Lundu v Sumana, Group Village Headman Mbeta, Senior Chief Malemia and District Commissioner Nsanje (Misc. Civil Case 130 of 2017) [2018] MWHC 1306 (16 March 2018)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY MISCELLANEOUS CIVIL CAUSE NUMBER 130 OF 2017 BETWEEN: SIMEONE VITO ROSS LUNDU CLAIMANT AND PAULSUMANA pt DEFENDANT GROUP VILLAGE HEADMAN MBETA 2"d DEFENDANT 3rd DEFENDANT 4th DEFENDANT SENIOR CHIEF MALEMIA DISTRICT COMMISSIONER NSANJE ,I CORAM: JUSTICE M. A. TEMBO, Sitolo, Counsel for the Claimant Kapoto, Counsel for the Defendants Mpasu, Official Court Interpreter ORDER This is this Court' s order on the claimant' s application for continuation of an order of interlocutory in junction made under Order 10 rule 2 7 of the Courts (High Court) (Civil Procedure) Rules 2017 following an ex parte order of injunction that the claimant had obtained earlier herein. By the instant application the claimant seeks continuation of the order of injunction restraining the defendants from proceeding with the planned installation of the 1 st - defendant as village headman Lundu pending trial. Further, restrammg the 1 st defendant from assuming and using the name village headman Lundu 1 until trial. And lastly, restraining the 2nd and 3rd defendants from splitting Lundu village into two until trial. Both parties filed various sworn statements and skeleton arguments and were heard orally. The subject matter of the dispute herein is the position of village headman Lundu, held by the claimant's family, which the claimant alleges the defendants threaten to abolish without following the relevant prescriptions of customary law. The claimant claims that he is the heir apparent to the position of village headman Lundu. The 1 st defendant is allegedly illegally earmarked by the 2nd and 3rd defendant, to be installed as village headman Lundu 1 in Nsanje district and in the process to abolish the position of village headman Lundu. The 2nd and 3rd defendant, are Group village headman and Senior Chief respectively, and are the traditional authorities above the position of village headman Lundu. ,I The facts in this matter are disputed. The claimant asserts that he is heir apparent to the position of village headman Lundu which is under the jurisdiction of the 2nd and 3 rd defendant. Lundu village has always existed as such and was headed by Village Headman Lundu who is since deceased. Hence the claimant's claim that he is heir apparent to the position of Village Headman Lundu. In May 2016, the claimant was registered by the 2nd defendant with the 4th defendant as Village Headman Lundu. The claimant was however only been acting as Village Headman pending his installation as such. Meanwhile, in relation to succession to the position of Village Headman Lundu there was a dispute as to whether the 1 st defendant is from a different family to that of the claimant, namely, the Sumana family. The two made competing claims to the positi9n of Village Headman Lundu. In view of the dispute as to whether the claimant and the 1 st defendant belong to the same family, there were hearings involving the Sumana family and the claimant's .. family and these were presided over by the 3rd defendant as a Senior Chief in the exercise of his powers under the Chiefs Act. In the end, Senior Chief Malemia, the yct defendant decided in September 201 7 upon hearing both the claimant's and the pt defendant's families, to demarcate their respective villages so that the claimant's village be Lundu village and the pt defendant's village be called Lundu 1 village. This was done in the presence of both families who went through the boundaries together. The Senior Chief upon hearing both families determined that the claimant's family feigned the fact that they are related by blood to the 1 st defendant's family. The claimant's village is known as Lundu village. And it was decided by the yct defendant that the pt defendant's newly created village shall be known as Lundu 1 village. The 3rd defendant Senior Chief wrote to both the claimant's and the pt defendant's families to submit to the Senior Chief the name of a person they want to be their respective Village Headman who was to work with the Senior Chief in the demarcation of the two villages. From the sworn statem~nts, the whole of the claimant's case is against the use of the word Lundu 1 Village for the Sumana village. The claimant asserts that the yct defendant Senior Chief wrote a letter to the 4th defendant advising that the Lundu family had appointed the 1 st defendant to be Village Headman Lundu 1 after the demise of the last village headman Lundu. And that because of this the Senior Chief wants to abolish Lundu village and its position of Village Headman Lundu through the backdoor. The claimant is essentially challenging the creation by the