Thornicroft v Malawi Housing Corporation (Civil Cause 121 of 2023) [2023] MWHC 129 (17 November 2023)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL DIVISION CIVIL CAUSE NO. 121 OF 2023 (Before Honourable Justice Mambulasa) BETWEEN: EDMUND DESMOND THORNICROPT...............cscceeseseeeeees CLAIMANT -AND- MALAWI HOUSING CORPORATION .............ccceececeeeeesees DEFENDANT CORAM: HON. JUSTICE MANDALA MAMBULASA Mr. Hope Innocent Mvonye, Advocate for the Claimant Mr. Lester Mwantisi, Advocate for the Defendant Mr. Obet Chitatu, Court Clerk RULING MAMBULASA, J [1] [2] [3] [4] [5] Introduction On 18" July, 2023 the Claimant filed a without-notice application for an interlocutory order of injunction restraining the Defendant, either acting through its employees or agents, from taking back possession of House Number NP 537, Naperi, Blantyre and evicting him from the said house until the final determination of the matter or a further order of the Court. The application was supported by a sworn statement made by the Claimant himself. It was taken out under Order 10, rules 1 and 27 as read with rule 30 of the Courts (High Court) (Civil Procedure) Rules, 2017. When the Court considered the application, it granted the interlocutory order of injunction to the Claimant. It is trite that interlocutory orders of injunction do not remain in force for long periods without affording an opportunity to the Defendant to be heard on the same. If that were so, that would be tantamount to condemning the Defendant concerned without being heard. That would be a fundamental breach of one of the rules of natural justice. In this regard, the Defendant filed a without notice application to discharge or vacate the interlocutory order of injunction that was granted to the Claimant. This Court directed that the application should come on a with-notice basis to the Claimant. The Defendant obliged and the application was eventually heard on 30" October, 2023. This is now the Court’s determination on the Defendant’s application. [6] [7] [8] [9] [10] [11] The Claimant’s Case The Claimant deposed in his sworn statement that he had lived in the house in issue for about 19 years from the year 2004. He stated that the tenancy relating to the house herein was initially given to Aziz Ali, who was his friend and that the said tenancy was in the name of Ms. Constance Mbvundula, wife to Aziz Ali who is now deceased. In or around 2004, Aziz Ali informed the Claimant that he had found alternative residence and intended to vacate the house in issue and because the Claimant was at the time looking for a place to reside, Aziz Ali informed him that he could occupy the house in the name of Ms. Constance Mbvundula, as they awaited to process a change of tenancy of the house to reflect his name. The Claimant occupied the house in issue without any problems and he was duly paying all rentals to the Defendant in the name of Ms. Constance Mbvundula. Sometimes, the Defendant’s officers would come and inspect the house and they would find the Claimant in the house and raised no issues in relation to his occupancy of the house. The Defendant was well aware that he was the one who occupied the house in issue. That it came as a shock to the Claimant when on or about 16" July, 2023, the Defendant through its agents or employees, while in the company of police [12] [13] [14] [15] officers came to the house and demanded that he took out all his property from the said house and that the Defendant intended to repossess the house. The Defendant forcefully took out all the Claimant’s property from the house and forced him to sign a handwritten document which was to the effect that he had given authorization to the Defendant to repossess the house. The actions of the Defendant were extremely shocking considering that it all along knew that the Claimant was the current occupier of the house in issue. The Claimant also had a meeting with the Defendant around early 2023 to discuss the tenancy arrangements of the house and the Defendant notified him to pay rentals to guarantee his occupation of the house as they resolved the matter at their office. The Claimant followed the Defendant’s instruction to pay rentals, and in June 2023, he duly paid rentals for the house up to the month of September 2023 and the payment was made through the Defendant’s National Bank of Malawi Plc account. There is attached and exhibited copies of deposit slips reflecting the rental payment transactions marked as, “EDT1” and “EDT2”. The Defendant herein assured the Claimant that they would arrange to resolve the tenancy issues and that in the meantime, he should keep paying rentals to safeguard his occupation of the house, only to go to the house unannounced and without notice and start to insist that he vacates the house. [16] [17] [18] [19] [20] [21] The Claimant’s property was outside the house and the Defendant intended to repossess the house so that a new tenant 1s given occupation despite the fact that he had paid his rentals up to September, 2023. The Claimant’s property was at serious risk of being damaged or stolen as it was outside the house and in an open space where there was no security and considering the current weather, rains could easily destroy the property. That the Claimant had spent a substantial period of time, that is 19 years, while in occupation of the house in issue. He had nowhere else to go apart from the house which he had been residing in since his young age. It would be extremely unfair and unjust if the Defendant was to evict him and repossess the house considering that it 1s the only place he had to stay in and that the Defendant also knew that he was the occupant of the house herein. Thus, it is the Claimant’s prayer that the