Nyirenda v Village Headman Chakwera and Others (Civil Cause 10 of 2018) [2022] MWHCCiv 62 (30 May 2022)

IN THE HIGH COURT OF MALAWI CIVIL DIVISION MZUZU DISTRICT REGISTRY CIVIL CAUSE NO. 10 OF 2018 BETWEEN HEATH NYIRENDA (VILLAGE HEADMAN MANGULU (on behalf of himself and Mangulu CITIZENS) ... 2... eee eee eee cee ee reece ee nnereecec ren eeecneeeeeeeseesesaeaeeaeeaeeeeeeee ena reess CLAIMANT AND VILLAGE HEADMAN CHAKWERA AND HIS SUBJECTS ..........seeeeeteeereere DEFENDANT CORAM: Honourable Justice T. R. Ligowe P. Ngwira, Counsel for the Claimant C. Chithope Mwale, Counsel for the Defendant F. Luwe, Court Clerk J. N. Chirwa, Court Reporter JUDGMENT Ligowe J. 1. There has been a long standing dispute between the Claimant and the Defendant in this case over land and a village situated in the area of T/A Kilupula in Karonga which we hope to be resolved by this judgment. Statement of claim 2. The Claimant claims to be Village Headman Mangulu and that he and his subjects, in or about 1996 had a dispute over the boundary of their village with that of the Defendant. That consequent to that dispute the Defendants invaded the village of the Claimants and destroyed crops and other property including houses. The Claimant took the matter to court in 1997 and the court found the Defendant liable for malicious damage and ordered compensation to the tune of K21 240 which has not yet be paid. The dispute regarding the boundary was taken before the court of T/A Kilupula which ruled that it be the M1 road and that neither of the parties should ever cross over the boundary to their counterpart’s village. The decision was upheld by the District Commissioner at Karonga. The Defendant has however been crossing the boundary and causing havoc like slashing crops, demolishing houses and beating people in the Claimant’s village despite warnings from Karonga First Grade Magistrate’s Court against the same. He therefore in this action claims, (a) entitlement to the land and the village fully; (b) that the Defendants are in possession of the same illegally; (c) an order that the Defendant should vacate the land/ village for good; and (d) costs of the action. Defence In his defence the Defendant admits there being a land dispute between him and the claimant but that it started around 1994 when the Claimant purportedly seceded from the Defendant’s village. He however avers that the purported village of the Claimant is unlawful and invalid and as such, the Claimant is not a lawful Village Headman and his alleged Village Headman-ship has always been contested and formally unrecognised. The Defendant further avers that on or about 19" June 1995, the District Commissioner for Karonga dismissed the Claimant’s claims that he had formed a valid village and advised that people had to be allocated land regardless of lineage or location in the Defendant’s village. The Defendant admits having been ordered to pay compensation of K21 240 but disputes that crops were destroyed and that it was not paid. He avers that it was the property of one person which was destroyed and not because of any land dispute but, as the court held, because the Claimant and his subjects were not participating in the MASAF Project which was taking place in the area. The Defendant further avers that the High Court in its order for the compensation of K21 240 acknowledged that it was not called to decide who the Village Headman was or not and not even to decide any issue of land boundaries ar land rights. The Defendant disputes the claim that T/A Kilupula resolved the issue of the boundary between the two villages and avers that the Claimant’s secession claims have been challenged and dismissed by all relevant authorities, including the office of the District Commissioner for Karonga and Ministry of Local Government. The Defendant disputes having been crossing the boundary to the Claimant’s village to cause any havoc and avers that the letter of the First Grade Magistrate at Karonga was not a court order, there was no contempt of any court order, a Subordinate Court has no power to enforce an order of the High Court, and that the Magistrate erroneously captured points which were not in issue and/or decided by the High Court. The Defendant further avers that all persons who use and occupy pieces of land in his village and the area the Claimant claims to be his village have property rights therein which existed before the Claimant’s secession and that some persons actually have court judgments in their favour for continued use and occupation of their pieces of land. Counterclaim Further to the defence, the Defendant has a counterclaim in which he refers to his defence and affirms that long time ago there was only Chakwera Village which was created in the 1800s, belonging to Village Headman Chakwera, which covers even the area the Claimant claims to be his village. He affirms that it is the claim for secession which is the basis for