Senior Chief of Village Headman Lundu 1 and claims that only his Village Headman can use the name Lundu. On their part, the defendants' case is that the Senior Chief has power to create new villages upon consideration of many factors including size of the existing village and conflicts. - And that in the present case it became necessary for the Senior Chief to demarcate the area of the Lundu and Sumana families in the original Lundu village in view of the succession dispute between the two families over the position of Village Headman Lundu. This Court is aware of the applicable law on interlocutory injunctions as submitted by both the claimant and the defendants. The court will grant an interim injunction where the claimant discloses a good arguable claim to the right he seeks to protect. The court will not try to determine the issues on sworn statements but it will be enough if the plaintiff shows that there is a serious question to be tried. See Order 10 rule 27 (a) Courts (High Court) (Civil Procedure) Rules 2017. The result is that the court is required to investigate the merits to a limited extent only. All that needs to be shown is that the claimant's cause of action has substance and reality. Beyond that, it does not matter if the claimant's chance of winning is 90 per cent or 20 per cent. See Mothercare Ltd v Robson Books Ltd [ 1979] FSR 466 per Megarry V-C at p. 474; Alfred Dunhill Ltdv Sunoptic SA [1979] FSR 337 per Megaw LJ at p. 373. If the claimant has shown that he has a good arguable claim and that there is a serious question for trial this Court then next has to consider the question whether damages would be an adequate remedy on the claimant's claim. See Order 10 rule 27 (b) Courts (High Court) (Civil Procedure) Rules 2017. Where damages at common law would be an adequate remedy and defendant would be able to pay them, an interlocutory order of injunction should be refused, irrespective of the strength of the claimant's claim. See Mkwamba v Jndefund Ltd [ 1990] 13 MLR 244. Where damages are an inadequate remedy the court will consider whether it is just grant the injunction. See Order 10 rule 27 (c) Courts (High Court) (Civil Procedure) Rules 2017. This will involve weighing whether the balance of convenience or justice favours the granting of the interim order of injunction. See Kanyuka v Chiumia civil cause number 58 of 2003 (High Court) (unreported); Tembo v Chakuamba MSCA Civil ·Appeal Number 30 of2001 both citing the famous American Cynamid Co. v Ethicon Ltd [1975] 2 WLR 316. In determining the instant application for injunction, this Court must determine whether on the sworn statements the claimant has disclosed a triable issue. The claimant's case is that the 3rd defendant Senior Chief demarcated the Lundu village wrongfully, unlawfully and without proper adequate consultation with the claimant's family. And that the name Lundu cannot be used to describe the pt defendant's village since the pt defendant's family is not related to the claimant's family that holds the name Lundu village otherwise that threatens to destroy the Lundu village and its position of Village Headman Lundu. This Court has carefully sifted through the many competing facts and notes that it is quite clear that the demarcation of the Lundu village into Lundu village for the claimant and Lundu 1 village for the 1 st defendant was done by the 2nd defendant Senior Chief after hearing both sides and after going through their boundaries in their presence. As submitted by the defendants, it cannot therefore be correct that the 2nd de'rendant Senior Chief demarcated the village herein into two without proper consultation with the claimant's family or other stakeholders. The 2nd defendant Senior Chief has power to appoint village headmen to support his work as per section 9 ( 1) of the Chiefs Act. It cannot therefore be correct for the claimant to assert that the Senior Chief acted wrongfully and .unlawfully in this matter. The claimant also claims monopoly to the use of the name Lundu village and vehemently protests against the Sumana family's new village being called Lundu 1 village. There seems to be no legal basis for such a protest and claim. Both the Sumana and Lundu family were under the Lundu village which has been demarcated in two. There also appears to be no basis for the claimant's allegation that the appointment of the 1 st defendant as Village Headman for Lundu 1 village means that this will - threaten the position of Village Headman Lundu. It must be noted that Lundu 1 is a separate and distinct village from Lundu village of the claimant's family. In the end, this Court agrees with the defendants that the applicant has not shown a triable issue in this matter. It is clear on the affidavit evidence that there was consultation and that the Senior