Ngoma v Ngoma (Civil Appeal 14 of 2013) [2017] MWHC 125 (16 May 2017)

IN THE HIGH COURT OF MALA WI PRINCIPAL REGISTRY CIVIL APPEAL CAUSE NUMBER 14 OF 2013 BETWEEN: SL YVESTER J. L. NGO MA (As administrator of the Estate of Kaufulu Ngoma-deceased) APPELLANT AND BENSON NGOMA RESPONDENT CORAM: JUSTICE M. A. TEMBO, Lemucha, Counsel Respondent, Chanonga, present Official and unrepresented Court Interpreter for the appellant JUDGMENT This is this court's judgment following a hearing of the appeal in this matter. appeals The appellant at Ntchisi that the respondent's of the First-Grade by which the lower court found that the appellant the decision against Magistrate had grabbed and his siblings. Court sitting the land late father left for the respondent had commenced civil proceedings against the appellant The respondent lower court claiming which his late father he died. The land is located that he was entitled had acquired at Gonondo village. to use of the piece ofland in issue, and had been using since 1985 until 2000 when before the a garden, ;.., ,, .. , '··L>UR1 ! i-..... ... ___ r1 !-i IG· .. ---.. ....__ ' J' f. l..lBf.?,\oy i t -----...... O#._ .... ,..,..,..if' ""\q �.-- -, The appellant w as the brot her to the ged to his hat this land belon respondent's late father. The appel lant family and not t he respondent. claimed t The lower court heard the evidence favour of the respondent. of both parties and determined the matter in The evidence the land in dispute The respondent who was a teacher respondent's by the respondent was to the effect that his father and himself farmed from 1985 until the year 2000 when his father died. also stated that his late father had actually to acquire sent his younger the land herein. at Mpalo school At one time the brother father was a member of parliament. that it was his family land and not land for the respondent added that after his father's The respondent saying He added that his late father told him that the land in dispute and his siblings. that he allocated He also stated to his two sisters. that his late father bought two other pieces death the appellant took over the land and his siblings. was for the respondent of land There was evidence actually by the respondent who asked for a piece of land and was allocated he was approached by tpe retired that Gonondo who testified Village Headman brother father's the land in dispute herein. who was a teacher that the land in dispute Village Headman Gonondo was testifying The retired very categorical respondent brother hearing to the respondent's and is Mr Sylvester was allocated herein father. and not to the respondent's father was based at Zomba at the time J L Ngoma. by himself He added that this of the lower court but was to the brother father's for the respondent Village Retired father who was then based at Lilongwe land because father came to the disputed Headman Gonondo added that he did not know the respondent's the respondent's very well and that probably to his relation. it belonged The witnesses not belong for the appellant to the respondent's testified father but to the appellant. that actually the land in dispute did herein The lower court visited After hearing respondent at the disputed was very knowledgeable the land in dispute the parties land, the lower court noted that the It also found that the of the land boundaries. and found that the land was unoccupied. was not knowledgeable of the land boundaries or who was occupying this appellant land. circumstances, the lower court concluded possession In the foregoing father acquired the land in dispute by adverse of the same for a period of over 12 years in terms of section Act. that the respondent's after being in possession 6 of the Limitation that the respondent's father was a man of substance that the respondent's of Sylvester the land in dispute since he rose to be a member of parliament. acquired The lower court also observed who could acquire Further, the assistance the land as he never came to testify evidence who farmed the land from 1985 to the year 2000 when he died. the land in dispute with over Ngoma had no control before the lower court and there was no that he farmed the land in dispute Ngoma. And that Sylvester to the respondent's late father actually in contrast father Consequently, the lower court ordered that the appellant return the land to the respondent. The appellant filed thr ee grounds of appeal against the l ower court decision. The first ground of appeal is that the lower court erred by granting decision public or customary land. on the basis of adverse possession when the same is not applicable basing its to The second ground of appeal possession of adverse with the appellant's inconsistent herein. when the acts of the respondent's lawful enjoyment of his rights over the land late father were not is that the lower court erred in applying the principle The third ground of appeal was that the lower court erred when it totally disregarded the appellant's the evidence. and that its decision was against the weight of evidence This Court wishes to point out that on the hearing courts this Court has the following Act powers as provided of civil appeals in section from magistrate 22 of the Courts In a civil appeal the High Court shall have power- (a) to dismiss the appeal; (b) to reverse a j relimin udgment upon a p ary point and, on such reversal, to remit the case to the subordinate court against whose judgment the appeal is made, with directions to proceed to determine the case on its merits; ( c) to resettle and finally judgment court against on some ground other than that on which the High Court proceeds; of the subordinate which the appeal to determine issues a case, notwithstanding is made has proceeded that the wholly ( d) to call additional the subordinate is made, or any other subordinate court, court against whose to take additional or to direct evidence judgment the appeal evidence; ( e) to make any amendment or any consequential or incidental order that may be just and proper; (f) to confirm, reverse or vary the judgment against which the appeal is made; (g)to order that a judgment shall be set aside and a new trial be had; (h)to make such order as to costs in the High Court and in the subordinate court as may be just. is by way of rehearing. The appeal before the lower court to'a fresh scrutiny. that when sitting Court it should lower court had the advantage hand. as an appellate That means this Court will subject the evidence Of course, this Court is always mindful never lose sight of the fact that the of determining the credibility of the witnesses first This Court will deal with the three grounds of appeal in tum. The first ground of appeal favour of the respondent same is not applicable to customary land. in when the possession is that the lower court erred by making its decision on the basis of adverse its decision possession arises in section by reason 6 of the Limitation by any person of limitation Act. Section of actions for recovery 6 of the Limitation of land as Act provides shall be brought to recover years from the date on which the right of action any land after the expiration to him or, ifit