the land disputes concerning the Claimant and his followers and the Defendant and his subjects from around 1994 up to now. The Claimant’s Village Headman-ship is unlawful and invalid since it lacks any legal backing and has no sanction and recognition of the Defendant and relevant authorities. He further states that even if it were lawful and valid, it would not take away land rights of the Defendant and his subjects and/or other Malawians in any pieces of land over the area in issue because every person has the right to acquire and not to be arbitrarily deprived of property anywhere in Malawi even in an area which is not his or her home village. Wherefore the Defendant prays for: (a) dismissal of the Claimant’s claim in its entirety; (b) a declaration that the Claimant is not a lawful and valid Village Headman; (c) a declaration that the area the Claimant claims to be his village is and remains to be the village of the Defendant, Village Headman Chakwera:; (d) in the event that the Claimant is deemed to be a valid and lawful Village Headman over the land in dispute, a declaration that his Village Headman-ship does not take away existing land rights of the Defendant and/or his subjects or other Malawians on any pieces of land in the land in dispute purportedly under the Claimant because every person has the right to acquire and not to be arbitrarily deprived of property, including land, anywhere in Malawi even in an area which is not his/her home village. (e) an order of permanent injunction restraining the Claimant, his servants and agents from interfering with the exercise of land rights including use and occupation of the land in dispute by the defendant and/or his subjects. (f) costs of the action. Exemption from mediation After the close of the statement of case, the matter should have ordinarily gone for mediation but the parties applied for the same to be exempted. Order 13, rule 1 (1) of the Courts (High Court) (Civil Procedure) Rules provides that subject to sub rule (2), all proceedings shall first go through mediation in accordance with the Order. Sub rule (2) allows that mediation should not apply to proceedings among others, where the court, in its discretion, so orders. The Defendant applied for the matter to be exempted from mediation. The Defendant doubted if the mediation would be comprehensive enough to tackle all issues arising in the matter. His view was that the dispute centres on chieftaincy (village headman-ship) and land rights of numerous people in the two villages. It has existed since 1996 and is yet to be resolved, despite various attempts by courts and the Karonga District Council and Chiefs. He also doubted if mediation was going to resolve the issues quicker than trial. The Claimant contended that issues of chieftaincy rights are such as the courts need to be slow to interfere, and that the concerns raised by the Defendant would actually be dealt with in mediation. Having carefully considered the arguments in view of the pleadings for both parties, my impression was that the underlying factor in this case is the manner in which Mangulu Village came into place. Chiefs and the office of the District Commissioner had ever been involved in trying to resolve the matters, but their efforts yielded nothing. It is the same people I would need to mediate over the matter. Considering the complexity of the issues, I doubted if mediation would have finished within the period prescribed by the rules. I also agreed that courts should be slow to interfere with matters of chieftaincy and customary land, but considering that those who would have helped had tried and the dispute still subsisted, I was convinced to exempt the matter from mediation and go straight to trial. Issues for trial 10. The issues for trial in this case are: 11. LZ. (a) Whether or not the Claimant is a lawful and valid village headman. Whether or not there was lawful secession and formation of Mangulu village within the jurisdiction of Chakwera village. (b) Whether or not the Defendants are encroachers/trespassers on pieces of land the Claimant claims right to. Alternatively, whether or not the Defendants are the ones who have property rights, including the use and occupation of the pieces of land the Claimant claims. (c) Whether the Claimant or the Defendant is entitled to the reliefs they seek in their pleadings. Evidence at trial For the Claimant’s case, I heard evidence from Mr Heath Nyirenda claiming to be Village Headman Mangulu. Ms Chaney Gweleweta Nyirenda in her capacity as Group Village Headman Gweleweta. Mr Gibson Kaonga, an advocate to Group Village Headman Gweleweta. Mr Kennan Mkandawire, an advocate to Village Headman Mangulu and Mr William Mwangolera Mwakikunga in his capacity as T/A Kilupula. For the Defendant’s case, I heard evidence from Mr Kagwigwi Kumwenda in his capacity as acting Village Headman Chakwera at the time the present action was commenced, Mr Arnold Ngulube, an adviser and advocate to Village Headman Chakwera, Mr Lackwell 13. 