Farmers World Ltd v Chamwabvi Group & Anor. (510 of 2004) [2006] MWHC 145 (12 July 2006)

5 15 IN THE MALAWI SUPREME COURT OF APPEAL PRINCIPAL REGISTRY M. S. C. A CIVIL CAUSE NO. … OF 2009 (Being High Court Civil Cause No.510 of 2004) FARMERS WORLD LIMITED ………………………APPLICANT BETWEEN AND CHAMWABVI GROUP LIMITED…………………1ST RESPONDENT KAMZATI M. CHOMBO …………………………..2ND RESPONDENT CORAM: HON. JUSTICE NYIRENDA Counsel for the Plaintiff, Msowoya Counsel for the Defendant, Chinula/Nkhoma Court interpreter, Chulu Date: 01/03/04 Time: 8.30am RECORD OF COURT PROCEEDINGS COURT: Matters being discussed to determine appropriate course of action ie. In Chambers or in open court depending on how the 1st and 2nd defendants look at what the real issues are. Court to be advised when parties are ready to be heard. A. K. C. NYIRENDA JUDGE 01/03/04 CORAM: HON. JUSTICE NYIRENDA, J Counsel for the Plaintiff, Msowoya Counsel for the Defendants, Court Interpreter, Chulu Date: 05/07/04 Time: 9:00a.m Msowoya: This application is under Order 29 r 1. Application is by tenours World for injunction the respondent ie Chamwabvi Group and Kamzati Chombo as per our affidavit and summons. Plaintiff would have proceeded on O. S but because on separate instances have threatened to close the ware houses. I had a meeting with Respondent of 1st respondent Mrs Msaliwa who threatened to demolish buildings and 2nd Respondent also threatens to close the shops. Application is on Order 29 r 1 which gives this court to powers grant injunction in any matter or course before trial. Purpose of injunction is preserve the status quo of parties. Order 29 r 1 paragraph 12. Peoples to be applied are in the case of American Cyamion - 1975 Applicants summary. 1. Establish good and arguable claim 2. Not to determine merits of matter 3. Balance of convenience on court’s discretion. Applicants argues that they have an arguable claim as affidavit shows. Applicants’ shops have to be opened every day to supply farmers. If shops were closed there would suffer damage irreparable . Plaintiff makes an understanding as to damages on these grounds applicants seeks an injunction as prayed for. Applicants will make interparte application within days as cost may order to allow respondents to challenge the injunction. Court: Upon hearing counsel for the plaintiff and upon reading the affidavit of counsel Austin Msowoya on behalf thereof and certifying that the matter is indeed one of urgency this court grants the injunction prayed for in terms of the plaintiff’s prayer and on the undertaking by the plaintiff as to damages. The injunction being exparte, it shall subsist for 14 days and is subject to a further order of this court by way of an interparte application. Made in Chambers at Lilongwe this 5th day of July 2004. A. K. C. Nyirenda JUDGE CORAM: HON. JUSTICE NYIRENDA Counsel for the Plaintiff, Msowoya Counsel for the Defendant, Katuya Court interpreter, L. N. Msiska Date: 07/09/04 Time: 8.30am Katuya: Under order 28 we were to give 14 clear days to defendant but defendant has had only one clear day to hear O summons as regards summons for injunctions thee has been only one clear day to defendant’s which is why I seek courts directions under Order 28 and 29 RSC. Chombo: On legal matters I am not conversant. The matter starts way back. There has been different parties who have tried to bring this into the matter but nothing has happened. When we were served with injunction on 5th July acknowledge receipt in 11 days which I did. The 1st respondent has accepted quite. Looking at the silence of 1st Respondent I pray to court to consider my time was to have this matter resolved and looks at silence of 1st Respondent. Court: Parties with the court agree on adjournment of the case to 7th October, 2004. A. K. C. Nyirenda JUDGE CORAM: HON. JUSTICE NYIRENDA Counsel for the Plaintiff, Msowoya Counsel for the Defendant, Katuya/Chombo Court interpreter, Chulu Date: 07/10/04 Time: 8.30am Msowoya: Applicant’s tenants for property in Kasungu plot No. 124. The applicant in argument with 1ST Respondent leased those premises from 1st July 2002 renewable yearly next 2nd Respondent wrote to applicant claiming that there is the title holder of property thereby said rentals be paid to him. Applicant ruling that there would be sent from two parties sought the determination of who is the owner and in the interim obtained injunction to a vest the threats to seal property which would have prejudiced business of applicant. Injunction was granted subject to interparte summons until final determination of matter. Injunction was on order 29 RSC and also American Cyanamid Case. Objective is to preserve status quo on a balance of convenience. In