Khansia v AG (Civil Cause 33 of 1994) [1997] MWHCCiv 19 (30 June 1997)

I / BETWEEN IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE N0.3~_)F 1994 YUSUF A KHANSIA . . . . . . . . . . . . . . . . . . . . . . . . . . . PLAINTIFF AND THE ATTORNEY GENERAL . . . . . . . . . . . . . . . . . . . . . . DEFENDANT CORAM: QOTO, DEPUTY REGISTRAR Msisha of counsel for the plaintiff Defendant or his representative - absent QOTO, DEPUTY REGISTRAR ORDER This is a notice of assesseme nt of damages following an interlocutory judgement the plaintiff obtained against the defendant on 7th July, 1995. It was adjudged that the plaintiff was entitled to the restoration of his property or its value and damages. The brief facts which gave rise to this judgement are as follows. The plaintiff who is of Asian origin came to Malawi in 1941. He operated a number of business including growing tobacco. On or about, 28th July, 1971, a forfeiture order was made against him under the Forfeiture Act (Cap 14:06) of the Laws of Malawi. In addition the plaintiff himself was detained for 88 days. The forfeiture order was rescinded on 19th July, 1977. No reason were given for the forfeiture order or for rescinding it except that on both orders, it was stated that it had pleased the President to make them. One of legacies of the HIGH COURT ~IBHA~~:_J -2- British rule is fair play. Fair play would have dictated that reasons be given to the plaintiff for both order. The learned judge held that the forfeiture order was not justified in that it ofended the provisions of the Constitution of that time and of the United Nations Universal Declaration of Human Rights. The defendant was therefore obliged to return all the plaintiffs' properties which were forfeited under the forfeiture order or pay its current value. The evidence of the plaintiff, which is undisputed and unchallenged, was that when he came to this country, he got employed by Dasua and Company in Ntcheu. He worked there up to 1952 and thereafter, he set up a retial shop business of his own at Chipoka. He ran that shop up to 1961. Meanwhile he had, in 1957, purchased a shop and a residence in Chipoka. In 1961 he purchased another shop at Salima Boma from Mandala Limited. This time he indulged in both retail and wholesale business. In 1965, he bought land in Nkhotakota from I Conforzi Limited. This land comprised 300 acres of freehold land. When he bought it, it was bush. He cleared it and thereafter, he did mixed farming on it. He grew cotton, maize and tobacco. As his business enterprise grew, he enlisted the help of one VO Waka to become a partner. They worked together for two years when the latter left to run his father's business. He thereafter ran his business on his own. he sold his retail shops at Chipoka to developed his land and in years 1967, 1969 and 1970, he only grew burley tobacco. He again sold his other shop in Salima in order to further develop his land and his farming business. He built a shop and two residential premises on his land. He also allowed tenants to grow tobacco on it. On 29th July, 1971, he was arrested and the Registrar General told him that all his land and other property including money -3- wherever it was in Malawi had been forfeited. When he asked the District Commissioner, Salima, as to the reasons for forfeiture, he was told that the reasons were not known. The District Commissioner made an inventory of all his personal property at his land and he was given a copy which is exhibit PI. After an inventory was taken of his property, he was taken to Salima Police Station and next day they took him to Lilongwe Police Station and then to Maula Prison. No reason was given to him for his arrest as well as for his detention. he was initially detained for 28 days but his kept being renewed until October, 1971, when he was taken to Salima Magistrate Court where he was released on bail. A charge of illegally buying tobacco from tenants was levelled against him but, as he had a valid permit to do so, the Police told him that they had no case against him. He then asked for the return of his property from the Registrar General. The Registrar general said he could only release the forfeited property on orders from Zomba. the onbly thing the Registrar General said he could give was some money but to his wife. This he did. The Registrar General used to pay his wife K200.00 for their upkeep. As the Registrar General refused to release his property and, as he could not own anything, he left Malawi on 21st March, 1972. He said among the properties that had been forfeited was a new tractor which he had bought at K2,000.00. A similar one nolw costs K650,000.00 according to the quotation exhibited as P4. There was also had a Daihatsu box-body which was valued at £900. The current price for such a motor vehicle is K495,000.00 according to the quotation marked exhibit PS. He also had a tobacco pressing machine which cost him £450. A similar one now costs K22,500.00 according to the quotation -4- marked exhibit P6. There was also had a steel safe. A similar one costs Kl5,000 according to the quotation exhibited as P7. He also had a honda water pump for which he had paid £250. A similar one now costs Kl6,375.00 according to the quotation exhibited P8. He made a list of other items which were forfeited. The list shows the present value of the forfeited items. He also had two other motor vehicles, a landrover and a ford cortina. He had sold the ford cortina at the time the forfeiture order was made and the purchase price of £500 was paid to the Registrar general. The value of the landrover was £400. Its present value is K900,000.00. He had bought the land at £600. He spent £10,000 developing it. He was growing tobacco on 250 acres and he made £10,000 in 1968 and 1969, £14,000 in 1971 and £18,000 in 1971. When he went to the United Kingdom, he initially lived totally on charity and social security. Later he worked as a weaver in different factories. He had six children with him and he went to the United Kingdom with five. From United Kingdom he went to Zambia and returned to Malawi in 1994. He has not hitherto recovered anything . His money in the Bank was £7,000 and it was also forfeited. The cash in the house which was also forfeited was between £200 and £300. The judgement in this action enjoins me to pursess the present value of the forfeited property and award the plaintiff£ general damages. An inventory was made of the forfeited property by the District Commissioner of Salima then. A copy