interlocutory order of injunction be continued until the determination of the matter herein. The Defendant’s Case Ms. Okota Mzanda, Legal Counsel for the Defendant filed a Sworn Statement in Support of the application to set aside an interlocutory order of injunction. She deposed that the house in issue has been on lease for tenancy to civil servants and the last civil servant to occupy the house from the year 1999 was a certain Mr. C. E. Nzawa. There is produced and exhibited correspondence for Mr. C. E. Nzawa’s tenancy marked, “OM1a’, “OM1b” and “OMI1c”. [22] [23] [24] [25] [26] [27] On or around 16" August, 2010 Mr. C. E. Nzawa agreed to swap the house with a Ms. Constance Mbvundula. There is produced and exhibited the said application for swapping marked as, “OM2”. According to the records of the Defendant, there has not been a tenant by the name of Aziz Ali as alleged by the Claimant. The Defendant’s records indicate that the said Ms. Constance Mbvundula has been the legal tenant for the said house since 2010 until on 23" May, 2023 when the Defendant was alerted through a letter that she was illegally sub- letting the house to the Claimant. There is produced and exhibited the said letter marked as, “OM3”. On or around 21* April, 2023 the Defendant then proceeded to invite the said Ms. Constance Mbvundula for a discussion on the allegation of illegal tenancy. There is produced and exhibited a letter of invitation marked as, “OMA4”. On the day of the meeting, the Defendant was shocked to learn from the mother of Ms. Constance Mbvundula that she had passed on but that the same was not relayed to the Defendant, hence any person staying in the house was and is an illegal tenant. There is produced and exhibited a copy of the letter marked as, “OMS”. That it is evident that the Claimant is not and has never been a tenant of the Defendant. [28] [29] [30] [31] [32] [33] [34] The fact that the Claimant was kept in the house, regardless of the duration, does not entitle him to be the tenant as asserted. The Claimant has not at any point during his alleged 19 years of stay in the house endeavored to apply for change of tenancy as he alleges, hence it is not true that he ever engaged the Defendant to process the change of tenancy into his name. Thus, the Defendant prays that the interlocutory order of injunction be vacated or set aside with costs. Claimant’s Response The Claimant filed another Sworn Statement in Opposition to the application to vacate or set aside the interlocutory order of injunction. He deposed that he was clear at the time of obtaining the interlocutory order of injunction that the tenancy of the house was in the name of Ms. Constance Mbvundula, who was, before her demise, the wife to Aziz Ali. The Claimant clarified that it was Aziz Ali and his wife Ms. Constance Mbvundula that left the house in his hands to occupy it and make arrangements for change of tenancy then as they had left Blantyre. He never suppressed any material facts to the case. Since the Claimant occupied the house in 2004, he had been following up with the Defendant on change of tenancy but was being kept on hold. It was the 7 [35] [36] [37] [38] Defendant that kept on telling him to keep on paying rentals in the name of the late Ms. Constance Mbvundula, former tenant and not in his name as the Defendant had not yet changed the tenancy. That employees and agents of the Defendant, inter alia, Mrs. M. E. Msapato (the Regional Manager for the Defendant) and Counsel Okota Mzanda (legal) knew that he was staying in the house. When he had problems, the Claimant would go to the Defendant to seek assistance and they would assist him as their tenant. The Defendant had been aware of the Claimant’s occupation of the house even prior to the discussions they had to sort out the tenancy issues. The Defendant’s employees would find him at the house when doing inspections and would even ask him sometimes if his issue of change of tenancy had been sorted out, meaning that they knew the issue. That a relative of the Defendant’s employee namely, Mrs. J. Gama is the one who started the issue claiming that since he had stayed for a long time without being offered the house formally, he should vacate the house so that it could be allocated to someone else, referring to her relation, Thokozani D. Gama. There is produced and exhibited a letter from Thokozani D. Gama requesting for tenancy of the house marked as, “EDT2”. The Defendant admits that he was kept in the house for a long time. However, contrary to what the Defendant avers, the Claimant should be entitled to continued occupancy and possession based on the fact that the Defendant kept [39] [40] [41] [42] [43] [44] him in the house knowing he never held a tenancy and that he stayed there for a long period of time. The Defendant should be estopped. It is not true that the Claimant never endeavored to apply for a change of tenancy. He did. The Claimant will be rendered homeless if the interlocutory order of injunction is vacated. The Defendant will lose nothing if the injunction is maintained as it will continue to receive rentals as it has been doing. The Defendant will not suffer any prejudice at all if the Claimant will be left to occupy the house herein until the determination of the matter as he will continue to pay rentals as any other tenant. It will be unjust and unfair to compel the Claimant to leave a house which he has stayed in for such a long duration of time with the full knowledge of the Defendant herein. The duty of the Defendant is to provide accommodation to citizens and the duty of the citizens (tenants) is to pay rentals, something that he is doing. The Claimant prays that the Defendant’s application should be dismissed with costs. Defendant’s