the case at hand the applicant faced with the possibility of two suits and possibility of premises being sealed by either of the parties seeks the continuation of people to a vest losing out on bus. Also the applicant has no interest in the interpleader process but to clarify the position. As at present matter is unresolved and two respondents continue to make adverse claims to property. We seek that injunction be continued with. 1st Respondent: For reasons that will become clear in interpleader summons the position of 1st Respondent is that the injunction obtained by applicant to continued until I substantive matter is dealt with. 2nd Respondent, Chombo: As stated on 7th September, 2004 unlike the two parties I am lay in masters of law but looking this issue it was taken me 4 years trying to resolve it with 1st Respondent amicably. Several avenues have been taken, Adjudication Office, Lands Office, D. C. Kasungu and no response has been made by first Respondent although communications were made to them. I am not very impressed by their silence all these years although they have come to sight meetings called by God. Today is their first response. Their delaying pattern must discouraged by this court because it has cost me time and money to come to this point. I would have loved if this case be dealt with today. I travel from Kasungu and wish to claim costs so far for travelling. 20 Let the injunction continue until the matter is resolved. Court: Injunction to continue until the determination of the matter at hand. Signed A. K. C Nyirenda JUDGE 07/10/04 INTERPLEADER SUMMONS Katuya: 1st Respondent has not filed an affidavit but going by affidavit of Mr. Msowoya on behalf of applicant it is clear that there are facts in dispute between 1st Respondent and 2nd Respondent. Exhibit FW11 shows it all. The issues cannot be decided here and now because there would be intricate questions of evidence. In addition supposing sheds are on plots of 2nd and 1st Respondents who is entitled to receive the rentals? Who becomes the legal owner of the sheds. Supposing sheds were built by 1st Respondent and 2nd Respondent never contributed nothing, whether he can claim legal tile to them. O 17 r5 RSC gives court discretion to have matter fully tried if there be facts indispite. If there be in an issue it can be tried. In matter be stated and tried then a full trial as if by court is ordered. All I am saying is that from applicant’s affidavit this matter has a lot of issued to be properly determined. I therefore pray that court must order that this matter be tried in an ordinary way. Mr Chombo: I have made personal constraints with the people responsible for Chamwabvi several times nothing past. In fact by “FW 16” I wrote to the Financial Controller of Chamwabvi as of that date seeking resolution of this matter I have also made copies of all the correspondence in this matter to them all this time. The other problem is that where I live is where the 1st Respondent is and if 1st Respondent was serious about the matter being resolved communication started in 2002 but there has been no response from the 1st Respondent. Their luck of response is not surprising now. Court: It is clear to this court that the first respondent has negligently failed to respond to this action despite having been made aware of these proceedings well in good time. While the prayer for a trial is well within Order 17 such should not be used as a way to delay process at the expense of any of the parties to the proceedings. In all fairness to this matter the conduct of the 1st Respondent is that they must be condemned in costs of this action because even if the court were to order a trial the case would not at all take off because apart from starting for a full trial the 1st respondent has not responded to the issue in the matter. Strictly speaking the 1st Respondent should not even have been heard because really there is no basic upon which they could be heard in the absence of any response. In the matter of this matter the realing the implication it might have on the parties if only safe to allow a full resolution of the issues for which reason the 1st Respondent’s prayer is allowed the opportunity to respond to the action within the next 14days upon which trial of the matter will proceed by way of case started. Upon failure by the 1st respondent to so do the case will proceed for determination on the basis of what is now on record from the applicant and even 2nd Respondent. It is for all these reasons that the 1st respondent is also condemned his cost to date for both the applicant and the 2nd Respondent which must be paid on or before the date of hearing of the matter. -Costs be agreed or taxed