Tribunals comprise the following members: (a) A District Commissioner who is its chairperson. Section 21 of the Customary Land (Amendment) Act, 2022 has substituted District Commissioner in this provision with a presiding Chairperson who must be the most senior Traditional Authority of a District; (b) Up to three Traditional Authorities: {c) Three persons of good reputation who come from and reside in the area, two of whom must be women. Section 21 of the Customary Land (Amendment) Act, 2022 has also amended this provision by deleting it so these persons are substituted by a Resident Magistrate; and (d) A District Land Registrar who acts as the Secretary for the tribunal. 6.1.6 Section 46(2) of the Customary Land Act, 2016 states that members of a District Land Tribunal are approved by a Local Government Authority which is responsible for the district. 6.1.7 Section 47 of the Customary Land Act, 2016 states that an appeal from a District Land Tribunal lies to the Central Land Board. Section 48(1) of this Act states that this Board comprises the following: (a) A Resident Magistrate who presides over its proceedings. Section 22 of the Customary Land (Amendment) Act, 2022 has substituted a Resident Magistrate with a presiding Chairperson who must be a Paramount Chief; (b) Three Traditional Authorities, one each from a region of Malawi, one of whom must be a woman; (c) Two other members of good standing in society one of whom must be a woman. Section 22 of the Customary Land (Amendment) Act, 2022 has substituted these persons with a Chief Resident Magistrate. 6.1.8 Section 49(5) of the Customary Land Act, 2016 states that a land tribunal can decide a customary land dispute in cases in which the parties to it fail to agree on how best to resolve their dispute with its advice to any aggrieved party of their right to appeal to a higher dispute settlement tribunal within the context of the Customary Land Act, 2016 and now in addition to this Act the Customary Land (Amendment) Act, 2022 or to this court as the case may be. 6.2 UNDER THE LAND ACT [CAP. 57:01 OF THE LAWS OF MALAWI] 6.2.1 Section 7(1) of the Land Act categorizes land into public and private categories. 6.2.2 Section 7(2) of the Land Act classifies public land into Government land or unallocated customary land. 6.2.3 Section 7(3) of the Land Act classifies private land as freehold, leasehold or customary estate. Section 4 of the Land (Amendment) Act, 2022 has deleted these provisions and replaced them with a new section 7 which categorizes land as public, customary and private. 6.2.4 Section 9 of the Land Act prohibits the allocation or grant of freehold land to any person. 6.2.5 Section 21(1) of the Land Act allows the Minister responsible for land to grant or allocate a leasehold or customary estate to any person who applies for the grant or allocation in the prescribed manner on such terms and conditions as the Minister considers appropriate. 6.2.6 Section 49 of the Land Act states that where in relation to any land transaction a person who is party to such a transaction is required whether as a matter of law, procedure or practice to disclose their citizenship to the Minister responsible for jand and claims to be a citizen of Malawi they must furnish to the Minister evidence of proof of their Malawi citizenship in accordance with the Malawi Citizenship Act [Cap. 15:01 of the Laws of Malawi] or other applicable law of this country. 6.3 UNDER THE NATIONAL REGISTRATION ACT [CAP. 24:01 OF THE LAWS OF MALAWI 6.3.1 The National Registration Act [Cap. 24:01 of the Laws of Malawi] became operational on 1* August, 2015. Section 3 of this Act established a National Registration System. It states that the National Registration System consists of a Population Register. 6.3.2 Section 4 of this Act provides for the appointment of a Director and Deputy Director for National Registration by the responsible Minister. 6.3.3 Section 7(1)(a) of this Act mandates the Director for National Registration to keep or cause to be kept and maintained a national register of all persons who are citizens of this country above the age of 16 years. Section 7(1)(b) of this Act allows the Director for National Registration to include in the national register that he keeps and maintains or causes to be kept and maintained all persons who are of or above the age of 16 years who while they are not citizens of this country have been granted 10 permanent residence, temporary employment or business permits to reside here under the Immigration Act [Cap. 15:03 of the Laws of Malawi]. 6.3.4 Section 8 of the National Registration Act spells out the particulars of registration that the Director for National Registration records in the national register dependent on whether they are for a Malawian or a non-Malawian citizen. 6.3.5 Section 13(1) of this Act allows the Director for National Registration to issue an identity card to every person registered under this Act. An identity card issued under this Act is prima facie proof of the particulars of an individual that the national register contains under section 17 of this Act. Regulation 12 of the National Registration Regulations allows the Director for National Registration to issue an identity card after receipt of an application for registration in the national register in the prescribed form and manner. Form NR4 contained in the Schedule to the Act is a depiction of the national identity card for Malawian citizens while Form NR5 contained in the same Schedule is the depiction of an identity card for non-Malawian citizens. In terms of Regulation 19 of the National Registration Regulations Form NR7 is a depiction of the national register that the Director for National Registration keeps and maintains or causes to be kept and maintained. 