Reply Ms. Okota Mzanda, deposed that it was not correct that the employees and agents of the Defendant including Mrs. M. E. Msapato and herself and other 9 [45] [46] [47] [48] [49] technical staff knew that the Claimant was occupying the house. They never knew the Claimant and that he was staying in the house and that at no point did he go to the Defendant to seek assistance as a tenant. The Claimant had never written the Defendant and he could not show any letter he wrote stating that he was a tenant and seeking to regularize his tenancy. There were many people on the Defendant’s list who applied for housing and were waiting for their turn to be allocated a house. The Defendant did not allow tenants to simply write to regularize their tenancy. That the issue of promissory estoppel did not arise in this matter. The Defendant’s houses were properly documented and there were no verbal allocations of houses done through promises and by word of mouth. As exhibit, “OM5” shows, the late Ms. Constance Mbvundula did not even give the Claimant authorization to occupy the house as a tenant. That it is incumbent upon this Court to preserve the assets of the Malawi Government in form of lands and houses entrusted to it for safeguarding and that the decision of the Defendant should hold paramount as to how the assets are to be allocated and who should be in the houses and the Defendant having technocrats in this area knows better and the Court should not interfere with the Defendant’s decisions and considerations. The Defendant maintains its position that the interlocutory order of injunction be vacated with costs. 10 Issue for Determination [50] The issue for determination before this Court is: Whether or not it should set aside or vacate the interlocutory order of injunction that it granted to the Claimant with costs as prayed? The Law [51] Order 10, rule 27 of the Courts (High Court) (Civil Procedure) Rules, 2017 provides as follows: The Court may, on application, grant an injunction by an interlocutory order when it appears to the Court- (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, and the order may be made unconditionally or on such terms or conditions as the Court considers just. [52] The law applicable on setting aside, vacation or discharge of an interlocutory order of injunction was summarized in Naura t/a K & C General Contractors -vs- CBM Financial Services Ltd.' Tembo J (as he then was) had this to say at page 268: The law which the court ought to apply in considering the instant application to discharge the injunction is as follows: the court may discharge the injunction under 1 11998] MLR 266. 11 review, if it appears that the order in question was irregularly obtained by suppression of facts: Boyce -v-s Gill [1891] 64 LT 824. The court may also discharge an injunction if it becomes apparent that the injunction under review was founded on a decision which is wrong in law: Regent Oil Lid -vs- JT Leavesley (Inchfield) Ltd [1962] All ER 454. The court must, therefore, examine the whole of the affidavit evidence now before it which has been adduced on behalf of both parties, thus the plaintiff and the defendant. The law requires that the judge who hears proceedings inter partes must decide on all the evidence laid before him; that such ought to be so whether the inter partes hearing takes the form of an application by the defendant to discharge the injunction in question or whether the injunction in question was earlier only granted for a limited time and the hearing now is once more at the instance of the plaintiff in regard to whether or not it should be continued. The judge must consider the whole of the evidence as it then stands in deciding whether to maintain or discharge the order previously made: Per Lord Justice Kerr in Ninemia Corp -vs- Trave Schiffahrts [1984] 1 All ER 422. [53] The position at law is that it is always open to an opposing party, where an [54] interlocutory order of injunction was granted on a without-notice basis, to apply to the court for the discharge of the injunction on the grounds that there had not been frank and full disclosure of all material facts and the law.” In Edward Kaliyati et al -vs- Maranatha International Academy et al Nyirenda J (as he then was) laid down the principles which guide disclosure of material facts, on page 68, as follows: ? Bon Elias Kaotcha Kalindo and others-vs- Springstone Company Limited and another [2013] MLR 25. 3 [2013] MLR 63. 12 It has been held, in the case of Brink’s Mat Lid -vs- Elcombe and others [1988] 1 WLR 1350 at 1356F, that the duty of the applicant to make a full and frank disclosure of material facts entails the following: 1. Material facts are those which are material for the judge to know in dealing with the application as made; Materiality is to be decided by the court and not by assessment of the applicant or his legal advisors; The applicant must make proper inquiries before making the application; The duty of disclosure applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such enquiries; The extent of the inquiries which will be held to be proper and therefore necessary must depend on all the circumstances of the case; If material non-disclosure is established the court will be astute to ensure deprivation of an ex-parte injunction or any relief obtained thereby; Whether the fact complained of is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depend on the importance of the fact to the issues and that non-disclosure was innocent is an important consideration but not decisive. Analysis and Application of the Law to the Facts [55] This Court does not believe the version of events as narrated by the Claimant. He claims to have occupied the house in issue for 19 years from the year 2004. 