Tembo v GVH Mseteza, Matsukwa and Sitima (Land Cause 11 of 2022) [2022] MWHC 158 (29 March 2022)

Juma Tembo v. GVH Mseteza & 2 Others . - Kenyatta Nytrenda, J. JUDICIARY” wo ER a . IN THE HIGH COURT. OF. MALAWL , * LILONGWE DISTRICT REGISTRY (CIVIL DIVISION) — _ LAND CAUSE NO. 11 OF 2022 (Before Honourable Justice Kenyatta Nym enda) | BETWEEN JUMA TEMBO cssesssstsstueentenstnnes ieee ceteciessessn been ecbue CLAIMANT AND GVH MSETEZA vissssssessseuesssssssseescivmnenasssteseeressse 1 DEFENDANT KASUNGENI MATSUKWA sesstntsesseeeesne 2 DEFENDANT OTITI SITIMA ee DEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. Thindwa, Counsel forthe Claimant . - Mr. Chiwaya, Counsel for the Defendants: * - My. Henry Kachingwe, Court Clerk - RULING | Kenyatta Nyirenda, J. - This is my Ruling on an inter-partes 5 application by. the Claimant: for an order of interlocutory injunction restraming the Defendants from dealing with’or cultivating on the Claimant’s land situated at Mseteza Village in Lilongwe District. The application is supported by the following statement, sworn by the Claimant: "3. THAT I and my 12 siblings inherited land from our ur father being roughly £0 acres in size situated at Mseteza Village t in Lilongwe We. 4, THAT the land was allocated fo our father by his Unele in 1961 on which he farmed on till his death in 2004. Juma Tembo v. GVH Mseteza & 2 Others . : . Kenyatta Nyirenda, J. 10. il. 22. 23, 14. £5. 16. £7. THAT my father’s siblings being the Defendants herein, were also allocated plots of land by the same Unele fo work. on as farm land. THAT in the time that their father was alive (57 year rs), my ) siblings and I helped our father work on the farm with no help whatsoever from the Defendanis. THAT upon my father’s death, his siblings star fed wor hing on the land to our . exclust jon in addition to the land that they were initially allocated. - THAT we planted trees on the land i ut or about 1980 bit the Defendants have been cutting them down haphazar dly. . THAT we took their grievances to Traditional Authority Miema who summoned the Defendants in efforts fo have the land handed backious. THAT at ihe meeting, the Defendants admitted that we were indeed entitled to the land and gave. the impression that they would give return owner rship back to us. THAT after the meeting however, the Defendants only gave us 17 lines to till instead of the whole farm itself and upon our refusal of the lines, stated that they will not give up the whole land. oe s | THAT all my efforts. to recover the land fr on the Defendanis have. proved to be futile. THAT the Defendants are now wor ring oi the land for ‘the 2021/2022 farming season. ' THAT my. siblings and Lon the other fana do not have any land to farm ¢ on jor food for the upcoming year, THAT if not stopped the Defendant will: continue. orkins on the land as they . please and cause further detriment to my siblings andl. THAT I believe that the Court should restrain the Defendants or their agents or “servants from using the land, cultivating, er ecting or building, selling or disposing of the land situated at Mseteza Village in Lilongwe. WHEREFORE, the Claimant prays for an interlocutory injunction restraining the Defendant by its servants, agents or whonisoever from ‘selling, cultivating, buildingyer ecting, disposing of the, Claimant. Ss land.” The Defendants are opposed to application and they rely ‘on a sworn statement by the L*' Defendant which states as follows: “3. THAT I and the other Defendants have read the. SWOFH. - stcitement of the Claimant in support of the application for injunction, and. we: wish to oppose to the same on the groupeds set out her ein n below. | Juma Tembo v. GVH Mseteza & 2 Others : a. _ Kenyatta Nyirenda, J. Lack of capacity to SUE 4. THAT the Claimant brings the action on. in behalf of himself and his unnamed 12 siblings over a piece of land situated within my jurisdiction, purportedly inhérited from their father. 5. * THAT from the Claimant's own pleadings, the land if issite 8 oight to-be treated as deceased estate and the Claimant has nol produced any authority (in form of letters ‘of advhinistration) authorizing hinv to manage the deceased estate and represent the other said siblings. Se 7 oo History ofthe land 6. -. THAT the Jamel i in issue was never allocated to the c lanmant’s- father as alleged. 7. THAT the Claimant’ S + father ¥ was staying athis father’ Ss village (Dongolosi Village) within Traditional Authority. Mtema in Lilongwe together with the Claimant until he was chased to go back to his mother ’S village (Mseteza village) in the said 1961, 8. THAT when the Claimant's father returned to my ared, he was told that all the land was already allocated his azilongo. per the Chewa culture who were already cultivating on i. , 9. THAT the Claimant's father requested, jor temporary allocation of the land whilst he was looking for another land where he was to settle andeultivate with his family. 