6.3.6 Regulations 51(1)(a) through (k), 52(1)(a) through (p), 53(a) through (b), 54(1)(a) through (0)(i)(ii) and 54(2) of this Act elaborately outline the respective functions of the Director for National Registration, District Registrars or authorized persons, Traditional Authorities, Village Headmen and Group Village Headmen and again Group Village Headmen. 6.3.7 All citizens of Malawi were required pursuant to Regulation 59(1) of the National Registration Regulations to comply with the requirements for registration in the national register within 3 years of these Regulations coming into force. 6.4 UNDER THE DECEASED ESTATES (WILLS, INHERITANCE AND PROTECTION) ACT [CAP. 10:02 OF THE LAWS OF MALAWI] 6.4.1 Section 4 of the Deceased Estates (Wills, Inheritance and Protection) Act [Cap. 10:02 of the Laws of Malawi] (“DEWIPA”) states that except as provided for in this Act, no person is entitled under any other written law or under customary law to take 11 by inheritance any of the property to which a deceased person was entitled at the date of their death. 6.4.2 A personal representative of a deceased person has the legal capacity to deal with the estate of a deceased person. Section 3 of DEWIPA states that a personal representative includes an administrator/administratrix and an executor/executrix. 6.4.3 Under Section 20(1) of DEWIPA the High Court has the respective jurisdiction over all probate matters and the administration of estates of deceased persons. It has power to grant probates of valid wills and letters of administration where a deceased person died without leaving a valid will. 6.4.4 Section 20(3) of DEWIPA grants Resident or First Grade Magistrates jurisdiction to grant probates of valid wills or letters of administration over intestate property of a deceased person where the estate is small. Section 3(1) of DEWIPA is clear that a small estate is one whose value does not exceed K1, 000, 000.00. The value of the property comprised in a small estate must be K1, 000, 000.00 without any deductions for debts being made. 6.4.5 Section 33(1) of DEWIPA states that probate ts only granted to an executor/executrix that a will appoints. 6.4.6 Section 43(1) of DEWIPA states that where a deceased person dies intestate, letters of administration for their estate may be granted to any person, who, under section 17 of this Act, would be entitled to the whole or part of the estate of the deceased. 6.4.7 Section 50 of DEWIPA states that subject to all limitations and exceptions in them, letters of administration entitle the administrator/administratrix to all rights that belonged to the deceased person as if they had been granted at the moment of their death. 6.4.8 Section 50(2)(a) of DEWIPA further states that probate and letters of administration have effect over all the inheritable property of a deceased person throughout this country and are conclusive against all persons holding any inheritable property of a deceased person. DETERMINATION OF THE APPLICATION OF THE CLAIMANT 7.1 Through his inter partes application for an order of interlocutory injunction dated 9" June, 2022 the Claimant sought this order against the Defendants. This application called upon this court to decide whether or not this order of interlocutory injunction 12 should be granted to the Claimant against the Defendants. The Claimant filed skeleton arguments dated 23 May, 2022. Those filed by the Defendants are dated 21°' April, 2023. 7.2 This court declines to grant the Claimant the order of interlocutory injunction he sought against the Defendants on the ground that follows: 7.2.1 The jurisdiction of this court over customary land disputes is appellate. It is so ordered. This is clear from section 49 of the Customary Land Act, 2016 read together with Regulation 76 of the Customary Land Regulations, 2018. It is so ordered. Section 49 of the Customary Land Act, 2016 states that a land tribunal can decide a customary land dispute in cases in which the parties to it fail to agree on how best to resolve their dispute with its advice to any aggrieved party of their right to appeal to a higher dispute settlement tribunal or to this court as the case may be. Regulation 76 of the Customary Land Regulations, 2018 states that any person who is aggrieved by a decision of a Central Land Board may appeal to this court on a point of law within 30 days from the date of the determination of the Board; and 7.3 This dispute raises an important question of law that relates to how decisions that Traditional Authorities make over customary land disputes are to be enforced within the framework of the currently-applicable Customary Land Act, 2016 as amended by the Customary Land (Amendment) Act 2022. This court notes that the currently- prevailing laws through which customary land disputes are resolved and will continue to be so resolved are totally silent on this important decisions-enforcement issue. This is a matter that requires some urgent rethink so for instance a provision similar to that contained in section 50 of the Workers’ Compensation Act [Cap. 55:03 of the Laws of Malawi] is inserted into the Customary Land Act, 2016. It is so observed. Section 50 of the Workers’ Compensation Act states that any determination or order that the Workers’ Compensation Commissioner makes or grants can be enforced before a Chief Resident Magistrate as if they were handed down by this court regardless of the value involved. This court reiterates that given its appellate court jurisdiction over customary land disputes in line with section 49 of the Customary Land Act, 2016 read together with Regulation 76 of the Customary Land Regulations, 2018 it has no business dealing with this claim at first instance in order to grant first instance court remedies such as the order of interlocutory injunction that the Claimant sought. It is so ordered. 