14. Mwangalaba, another advocate to Village Headman Chakwera, and Ms Talina Gideon Gondwe an ordinary member of Chakwera village. According to Mr Heath Nyirenda, born in 1936, Mangulu village dates back to the 18" Century founded by Dingayeni Nyirenda Mangulu and the place was the present Chakwera village. One of Dingayeni Nyirenda Mangulu’s daughters, Jane Nyirenda married Mtenje Kumwenda from the Chakweras. Mtenje Kumwenda was also an advocate to Dingayeni Nyirenda and used to represent him at many official functions. Later, without the sanction and knowledge of Dingayeni Nyirenda, Mtenje Kumwenda started using his own name on official documents including the Census Book. There was indicated the name, Chakwera Mtenje on it. So, the village came to be known as Chakwera. Dingayeni Nyirenda was furious with his son-in-law and after discussions decided to leave the stolen chieftaincy and the land and asked to be allocated another land. After his death Jonas Mangulu Nyirenda his son took over leadership. Jonas moved the family to the impugned Mangulu village. He then started asking to be recognized as a Village Headman at the new location around 1951, but the then T/A Kilupula, Mwendawira advised he would be recognized upon reaching a number of 30 people in the village. He however was granted the mandate to oversee the affairs of the new settlement and distributed land to families and individuals like Chembe Mfune, Edwin Mkandawire, Sangalawe, Mwandeweres, Ng’ ong’nyo Mussa, Luhanga and others. We can analyse the above history that it presupposes that the current Chakwera village was initially known as Mangulu village. There is however no indication of when the change started. 18" Century is the period from January 1701 to December 1800 and that is when Dingayeni Nyirenda Mangulu founded the village. It appears though that it was during Dingayeni’s life time that Mtenje Kumwenda made the change. There is mention of a Census Book, giving the impression that there are records to that effect and I thought the witness would have brought a Census Book of the period before the name of the village was changed and another after it was changed as prool for the fact that Mtenjc Kumwenda changed it. One important point to note is that Dingayeni Mangulu Nyirenda asked to be allocated another land. If Dingayeni was the actual Village Headman that time and Mtenje 13. 16, i 18. Kumwenda was his advocate, I doubt if it would have been a matter of him asking to be allocated a new piece of land within his own village. It also appears that Dingayeni died before the family moved to the new location. His son Jonas Mangulu Nyirenda is the one who materialised it, but we are not told when that was. This new location however seems to have continued to be part of the village they came from, as it was around 1951 when Jonas Mangulu Nyirenda started asking for it to be recognized as a separate village. The fact that Chief Kilupula then, advised that they would only be recognized after attaining 30 people in the settlement, also indicates that the people continued to be part of the village they came from. Mr Heath Nyirenda further testified that Jonas Mangulu Nyirenda died in 1969 before attaining the required number of people in his village. That his son, Samuel Mangulu Nyirenda took over up to 1992 when he also died and, Meston Mangulu Nyirenda, younger brother to Samuel, took over. And that Meston Mangulu Nyirenda was recognized as a Village Headman and given a Census Book on 23" December 1994. This means that until 1994, Mangulu village had always been part of Chakwera village. Mr Heath Nyirenda further testified that Village Headman Chakwera disputed the recognition of Mangulu village and claimed it belonged to Chakwera village. That the then Traditional Authority, Raphael Kilupula made a demarcation separating the two villages with the M1 road as the boundary, Chakwera on the lower side closer to the lake and Mangulu on the upper side. That later, Ledson Mangulu Nyirenda, younger brother to Meston, took over leadership and was given his own Census Number and recommended as Village Headman by the then Traditional Authority, Lackson Kilupula Mwanjasi. And that it was upon Ledson’s death that Heath Nyirenda took over and he has the Census Book and Number and he receives honoraria from Government as a recognized Village Headman. On this very point, Ms Chancy Gweleweta Nyirenda testified that Mangulu village was recognized in 1994 by her predecessor Mjulu Nyirenda, and the Village Headman was dully approved and installed by the then T/A, Raphael Kilupula. She further testified that in 2012 Paramount Chief Kyungu also intervened and clearly demarcated the M1 road as the boundary between the two villages. That the two villages manage their affairs separately, they have separate Census Books and the Village Headmen