10. 7 HAT the. land in dis pute was thus given to the Claimant’ 8 father on this temporal arrangement and the Claimant's father had been acknowledging this fact. during his entire life. il. THAT in the year 1990, the Claimant’ Ss father proceeded io buy a piece of land at Mnthanjwe village, Tr aditional Authority Malengachazi in Nkhotakota District and _ the Claimant moved io this land i it ihe: same ¢ yea: 12. THAT we have always known the Claimant to be in Nkhotakota and on the said land which was purchased by his father ‘until last year, 2021 when we heard that he was in Dower at his mother’s village. ate 13. THAT from the Claimant own sworn statement, he has confirmed being currently residing at Chizewe M illage, Traditional Authority Kayembe in Dowa District. 14. THAT we have further been infor med that the Claimant unilaterally disposed of the land in Nkhotakota and this is an attempt to get himself l land which his father never owned, Juma Tembo v. GVH Mseteza & 2 Others , / . Kenyatta Nyirenda, J. Maintaining status quo 15, THAF the Claimant's father remained in the village after purchasing the land in Nkhotakota and the Claimant moving there and he was allowed to continue usmg the land on ari understanding that the same shall immediately be returned when children of his azilongo are able and in need of it... - 16. THAT after his death in 2004, I duly allocated the.lund to. the rightful members of -. the family.and myself and other two (2) nained Defendants never got a piece of land. a oo : £7. THAT those who were allocated the land have been cultivating it since 2004 and without any disturbances until the return of the Claimant in 2021. 18. THAT currently, the land was fully cultivated and lar gely pl anted with maize which is about flowering. SO “ 19. THAT eranting the injunction béing sought herein will in no way be maintaining the status quo but bring inconvenience and irreparable loss to the current users of the tand.”” 7! : An interlocutory injunction is a temporary: and’ exceptional remedy: which is available before the rights of the partics have been finally determined. Order 10, r. 27, of the CPR provides that a court may grant an injunction by an interlocutory order when 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 shall be just to do so. Having carefully read and considered the respective sworn statements and the submissions by Counsel, it is very clear to me thatthe facts in the present case are very much in dispute. This being the case, I fiold that the matter raises triabie issues. The Court must also consider whether damages are ah-adequate remedy. Damages emerging from claims of land are are not considered as an adequate remedy in view of the unique value that every piece of land has to its owner. In the case of Mulipa vy. Mr. & Mrs. Bibiyani and others unknown, HC/PR Land Cause No. 105 of 2016, Justice Tembo put-the point in the following words: ae “What the Court wishes to observe is that land is inherently unique and therefore damages are not an adequate remedy where the same is dealt with adversely. Therefore, the issue on adequacy of damages is ordinarily out of the question in relation to application for injunction in relation to land. See Nanguwo v Tember and another civil cause number 451 of 2013 (High Court) (unreported)” .~ , Juma Tembo v. GVH Mseteza & 2 Others HR oO ~ Kenyatta Nyirenda, J. AS vepards the balance of justice, sometimes it is best “to grant an order of interlocutory injunction so as to maintain the status quo until the trial and, at other times, it is best not to impose any restraint on the defendant: see © Hubbard v. Vosper [1972] 2 Q. B. 84. In the present case, the parties are agreed that the presentt dispute arises from acts that took place - in’ 2004 when the Claimant’s father passed away and, by the Claimant’s own admission, the 1‘ Defendant’s sibling started to work on the land in dispute to the exclusion of the Claimant and. the Claimant has never been able to recover the land since 2004. In the cir cumstances, lam very much persuaded by the submissions by Counsel Chiwaya that the. circumstances of this case favour maintaining:the status‘quo. Accordingly, tlie application by the Claimant for an order of interlocutory injunction is NOT allowed. , Pronounced in Chambers this 29% day of March 2022 at Lilongwe i in the Republic of Malawi. oo Kenyatta Nyirenda - JUDGE |