Chaziya v Banda & 8 Others (Civil Cause 116 of 2021) [2021] MWHC 248 (23 November 2021)

Samson Chaziya v. Lines Banda & 8 Others Kenyatta Nyirenda, J. JUDICIARY IN THE HIGH COURT OF MALAWI LILONGWE DISTRICT REGISTRY (CIVIL DIVISION) CIVIL CAUSE NO. 116 OF 2021 (Before Honourable Justice Kenyatta Nyirenda) BETWEEN: SAMSON CHAZIYA CLAIMANT AND LINESS BANDA........................................................................1stDEFENDANT 2nd DEFENDANT FELLINGS MKWAWIRA ...... .. BENSON CHIKHOSWE........... .............. . .............................3rd DEFENDANT MODRICK CHIKHOSWE............. .................. . ........... . 4th DEFENDANT ISHMAEL KANANAMA ........................ . .. ... .. ................... 5th DEFENDANT julius ching’oma .2.,............\.;T....2 ... .. .. 6th DEFENDANT MRS. JERE............... . ....................... ........ . 7th DEFENDANT MR. MKWAMBA..................................2..........8™ DEFENDANT MRS. STEVEPHIRI........ ..2........................... . 9thDEFENDANT CORAM: THE HONOURABLE JUSTICE KENYATTA NYIRENDA Mr. Mndala, Counsel for the Claimant Mr. Chiudzu, Counsel for the Defendants Mr. Henry KachingWe, Court Clerk "" RULING ~ Kenyatta Nyirenda, J. ’ This is my Ruling on an inter-partes. application by-the Claimant for an order of interlocutory injunction restraining: ; ' . 1 • • •• ■ Samson Chaziya v. Lines Banda & 8 Others Kenyatta Nyirenda, J. “the Defendants or their agents from renting outencroaching, trespassing, taking possession and continuing with any activities on Ngwata Estate, appropriately measuring 151 hectares situate at Chanjowa Village, T/A Wimbe in Kasungu District”, pending the determination of the main case or a further order rtf the Court. The application is supported by a statement/sworn.by the Claimant, which reads as follows: ■ . ’ * ' ' "3. 4. 5. 6. THAT by virtue of Letters of A dm i n istrati o n dated the 21st day of Nove mber, 2018 I was appo in ted A dm in istrata r of the Estate ■ bfWilliafn iCh aziya who died on the 29th day of May, 2016 at St Andrews -Health Centre, in-Kasungu.. Vide a copy of the Letters of Administration marked as “SC 1.” \. THAT at the time of his death the said William Chaziya was survived by a wife and 6 children who are now all adults and I am the .oldest amongst the children. THAT on his death William Chaziya left property among which is a leasehold Farm called- Ngwata, approximately, measuring 151 Hectares which is situated at Chanjowa Village, Traditional Authority Wimbe in. Kasungu District. . Vide a copy of the lease document marked as “SC 2. ” THAT in or around August, 2021 1 made an application for renewal of the lease and I got correspondence from the RegionalCommissionerfor Lands informing me their office- needed to conduct inspection exercise on. the land; Vide a copy of the letter from the Regional Commissioner for Lands marked as “SC 3.” Z THAT the Is! defendant is a sister to the claimant’s father and the rest of the defendants are on the land having been-put there by the lsi defendant. 8. 9. 10. 11. THAT the 1st defendant came onto- the farm in or around the year '2004 and when she started inviting and. settling other people oil the land she was ordered by the late William Chaziya to-move out of the farmland; / ■ • THAT in the year 2009, the late William Chaziya while still alive, instituted proceedings in the First Grade Magistrate Court, sitting at Kasungu seeking an order evicting the defendants from the farmland. Vide an affidavit deponed by the late William. Chaziya and a subsequent order of eviction of the said court respectively marked as “SC 4” and “SC 5.” ' THAT therefore the defendants did not have a licence and or consent from the late William Chaziya to settle and or remain on the farm. ■ THAT after the demise of William Chaziya the defendants continued to trespass onto the land and. have on several occasions physically harassed me. I have also suffered untold anguish, and misery.: at the hands of the-defendants. . 12. THAT the defendants are on the land as. trespassers without, any licence or consent from my late father and or myself. '2 ' . Samson Chaziya v. Lines Banda & 8 Others , Kenyatta Nyirenda, J. 13. 14. 13- 16. 17. 18. 19. THAT as already stated herein on the 12tb day of November, 2018, I was granted Letters of Administration in respect of my father's deceased estate I thus by virtue of the said letters became entitled to the administration and management of Ngwata Farm. ■ -■ ' THAT my attempts.to.administer or manage Ngwata Farm has been frustrated by the defendants. They have usedforce against me dr my servants. They continue to have occupation of the farm. THAT the defendants have also frustrated my efforts to renew the lease ofthe estate by chasing and intimidating officers from the Regional Commissioner for Lands. THAT due to the dets of the defendants 1 have- lost-occupation and use of Ngwata Farm land from 2018 growing season, suffered trespass to the land and suffered inconvenience, psychological and physical pain and suffering. THAT I have since instituted legal proceedings in this very court, seeking among other things, possession of the estate' and., an- order pfi evicting the defendants from thefarm: -C ■. :■ ■■ THAT there is fear that if not stopped the Defendants will continue to trespass on the land and further carry out activities on the- land in a manner not desired by myself. •• THAT I also undertake to pay damages in the event that lam required to do so by this court.” ‘ ‘ The Defendants are opposed to the application and they rely on the following statement, sworn by the 1st Defendant:. , ■ ... ”3. 4. 5. 6. 