13 [56] Documentary evidence tendered in this application by both parties does not speak to that long duration as alleged. For instance, exhibits marked as, “EDT1” and “EDT2” by the Claimant are deposit slips for National Bank of Malawi plc that show that payment for rentals was only made on 13" June, 2023 and 27" June, 2023. There are no other deposit slips for all the other previous years. Exhibit marked as, “OM2” is a letter dated 16" August, 2010 written by the late Ms. Constance Mbvundula to the General Manager of the Defendant applying for house swapping with Mrs. Hazel Nzawa, wife to Mr. C. E. Nzawa. Both Ms. Constance Mbvundula and Mrs. Hazel Nzawa signed this letter. This letter alone shows that the Claimant was not in occupation of the house in issue in the year 2010. According to exhibit marked as, “OM5” the letter written by late Ms. Constance Mbvundula’s mother dated 17" May, 2023 the arrangement that her daughter made with the Claimant was for the Claimant to be looking after the house when her work took her to different parts of the country. It was never that the Claimant should be a tenant of the Defendant. In fact, late Ms. Constance Mbvundula had no such authority to sublet the house to any person. As correctly argued by Advocate Mr. Lester Mwantisi, that would have been contrary to the express terms and conditions of her tenancy agreement with the Defendant that would have entitled the Defendant to terminate the tenancy agreement with her. The long and short of it, 1s that the Claimant suppressed or misrepresented some facts in his application. The Claimant also gave this Court the impression that his stay in the house in issue was with the full knowledge of the Defendant and that he had been working towards regularizing his occupation of the house, including holding a meeting with the Defendant in early this year 2023. The Defendant 14 [57] [58] vehemently denied both facts in their sworn statements. Again, there was suppression or misrepresentation of material facts here as the Defendant does not have any record showing that the Claimant applied to it to be its tenant. If the Court had such information that there was actually no application made by the Claimant to the Defendant to be its tenant and that he had taken no steps at all to regularize his stay in the house in issue as a tenant, it would not have granted him the interlocutory order of injunction that he sought in the first place. These are material facts that would have influenced this Court whether to grant the interlocutory order of injunction or not. As deposed by the Defendant, allocation of houses to tenants is not made by verbal arrangements or promises or word of mouth. Being a statutory corporation, allocation of its houses to tenants is documented at all times. The reasons are simple to decipher. People die. People get transferred from one work station to another. In statutory corporations, people get seconded to other corporations or government departments. People move on for greener pastures. Memories fade. It cannot be that any potential tenant in their right frame of mind can deal with a statutory corporation on a verbal arrangement. There is nothing in writing by the Claimant to the Defendant to prove that he applied for a house to be its tenant or that he took concrete steps to regularize his stay in the house in issue as such tenant. The conclusion to be drawn from all this is that the Defendant and the Claimant do not have any landlord and tenant agreement or relationship between them. There is therefore no any contract between the Claimant and the Defendant that would have given the Claimant an enforceable or arguable 15 [59] [60] claim of right to protect to enable this Court maintain the interlocutory order of injunction that it granted to the Claimant on 18" July, 2023. Stated differently, upon considering the sworn statement evidence from both parties as the law demands, it has now emerged that there is no serious question to be tried as the Claimant has no enforceable or arguable claim of right that he is seeking to protect in this application. It is trite law that the same principles for the grant of an interlocutory order of injunction, should among other considerations, also guide the Court, or are to be applied in determining whether to discharge an interlocutory injunction or not.4 The Claimant is simply an illegal squatter with no occupancy, possessory or proprietary nights in the house in issue. Illegal squatting on the Defendant’s house in issue by the Claimant cannot grant him a cause of action against the Defendant.° The situation would have been different if the Defendant and the Claimant had a landlord and tenant agreement or relationship.° In view of the foregoing reasons, this Court hereby sets aside the interlocutory order of injunction that it granted to the Claimant on 18" July, 2023 against the Defendant on two grounds. First, there was suppression or misrepresentation of material facts. Second, there is no serious question to be * State -and- President of Republic of Malawi and others, ex parte Chancellor College Academic Staff Union and others (1) [2011] MLR 440. > See generally, Shire Highlands Rifle Club -vs- Makandi Tea and Coffee Estates Limited, Civil Cause No. 473 of 2010 (High Court of Malawi) (Principal Registry) (Unreported). ° See for instance, Daud Pearson Magwembere -vs- Malawi Housing Corporation, Land Cause No. 11 of 2018 (High Court of Malawi) (Principal Registry) (Unreported). 16 tried as the Claimant was never a tenant of the Defendant. The application by the Defendant therefore succeeds with costs. [61] Made in Chambers this 17" day of November, 2023 at Blantyre, Malawi. , eZ ve, M. D. MAMBULASA JUDGE 17