13 7.4 This court has declined to grant the Claimant the order of interlocutory injunction that he sought against the Defendants for the reason stated in this ruling. This court therefore dismisses the application that the Claimant made for this order. It is so ordered. Owing to the finding of this court that its jurisdiction over the resolution of customary land disputes is appellate pursuant to section 49 of the Customary Land Act, 2016 read together with Regulation 76 of the Customary Land Regulations, 2018 this court also dismisses the legal action within the context of which the Claimant brought the dismissed application for an order of interlocutory injunction. It is so ordered. This court is keenly aware that section 108(1) of the 1994 Constitution of the Republic of Malawi (“the Constitution”) gives this court unlimited original jurisdiction to hear and determine any civil proceedings under any law. This court is also keenly aware of the fierce debate concerning the question of law whether or not this constitutional provision is a legal basis on which this court can disregard its statutory appellate jurisdiction over customary land disputes that section 49 of the Customary Land Act, 2016 read together with Regulation 76 of the Customary Land Regulations, 2018 categorically provides for. It is the considered opinion of this court that a correct answer to this contentious question of law out to be in the negative. It is so ordered. This court takes judicial notice of the fact that the Customary Land Act, 2016 as amended by the Customary Land (Amendment) Act, 2022 is a statutory framework within which Parliament decided that customary land disputes must be resolved. Section 5(a) of the Customary Land (Amendment) Act, 2022 stresses that Land Committees and Traditional Authorities must manage customary land over which they have jurisdiction in line with prevailing customary laws. Furthermore, this court observes that section 47 of the Customary Land Act, 2016 states that an appeal from a District Land Tribunal lies to a Central Land Board which section 48(1) of the Customary Land Act, 2016 established. Regulation 75 of the Customary Land Regulations, 2018 further states that the determination of a Central Land Board is final on any issue of fact and no appeal therefore lies to this court over any factual allegations that arise in any customary land dispute. These provisions of law are the legal basis on which this court forms the final judicial opinion that the enactment of the Customary Land Act, 2016 was intended by Parliament to ensure that traditional authorities who are not only the ordinary custodians but sometimes also the experts in some cases or would actually know and 14 use some experts in any prevailing customary law that affects any customary land that they have jurisdiction over are best placed to resolve customary land disputes at first instance. Customary Land Committees that section 5(1) of the Customary Land Act, 2016 established are at Group Village Headman level. Section 2 of the Chiefs Act [Cap. 22:03 of the Laws of Malawi] defines a Group Village Headman as a person who is appointed pursuant to section 9 of this Act and who holds this office as such, Section 9(1) of this Act states that a Chief defined in section 2 of this same Act as a person who holds or acts in this office appoints Group Village Headmen to assist them in carrying out their functions. Section 9(2) of this Act crystal clearly spells out the functions of Group Village Headmen. It states among others that the functions of Group Village Headmen are to assist a Chief or Sub-Chief who appoints them in the performance of their functions. 7.5 Section 30 of the Courts Act [Cap. 3:02 of the Laws of Malawi] states that costs of court proceedings are in the discretion of a court. Order 31 rule 1(a)(b) and (c) of the 2017 Rules amplifies this issue. Order 31 rule 3(1)(a) of the 2017 Rules states that this court has discretion as regards whether or not costs must be paid by one party to another. Order 31 rule 3(1\(b) of the 2017 Rules states that this court has discretion to decide the amount of any payable costs. Order 31 rule 3(1)(c) of the 2017 Rules states that this court has discretion to decide when costs must be paid. Order 31 rule 3(2) of the 2017 Rules states that where this court decides that costs must be paid an unsuccessful party is ordered to pay the costs of a successful party. The Defendants urged this court to dismiss the application that the Claimant made for an order of interlocutory injunction with costs. This court notes that the Claimant was legally- aided for him to commence this application against the Defendants. Section 42 of the Legal Aid Act [Cap. 4:01 of the Laws of Malawi] states that notwithstanding any other written law this court cannot award costs against a Jegally-aided person. This court exercises its discretion on costs to make no order for costs. It is so ordered. THE RIGHT OF THE CLAIMANT TO APPEAL AGAINST THIS RULING 8.1 The Claimant has a right to appeal against this ruling pursuant to section 21 of the Supreme Court of Appeal Act [Cap. 3:01 of the Laws of Malawi]. This provision states that an appeal lies to the Supreme Court of Appeal from any judgment of the High Court or Judge in any civil cause or matter. This court declines to grant the 15 Claimant leave to appeal to the Supreme Court of Appeal. It is so ordered. This court thoughtfully considers that the Claimant having incurably irregularly brought this claim before this court based on its first instance and not its appellate jurisdiction in compliance with section 49 of the Customary Land Act, 2016 read together with Regulation 76 of the Customary Land Regulations, 2018 the question whether or not the Claimant has a right of appeal in the circumstances of this dispute over this decision to this higher Court must be answered in the negative. It is so ordered. Delivered at Mzuzu this ..................222005 DE OF secscoscereg etal ean apminnnereneneres tee PRET, 2023 RAS annry M. KONDOWE JUDGE 16