receive honoraria from Government separately. She exhibited a letter from Group Village Headman Gweleweta to the Magistrate at Iponga Magistrate's Court advising that, regarding the dispute between Village Headman Chakwera and Village Headman Mangulu, the land belonged to Mangulu village. She also exhibited another letter from T/A Kilupula to the First Grade Magistrate at Karonga, dated 3" September 2004, regarding the same dispute, reporting that he had called the two Village Headmen in the presence of Group Village Headman Gweleweta and the Police Officer in charge to advise Village Headman Chakwera to move away from Mangulu village. She further exhibited a letter by Hamilton H. J. Nyirenda as Group Village Headman Gweleweta to “whom it may concern,” dated \* June 1998, excusing himself from attending proceedings at the High Court as a witness due to sickness, but made a written statement showing that it was his grandfather who appointed Mr Mangulu as Village Headman after they left Linga where they were living after the Kambondoma war. Mr Mangulu being illiterate, asked his son in law, Mr Mtenje Kumwenda to be acting as the Village Headman. After Mangulu and Mtenje died, Mangulu’s son, Kumeka Nyirenda discovered that Mtenje was using his own name, Chakwera, for the village. He got annoyed and brought a complaint to Halmiton H. J. Nyirenda’s father, James Gweleweta, the Group Village Headman then. Noting that it had taken so long for Mangulu to discover the problem, the Group Village headman ordered the Chakweras and the Mangulus to share the village. The lower part to be for Village Headman Chakwera and the upper part to be for Village Headman Mangulu. The statement further shows that there were misunderstandings between Mangulu Kumeka and Gibson Chakwera and the case was referred to Mtemi Joseph Kilupula and the Chief ruled that Mangulu would be given a Census Book as soon as he obtained 33 tax payers in his village. He made the boundary between the two villages and people lived peacefully until Kumeka Mangulu and Gibson Chakwera died. The statement goes on to show that Group Village Headman Lighton Gweleweta also ruled in favour of Mangulu but Chakwera still resisted and the matter was referred to the then Chief, Raphael Kilupula who also ruled likewise following his father Chief Joseph Kilupula’s ruling, as it was based on the 19, 20. ZI. recommendations of Group Village Headman James Gweleweta. Finally, in the statement Hamilton H. J. Nyirenda states that he would do just like his grandfather, his father and his brother on the matter. In cross examination, Ms Chancy Gweleweta Nyirenda testified that she was born in 1954 and apart from her own knowledge, she got the history from her parents. She reiterated that Mangulu village was established in 1994, She expressed no knowledge of a letter from the District Commissioner, Karonga to the Regional Administrator with copies to Chief Kilupula, Group Village Headman Gweleweta, Village Headman Chakwera and Meston Mangulu, dated 19" June 1995, regarding the same dispute, advising that it had finally been resolved on 10% June 1995 that Chakwera village remains one and Mangulu’s plans to secede were challenged and dismissed so that Village Headman Chakwera could allocate gardens to families without any limitations. She also admitted that a valid traditional ruler should be recognized by the District Commissioner and Ministry of Local Government. She expressed no knowledge of a commission of inquiry into the dispute chaired by Paramount Chief Kyungu and no knowledge that the Commission of inquiry established that Mangulu village is not recognized. She also admitted that long ago, the whole area comprising Chakwera village and the impugned Mangulu village was under Chakwera. Mr Gibson Kaonga confirmed the testimony of Ms Chancy Gweleweta Nyirenda. What he added was that when the T/A, Raphael Kilupula demarcated the boundary between the villages, he was beaten almost to death by people from Chakwera village. He further added that this old dispute resurfaced upon the decision of the Court in the case of Wilson Viyuyu v. Newire Viyuyu in favour of Ngwire Viyuyu of Chakwera village. The people of Chakwera village interpreted the judgment as meaning that all the land comprising Mangulu village belongs to them. He also added that the findings of the commission of inquiry had not been accepted by most people because it mainly inquired from people of Chakwera village who had no history of the matter. In cross examination Gibson Kaonga testified that he was 50 years old, as he was born in 1970. He confirmed there having been a commission of inquiry in 2010 instituted by the Bas 24, Ministry of Local Government and Rural Development concerning the dispute between the two villages and that the villages have remained separate despite the commission’s findings. He was involved in the establishment of Mangulu village and installation