by the Registrar soonest. Date of hearing to be determined before the court now. MADE in Chambers this 7th day of October, 2004 A. K. C Nyirenda JUDGE CORAM: HON. JUSTICE NYIRENDA Counsel for the Plaintiff, Msowoya Counsel for the 1st Defendant, Mussa Counsel for the 2nd Defendant, Nkhoma Court interpreter, Gonaulunji Date: 29/11/04 Time: 9.00am Mussa: As indicated matter was by way of interpleader by plaintiff main issue was of ownership of ware houses rented by plaintiff. There is affidavit by Chinula which says ware houses was confused because of conflicting advise from DC who said rent was to go to 1st defendant and then he also said to 2nd defendant leaving plaintiff in limbo. Secondarly para 4 says controversy is on ware house but by 1st Respondent and 2nd Respondent did not take any steps to stop constructing. In effect the 2nd Respondent had given assurance to 1st Respondent that ware house could be built. We can conclude that such silence meant 2nd Respondent allowed 1st Respondent to build ware house which reliance led to detriment on part of 1st Respondent therefore though not explicit in affected of Chinula this raised proprietary stopped. Doctrine says if one party knowingly encourages and another act, acquires to the action of that other party. 1st defendant acted vigilant to develop the land while 2nd Respondent knew of defendant choose to be silent. Should law allow someone to benefit from his slagish attitude. 1st Respondent acknowledges that the land was for the 2nd Defendant. But when it was being developed 2nd Respondent ought to have stopped such defendant. Since 2nd Defendant is insisting on return of land I adopt the prayer in our affidavit or in the alternative any other remedy to make well the expense incurred by the 1st Respondent with the acquiesce of the 2nd Respondent. Nkhoma: There is affidavit in opposition and skeletal arguments. Main issue raised is that whatever is attached to the soil is part of the soil I refer MVG 2 nd page of arguments 833 2 MW on this basis since 1st Respondent has concluded that land is that o 2nd Respondent as follows that 2nd Respondent is owner of ware house because they can not be separated from the land. Land is leased and only way can be disposed is for breach and of covenant see section 14 of Land Act. Here 1st Defendant is clearly not owner and has not acquired any title land is scares; this is not grand to evading land of others. Adverse poses R Act ie Title by Prescription to do so you need to apply to 4 and RES under 134(2). (1) (2) Peaceful occupation Application to the 1st Respondent has not applied for ownership. 1st Respondent has shown that they are not interested in ware house by asking that they be demolished- an indication that 1st Respondent is not interested in land. I pray therefore this court orders that ware house which are part of the Land belong to 2nd Respondent. Lease of the land was attached to affidavit is support of 2nd Respondent affidavit. REPLY Possibility of compensation should not arise because the 1st Respondent has used the land for all these years without anything paid to the 2nd Respondent. 1st Respondent will therefore be benefitting from this illegal conduct. That said if the court were of the view that 2nd Respondent pay something then the … of rent comes in from the time the 1st Respondent moved out of the land. Rental would have to be determined, to determine now much ought to be paid from the ware house. REPLY Political might of 1st Respondent was not substantiated - Ali Wake Attorney General Civil Case No 1355/93 - Gondwe vs Attorney General Civil Case No. 261/93 - Aboobalar vs Attorney General Arguments that use of political connections were not upheld by court- matters were still caught within Limitation Act. Court should look at section 22 of Deeds Reg. Act which says registration if Deed does not vest property- that i.e only evidence of title. It does not talk of good title. In the instant case there is affidavit of 2nd Respondent original lease – that is only evidence of title but did not vest property to 2nd defendant. CORAM: HON. JUSTICE NYIRENDA Counsel for the Plaintiff, Chilenga Counsel for the Defendant, Court interpreter, Gonaulinji Date: 29/06/06 Time: 9:00am Chilenga: I seek leave to appeal to the supreme court in terms of 0rder 331 SC of DPP Rules since decision as made in chambers. I pray accordingly. A. K. C. Nyirenda JUDGE 20/06/08 COURT RULING Leave to appeal is granted. Whether the appellant would adduce fresh evidence before the court of Appeal is a matter that would have to be determined by that court on an appropriate application by the appellant. Made in Chambers this 13th day of July, 2006 A. K. C. Nyirenda JUDGE 18