7. THAT I am the sister to the late William Chaziya whose son is the Claimant herein. THAT in 1990I was given my portion of land at Ngwata Village by my late brother William Chaziya, and subsequently settled'on the land in 1996. THAT in 2006 my late brother William. Chaziya became Chief of Ngwata Village and remained Chief for 5 years after which his. nephew. Mathews Banda became Chief Exhibited hereto and. marked as “LB1” is "a letter explaining the establishment of Ngwata village by Senior-Group Village'Headman Chanjowa. THAT even after the death of William' Chaziya L-have enjoyed uninterrupted possession of the said portion of land at Ngwata Village, nevertheless, 1 verily believe that land that belongs to me is customary land and not leasehold land as I contend the validity of the lease obtained by the late- William Chaziya, as it was never consented to by the T/A Wimbe. Exhibited hereto and marked as “LB2”is a letter drafted by T/A. Wimbe addressed to the District Commissioner for Kasungu concerning the contended land. - ' ■■■'.. THAT I have, since coming into possession of the said land, never invited and settled the other Defendants named herein onto'the land in contention. Exhibited hereto and marked as “LB3” explains as to how the- 3!i. Defendant obtained his land, Exhibit “LB 4” explains how the 4lb Defendant obtained his land, Exhibit j ■ ' '■ 3' ■' .. . Samson Chaziya v. Lines Banda & 8 Others Kenyatta Nyirenda, J. “LB 5” explains how the 5th Defendant obtained his land, Exhibit “LB6” prescribes how the 7lh Defendant bought her landfi'om one Mr. David Phiri, Exhibit “LB7” prescribes how the 8th Defendant bought-his land, and-lastly Exhibit “LBS” explains how the 9th Defendant- bought her land.r. THAT before th&death of Willi am Chaziya, proceedings were commenced in 2009 at the First Grade Magistrate Court sitting at Kasungu where it was held that my brother the late William Chaziya's claim was statue barred. I was not a named Defendant in the proceedings, nevertheless, 'the 2nd Defendant was party to the proceedings. Exhibited hereto and marked as “LB9” is the judgment from the First Grade Magistrate Court sitting at Kasungu from.2009. . THAT the Claimant does not live on the contented land and.fas never approached me to ask me to vacate the. land even after the said Claimant obtain Letters of Administration upon my brother s death. THAT the Claimant has now commenced legal proceedings against myself and 8 other Defendants which, inter alia, he seeks to gain possession of the land in contention and evict myself and the other named Defendants. THAT I am frustrated by the Cliamdnfs attempt to gain possession "of the land as I have 'been there for 25 years. Which has also caused me emotional stress and turmoil. THAT if the injunction is grantedit .will cause great harm to my livelihood as the land in question is where I have farmed for food for 25 years, and also plan on . using this rainy season to plant maize for rny sustenance as I have always clone. THAT if the injunction is granted, I will be destitute with no place to live or farm and may likely suffer due to my old age as lam 61.years of age. ” 8. 9. 10. 11. 12. 13. An interlocutory injunction is a temporary and exceptional remedy which is available before the rights of the parties 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 sworn statements and the submissions by Counsel, it is very clear to me that.the facts in the present case are very much in dispute. Both parties, the Claimant on one side and the Defendant on the other side, claim to be the owner of the land in dispute. I, therefore, find that the matter raises triable issues. As the subject of the present case relates to real property, there is really little to say on the matter. It is trite that every piece of land is of particular and unique value to the owner and damages are an inadequate remedy and, in any case, damages would be difficult to assess: see Julie F. Mulipa v. Mr. and Mrs. Bibiyafti and Others unknown, Samson Chaziya v. Lines Banda & 8 Others . / . ' . • . ■ ’ - Kenyatta Nyirenda, J. Land Cause No. 105 of 2016 (unreported), wherein Tembo, J., while quoting Nanguwo v Tembenu and another, HC/PR Civil Cause No. 451 of 2013 (unreported), stated as follows: “What this 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 applications for injunction in relation to land. ” As regards the balance of justice, sometimes it is best to: grant an 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 defendants: see Hubbard v. Vos per [1972] 2 Q. B. 84. In the present case, it will be recalled that the main thrust of the case of the Defendants is that the. the grant of an order of injunction in the. present circumstances would be unfair on the Defendants as they have had continuous and undisturbed possession of the land for the last 15 years or more. This has gone unchallenged. Further, there is a judgement of the First Grade Magistrate Court sitting at Kasungu which raises the issue of whether or not the present action is caught by the doctrine of res judicata. Furthermore, as was correctly submitted by Counsel Chiudzu, unlike the Claimant who does not live on the land in dispute, the Defendants live and cultivate on the land in dispute. and, as a result, stand to lose a lot more if the order of interlocutory injunction is granted. ‘ • Having considered the foregoing matters, J .am satisfied that the balance of justice lies in maintaining the status quo. Accordingly, the application for an interlocutory injunction is dismissed with costs. " ' • Pronounced in Chambers this 23 rd day of November 2021 at Lilongwe in the Republic of Malawi. /-x. Kenyatta NyireriBa JUDGE 5