Village Headman Mangulu by T/A Kilupula in 2003. Mr Kennan Mkandawire exhibited the Census Book for Mangulu village written by hand and testified that he is the one who collects honoraria for Village Headman Mangulu from Karonga District Commissioner’s office under employment number 255213. In cross examination he admitted the Census Book for Chakwera village is typed and is entitled “Tax Payers Roll.” He explained in re-examination that at the time they needed a Census Book for Mangulu village, the office of the District Commissioner was not issuing them and so, the secretary for Mangulu village had to devise one. He further explained that no payslips are given for the honoraria but they sign in a book upon receipt of the money. He last collected K5 000 in December 2019. . Mr William Kalongolera Mwakikunga is the current Traditional Authority Kilupula. He confirmed that Mangulu village and its chieftaincy were recognized in 1994 and exhibited a list of Village Headmen in the area of his jurisdiction. It includes Heath R. M. Nyirenda as Village Headman Mangulu under Principal Group Village Headman Gweleweta, and indicates his employment number as 255213. He exhibited a letter of 9" March 1997 from the then Traditional Authority Mwakaboko who was responsible for the area, submitting a list of appointed Village Headmen to the District Commissioner for Karonga and the list included Meston Mangulu for Mangulu Village. He also exhibited a letter dated 29"" March 2003 from Karonga Magistrate’s Court in a bid to enforce the judgment of the High Court in Civil Cause No. 19 of 1997 between the two Village Headmen, advising his predecessor and the District Commissioner to ensure that Village Headman Chakwera desists from encroaching into the jurisdiction of Village Headman Mangulu. In cross examination the Traditional Authority was shown the letter from the District Commissioner dated 19" June 1995 stating that Mangulu’s claims to secede had been dismissed and his reaction was that he could not appreciate that the District Commissioner 10 LD 26. ee found that Mangulu village was not recognized. He further testified that his office has never paid compensation to Chakwera village in respect of the creation of Mangulu village. He admitted that ifa new Chief were to be established for part of the area under his jurisdiction, he would have to be consulted. In his testimony Mr Kagwigwi Kumwenda confirmed that around 1995, Meston Mangulu Nyirenda, who was then an advocate to Gibson Kumwenda Chakwera asked from Group Village Headman Gweleweta for part of Chakwera village to be his own village, but when the Chakweras got news of the request they protested because they had not been consulted and Mangulu was not a member of their royal family. Meston Mangulu Nyirenda then went to Traditional Authority Kilupula who gave him part of Chakwera village or land without consent of the Chakweras and without authority of the Ministry of Local Government and Rural Development and Karonga District Council. Mr Kagwigwi Kumwenda exhibited a circular from the Secretary for Local Government to all District Commissioners dated 23" June 2003, suspending installation of new Village Headmen and Group Village Headmen, as most of them had been installed without following proper procedures stipulated in the Chiefs Act and thus disturbing customs on succession of chiefs and increasing the wage bill for chief’s remuneration. The circular made reference to another circular issued on 19" December 1997 on the same subject. Mr Kagwigwi Nyirenda also testified that around 1995/96 Meston Mangulu started claiming rights over part of Chakwera village as his village and grabbed land which belonged to subjects of Chakwera village and distributed it to his family members and followers. In 1996 Mangulu and his followers shunned from participating ina MASAF Project in Chakwera village and this vexed Village Headman Chakwera and his subjects that they invaded Mangulu’s house and destroyed some property. That was the subject matter for the case in the High Court in which Village Headman Chakwera was ordered to pay the compensation of K21 240 which he paid. 11 28. Mr Kagwigwi Kumwenda further testified that in 1995, following a complaint by the Chakwera family to the District Commissioner for Karonga against Mangulu’s claims, the District Commissioner after hearing from all relevant parties, including Village Headman Chakwera, Meston Mangulu Nyirenda and Chief Kilupula, held that Chakwera village remained one village and dismissed Mangulu’s plans to secede. He exhibited a memorandum to that effect from the District Commissioner to the Regional Administrator with copies to Chief Kilupula, Group Village Headman Gweleweta, Village Headman Chakwera and Meston Mangulu Nyirenda. He also exhibited a letter from the Acting District Commissioner for Karonga to Chief Kilupula with copies to Police Officers in charge at Karonga and