Jalakasi & 2 Ors. v Adam (Civil Cause 1318 of 1992) [1993] MWHCCiv 30 (15 January 1993)

1 r J. IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 1318 OF 1992 BETWEEN: D S JALAKASI (MALE) .. .. .. .. .. ...... .. .. .. . .. , .. lST PLAINTIFF - and - PETRO GILBERT (MALE) .• . .. , . . . •.. . .. . . . " .....•.. 2ND PLAINTIFF - and BAULENI {MALE) • ••..••. .. . . .• • . . . • •.. • •.. • . • . •.. 3RD PLAINTIFF BONSO ADAM (MALE) .• , . . . .. .... . . . . .. .•.. . . . .•.. •. DEFENDANT - and - CORAM: MSOSA (MRS), J. Jumbe, of Counsel, for the Plaintiff Banda, of Counsel for the Defendant Kadyakale, Law Clerk R U L I N G This is an application to discharge an injunction , made under 0 . 29 1(17) " The first plaintiff (hereinafter referred to as the plaintiff) brought an application interlocutory The application was ex injunction against the defendant" parte and after hearing the arguments of learned Counsel , the Court granted the application, whereupon it was decreed as follows : for an 11 It is ordered and directed that himself his servants or agents be injunction is hereby granted : the defendant restrained and by an (1) (2) restraining the defendant his servants agents or otherwise howsoever from erecting or continuing ·. to erect any structures on the first plaintiff's land situate at and known as Kasabwe Farm at Nsenga Village , T/A Mponda , Mangochi Di strict; the his restraining himself servants or agents or otherwise howsoever from entering or otherwise trespassing upon the said land; defendant by - 2 - It is further ordered that - ( 3} ( 4} servants the defendant his forthwith vacate the said land; or agents do the defendant by himself his servc1nts or agents do forthwith remove all his goods or articles of whatsover nature from the said land " " The defendant now applies to have the said injunction dissolved o The application is supported by an affidavit deposed to by the defendant's Counsel and a supplementary affidavit deposed The affidavits, inter alia , state ~- the defendant himself o to by II (a) That in or about applied to lease 20 where he could grow is still pendingo the defendant March 1992, hectares of land in Mangochi tobacco , and his application (b} That prior to the application , the defendant has been in occupation of the said land for several yearso ( C} That in fact land which occupies does not belong to because the plaintiff was given Zimba in the same Districto that the defendant the plaintiff the land at Che (d) That the defendant has spent K40 , 000 on the land in question preparing it for tobacco growing o tobacco ( e} That the defendant has grown about 10 hectares of interlocutory injunction is not discharged , he will have lost all the crop which requires close attention and watering o that the and if (f) That it would be unfair to punish the defendant by destroying his tobacco crop grown on the land to which he has a legitimate claim in that the same was given to him by the Village Headman Nsenga and Chief Mponda and he has documentary evidence to that effect o (g) That the defendant has file to legal practitioner the plaintiff's claim and that he intends to adduce the evidence hearing " 11 instructed his defence a claim during support his to to It was submitted on behalf of the defendant that the defendant got the land in question from the Village Headman He applied for a and has occupied it for several years. Government lease in December 1991, but that no formal lease - 3 - The defendant has spent K40, 000 in has been granted yet. cultivating the land, It was further submitted, on his behalf, that the plaintiff and the defendant a.re claiming ownership to the same piece of land and this is the issue to be resolved by the Court" The defendant, therefore, asks for the discharge of the interlocutory injunction which was granted to the plaintiff, until the issue is resolved by the Court. The application is opposed . It was submitted on behalf of the plaintiff that the plaintiff was given a lease of 21 years by the Government and that in view of this, one cannot reasonably argue that there is a triable issue or that the defendant has a better claim to the said land which can enable him to have the injunction granted in this Court discharged. He has further submitted that the Defendant the spent K40,000 on existing facts. The Court cannot, therefore, rely on that fact in order to discharge the interlocutory injunction . land with full knowledge of the In September, 1992, I have carefully considered what was said for the I have also considered the plaintiff and for the defendant . affidavits which were filed in support of this application. The facts so far show that the plaintiff was granted a lease of 21 years by the Government with effect from 1st June , the 1990 " a defendant by the plaintiff's legal practitioners requesting him to vacate the land and that in default legal proceedings Then on 22nd October , would be instituted against him . think it is 1992 , the present injunction was obtained. also important to mention that on 10th December, 1992 , the defendant was ordered to pay a fine of KlOO for contempt in committing a breach of the injunction granted against him in In addition to all this, the defendant has not this mattero yet entered any defence to the plaintiff's claim . letter was written to I The conduct of the defendant clearly shows that he has no intention whatsoever to obey or respect the injunction granted against him o If he had obeyed the injunction , he would not have continued to cultivate the land . He is aware that the plaintiff is claiming that he has a good title to the the land and he has produced some documents alleged ownership o I would say the defendant has not come to this Court with clean hands . to prove The application , for the reasons I have already given , is , fail. injunction must continue. It must The conseq uently , dismissed with costs . DELIVERED in Chambers this 15th day of January, 1993 , at Blantyre. (~!?cf ASE Msosa (Mrs) JUDGE