of that inventory is -5- marked exhibit Pl. It shows inter alia that the forfeited property comprised Kaniche Estate which was 300 acres, one kimberly brick building (iron roofed which consisted of a shop, two roomed residential quarters, 3 roomed servants quarters, 1 bathroom, 1 food store, 1 dining room, 1 kitchen and 1 lavatory). The value of this building is given as £600. The other property was l fordsch major diesel tractor, 1 SA wonder plough, 1 motor vehicle a Diahatsu Boxbody BB 9007, 1 old I brokken down land rover registration marks BB 1747, l kimberley brick building (grass roofed) which contained 3 rooms containing unbaled burley tobacco, 1 iron bed, l pail, l water can, one honda water pump and engine, 1 broken tricycle and 1 empty drum. There was also on large tobacco shed, 1 bailing shed and one tobacco shed. All these contained baled and unbaled burley tobacco. There was one empty shed and 10 bales of burley tobacco, 120 light blue plastic water pipes and 7 goats. The household property included 3 iron beds, 1 wooded bed, 3 cupboard, 2 stools, 2 arm chairs,l settee, 1 refrigerator, l treadle sewing machine, 1 safe, 1 shotgun, 3 camp chairs, 1 radio, 1 table clock, 1 dining table, 1 mat safe, l baby cot, 6 tranks, 1 camera, 4 suitcases, 1 ferican, 1 ghee can, l bicycle, 10 empty drum, 4 bags of rice, 30 light blue plastic pipes and l guinea fowl. A new tractor according to exhibit P4, is valued at K650,000.00. He had bought his at £2,000.00 and at the time of forfeiture had been in use for sometime. I think the present value of the forfeited tractor is K400,000.00 and I award this sum of money to the plaintiff. A new Daihatsu motor vehicle is now K495,000.00 according to the quotation marked exhibit PS. The plaintiff had bought his at £900. At the time of forfeiture it had been in use for sometime I assess the present value of the forfeiture Daihatsu motor vehicle at K300,000.00. According to exhibit P6, the present value of a new pressing machine for tobacco is K22,500.00. The plaintiff had bought his at £450. The present value of the forfeited pressing machine is therefore K20,000.00 and I award this sum to the plaintiff. -6- A new steel safe is now valued at KlS,000.00 according to the quotation exhibited as P7. The plaintiff's evidence however was that his safe was bigger than the one whose quotation is exhibit P7. I have no present value of that and as such I award the plaintiff KlS,000.00 for the safe. A new water pump valued at Kl6,375.00 according to the quotation exhibited as P8. The plaintiff's water pump and its engine were not new. I accordingly award him KlS,000.00 for the water pump and its engine. The other motor vehicles which were forfeited were a landrover and a ford cortina. He had bought the landrover at £400. The present value of a landrover is K900,000.00. It is clear from the inventory report exhibit Pl that the landrover was a non-runner. I award him KS00,000 for it. The other motor vehicle a cortina had been sold at the time of forfeiture. There are many other items shown on exhibit Pl whose present value has not been given. However there were many other items mostly of household nature which were forfeited and most of them were of considerable value and amount. I think that if I awarded to the plaintiff Kl00,000.00, I will have given him a fair and adequate compensation. This I do. I now turn to the land and the buildings thereon. It is not in dispute that the land comprised 300 acres. The plaintiff grew tobacco on it and he had spent considerable sums of money to develop it. Here I have to provide him with fair compensation. The plaintiff is entitled to be compensated fairly and fully for his loss. Built into this concept of fair compensation is the corally that he is not entitled to receive more than fair compensation. Fair compensation requires that he should be paid the value of land to him not its value generally or its value of the land to him not its value to the acquiring authority. This -7- is well established. See the classic judgement of Scott L. J. in Horn v Sunderland Dev. Corporation 1941 1 All ER 480. Where the owner is using the land to carry on business, the value of land to him will include the value of his being able to conduct his business there without disturbance. Compensation should cover this disturbance loss as well as the market value of the land itself. For the claimant loses the land and with it the special value it has to him as the site for his business or home. I must state at once that to state the general principle of fair and adequate compensation is easy enough to state but its application is very dificult. That notwithstanding, the first principle is that there must be causal connection between the acquisition of the land by the defendant and the loss to the plaintiff. Fairness also does not require that the defendant should pay for damages which are remote. He cannot be responsible ad infinitum. Further fairness requires the claimant to behave reasonably. If a person in the position of the claimant would have taken steps to eliminate or reduce the loss and the claimant failed to do so, he cannot fairly exppect to be compensated for the loss or the unreasonable part of it. Likewise if a reasonable person person in the position of the claimant would not have incurred the expenditure claimed, fairness requires that the defendant should not be responsible for such expenditure. With these principles I revert to the main cast. The land was vast covering 300 acres. He had spent considerable sums of money developing it. he had constructed dwelling houses and other buildings on it. What then was the value of land to him. The evaluation made by an evaluation officer in 1972 was that the buildings and the land with no crops thereon was K7,200.00. This is shown on exhibit Pl0. According to the plaintiff puts the value of his 300 acres at K2,550,000.00. He -8- puts the value of the buildings thereon at K250,000.00. The total is K2,800,000.00, I award this sum to him. This sum is the value of the land to him and includes the value of his being able to conduct his business there without disturbance. I have already awarded him the value of the property on the land I now turn to general damages. Here I think KS00,000.00 is fair and adequate general damages and I award it to him. In total I assess the valued of the plaintiff forfeited property and general damages at K4,630,000.00. MADE IN CHAMBERS THIS 30TH JUNE, 1997 AT BLANTYRE. r~~ ,~~ ~ to DEPUTY REGISTRAR