Chief properly exercised his powers under the Chiefs Act. In the circumstances, the injunction obtained ex parte by the claimant is accordingly discharged. Of course, damages would not be an adequate remedy in this matter. And the question whether the injunction should be continued or not would have turned on whether it was just in the circumstances if there was triable issue. In deciding whether it is just to grant the order of injunction sought, this Court will therefore consider where the balance of convenience lies in this matter. As correctly noted by tge parties, most injunction applications are determined on the balance of convenience. In American Cyanamid Co. v Ethicon Ltd [1975] AC 396 Lord Diplock said, at p. 408: ... it would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them. These will vary from case to case. In other cases, such as Cayne v Global Natural Resources pie [1984] 1 All ER 225, the courts have insisted that it is not mere convenience that needs to be weighed, but the risk of doing an injustice to one side or the other. Lord Diplock in American Cyanamid Co. v Ethicon Ltd said the extent to which the disadvantages to each party would be incapable of being compensated in damages is always a significant factor in assessing where the balance of convenience lies. The finding of this Court is that the balance of convenience lies in favour of declining to continue the injunction sought by the claimant. The status quo before the ex parte order of injunction is that the Lundu village was split into two by the Senior Chiefs exercise of his powers under the Chiefs Act. The newly created Lundu 1 village requires leadership in the office of village headman. - • \. For the Lundu village the claimant is exercising the authority of village headman albeit in an acting capacity pending an installation ceremony. It will be unjust to deny the Lundu 1 village a village headman to lead its affairs when the claimant's village is so led by the claimant. In the circumstances, this Court declines to continue the order of injunction herein. This Court is mindful that this matter can and should be quickly escalated to trial so that the issues at hand are resolved without undue delay. This is given the fact that now matters are assigned to specific judges upon commencement. The injunction is accordingly discharged. The defendants shall have an inquiry as to damages before the Registrar in view of the injunction that was obtained by the claimant on the eve of the installation of the 1 st defendant at village headman Lundu 1. Those damages shall be paid by the claimant. There was an issue to do with the mode of commencement raised by the cla~mant to the effect that the claimant should have commenced this matter by way of judicial review given that the matter involves a challenge to the exercise of power by the 3rd defendant under publie law, namely, the Chiefs Act. The claimant's explanation was that he was more interested in stopping the installation of the 1 st defendant and that the matter herein involves public and private law. This Court fails to see the private element of this case. The matter involves a challenge to the 3rd defendant's exercise of his powers under public law, namely, the Chiefs Act. In O'Reilly v. Mackman [1983] 2 A . C. 237; [1982] 3 All E. R. 1124, HL it was held that where a person seeks to establish that a decision of a person or body infringes rights which are entitled to protection under public law he must, as a general rule, proceed by way of judicial review and not by way of an ordinary action whether for a declaration or an injunction or otherwise. If a person commences an ordinary action where he should have applied for judicial review, the action will be struck out by summary process. It was further held per Lord Diplock at 285/1134 that - .. .it would . .. as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of 0.53 for the protection of such authorities. This Court agrees with the defendants that proper mode of commencement in this matter should therefore have been by way of judicial review under Order 19 rule 20 Courts (High Court) (Civil Procedure) Rules. See also State v Privatisation Commission and another ex parte Mwamondwe and another [2005] MLR 450 where the Court stated that the decision maker shall always be a public authority whose decision is being challenged by way of judicial review. For that reason, the instant proceedings are irregular and are set aside for being irregular as provided in Order 2 rule 3 (a) Courts (High Court) (Civil Procedure) Rules. And that also leads to the refusal to continue the injunction on the basis that it is premised on such irregular proceedings that have been set aside. Costs are for the defendants. Made in chambers at Blantyre this 16th March 2018. M. A. Tembo JUDGE 8