first Adverse provided that no action of twelve accrued accrued to that person. to some person through whom he claims, Therefore, with the rights where a person occupies and possesses of the owner of the said land for a period of 12 years then the person land and uses it inconsistently to the said land and the owner of the land is barred from recovering the said gets title land. The appellant customary Malawi in terms argues that doctrine land as the said land vests in the President of the people of of adverse possession on behalf does not apply to of section 25 of the Land Act. alluded The appellant to the definition the Land Act which defines customary land. a particular area and not being public of customary land as provided in section land as land that is held at customary 2 of law of land and not customary The appellant contends that section 6 of the Limitation to private position although Act between private an action by a person there appears to be no distinction land and customary to recover any land. only applies land. This Court agrees that this is the correct Act essentially land where the Act refers to limitation of in section 6 of the Limitation Act as a whole reveals that the Act indeed only A close reading of the Limitation applies to private in the Limitation Act for any person the title of that person land because it says in section Act, at the expiration to bring an action to recover 16 that save as otherwise prescribed by the Limitation provided of the period land (including a redemption action) to the land shall be extinguished. The title to customary of Malawi as provided in section cannot of a holder of customary land. arise as provided under section land in Malawi vests in the President on behalf of the people 25 of the Land Act, as such, adverse 6 of the Limitation Act to extipguish possession the rights use of the land for over 12 years as the land was found to be customary 6 of the Limitation Act to find possession by adverse through land the lower court would not have as per section 39 (2)(a) of the Courts on section the land herein erred in relying The lower Court therefore that the respondent's father acquired continued land. In fact, if this land was found to be private had jurisdiction t Act. o deal with the dispute herein The first ground of appeal therefore succeeds. If anything, the lower court s possession exists at customary hould have checked whether t law of th e area in issue herein. he doctrine of adverse law of a particular at the relevant This Court takes this view being mindful that customary customary possession section the same is already Courts Act is clear on the point as it provides 64 of the Courts Act which requires proved in a binding the doctrine of proof as provided of adverse under where law except Section proof of customary land is held under law is a matter area. Whether of the High customary there exists decision as follows Court. 64 of the of customary If in any proceeding as a question admit the evidence well acquainted a matter of fact for purposes of experts with such law: of proof. and persons law is material, In determining whom the court considers such law shall be treated such law the court may to be likely that a court may judicially note any decisions of its own or of any superior determining the customary law applicable in a like case. Provided court, possession a\ customary circumstances, where there is no proof of existence of the doctrine at the law, the lower court erred in arriving on the basis of the land in dispute late father acquired that the respondent's In the foregoing of adverse decision the doctrine of adverse possession. The second ground of appeal possession of adverse with the appellant's inconsistent when the acts of the respondent's lawful enjoyment late father were not over the land herein. of his rights is that the lower court erred in applying the principle found that the doctrine of adverse Act is not applicable to customary possession as provided in land and that there is 6 of the Limitation This Court has already section no proof that Consequently, on the applicability Act. the Limitation such a doctrine the second ground of appeal of the doctrine exists under customary law of the area in issue. falls away automatically 6 of of adverse possession as provided in section as it is premised The third ground of appeal evidence the appellant's was that the lower court erred when it totally was against and that its decision the weight of the evidence. disregarded This last ground of appeal is supported decision calls for this Court to determine of the evidence whether in this matter. by the weight the lower court the evidence of the appellant against that of the respondent. The lower court weighed The lower court's appeared clueless as to the boundaries 9ne that retired Village being all�cated appellant moved the lower court not to believe version of events appellant. was completey clueless to the brother impression was that the appellant of the land in dispute. Headman Gonondo said was present when the land was This appellant when in the court below is the to the respondent's late father. The fact that the as to the boundaries of the land in dispute is what his of the namely village headman Gonondo and all the witnesses his story and that of those who supported by the appellant As such the contention appellant's appellant's allocation was clueless from the witnesses that the land belongs to Mr SJ L Ngoma and not the father could not be taken as credible when the witness to the land as to the land boundaries. that there was clear evidence was The lower court also noted that the person to whom the land in dispute allegedly Village Headman Gonondo, namely S J L Ngoma, never attended the proc by retired eedings. allocated Further, that t here was no evidence th at Mr SJ L Ngoma ever farmed t he land herein. In fact, the lower court observed the land since 1985 up to 2000 when the respondent's he died. The lower court then concluded respondent's Gonondo. that Mr S J L Ngoma never had any control over father farmed the land until the that Mr S J L Ngoma actually late father in getting the land herein from the Village Headman assisted circumstances, In the foregoing lower court which turned on an assessment this matter as detennined dispute in this matter. this Court cannot interfere with the findings in on a visit to the land in in court and also significantly of the credibility of the of the witnesses the appellant and his witnesses to be unreliable and the village in view of the failure of the headman The lower court assessed Gonondo and found their evidence appellant Ngoma had no control respondent's account. to explain the land boundaries. The lower court also found that Mr S J L over the land that was farmed for a long time by the late father. Mr SJ L Ngoma never appeared to give a contrary The findi and is accordingly upheld. ng of the lower cou rt was therefore not against t he weight of the evidence The appellant shall b ear costs on this appeal. Any one dissatisfied by this decisio preme Court of Appeal. n has a right to appeal to the Su Made in open cour t at Blantyre this 16th May 2017. 8