Kaporo dated 15" February 2007 advising that people from Chakwera village be allowed to cultivate freely without any obstacle from people of Mangulu until the issue of chieftainship is resolved by the courts. He also exhibited a letter dated 12" October 2008 from Chief Kilupula to Village Headman Chakwera asking him to nominate five people of his village “to be in the committee which will be allocating farmers in the newly formed scheme” per the request from the District Commissioner’s office. He also exhibited a letter from Village Headman Chakwera to the District Commissioner for Karonga dated 27" October 2008 listing five names to be in the “committee to restore land to its owners” (kuwezgela minda kubenecho ba munda). And, he exhibited minutes of an extra ordinary meeting held on 9° December 2008 between the District Commissioner for Karonga and Chief Kilupula on the position of the land scheme between Acting Village Headman Mangulu and Chakwera. The meeting was attended by the District Commissioner, Chief Kilupula, Acting Village Headman Mangulu and H. M. Nyirenda and Canaan Mkandawire as his subjects. It was convened because Acting Village Headman Mangulu had not submitted his five names required to be in the committee to restore gardens of Chakwera villagers to their owners per the decision of the chiefs council of June 2008. It is recorded in the minutes that Acting Village Headman Mangulu had not done it because after the chiefs’ council meeting, Village [leadman Chakwera told his subjects that the council had resolved to give the land to Chakwera and therefore he had jurisdiction over it, and even organised events to celebrate their victory. Yet, according to Mangulu it was in sharp contrast to the resolution of the chief's council. Further, he was afraid that death and violence would occur as was in February 2007. It is further recorded 12 29. 30. in the minutes that the District Commissioner reminded Acting Village Headman Mangulu that the letter of February 2007 stated that Chakwera too had a portion in the proposed scheme and was surprised that it was difficult for Acting Village Headman Mangulu to implement the agreement of the chiefs’ council. It is also recorded in the minutes that the meeting resolved that Chief Kilupula would convene a meeting with Chakwera and Mangulu to iron out the concerns and move forward in forming the committee to administer the land in dispute. Mr Kagwigwi Kumwenda testified however that the initiative yielded nothing. Mangulu still failed to return the grabbed pieces of land. Mr Kagwigwi Kumwenda also exhibited a letter from the District Commissioner for Karonga to the Secretary for Local Government and Rural Development with copy to Village Headman Chakwera, dated 26"" August 2009, in response to the Secretary’s request for the District Commissioner to investigate the issue of the confiscation of land belonging to people of Chakwera village. The letter explains that the late Chief Kilupula subdivided Chakwera village without the consent of Village Headman Chakwera and without considering its implications on law and order. Chakwera complained to the office of the District Commissioner and his office did not submit Chief Kilupula’s proposal to subdivide the village to the Secretary for Local Government for approval. But the community and Mangulu himself regard themselves as a bona fide village. As a result, Mangulu confiscated all gardens belonging to Chakwera’s sympathisers in 1995. The District Commissioner who wrote the letter, G. T. Macheka, reported that since he reported at Karonga, he had held several meetings with the traditional leaders but failed to convince Mangulu to surrender the land to the owners. The last time was on 20" July 2009 when Paramount Chief Kyungu, Chief Kalonga, Ag. Chief Mwakaboko and Chief Mwirang’ombe resolved to refer the matter to the office of the Secretary for Local Government after Mangulu’s team threatened to cause bloodshed if forced to vacate from the gardens. Mr Kagwigwi Kumwenda further testified that in 2010 the Government was forced through the District Commissioner for Karonga and the Ministry of Local Government and Rural Development, to institute a commission of enquiry chaired by Paramount Chief Kyungu, the top most traditional ruler in Karonga, comprising officers from Karonga District 13 Bhs Council, and Traditional Authorities. That the commission noted that history showed that Mangulu was never a village headman but was an advocate to Village Headman Chakwera. The Commission resolved that Mangulu Village and headman-ship should not be recognized and the land grabbed should revert to the owner, Chakwera. He exhibited a document entitled, “Revelations of the Commission of Inquiry instituted over the Chieftaincy of Chakwera and Mangulu wrangle and land dispute through the District Commissioner’s office.” The document shows that the commissioners and board members present were: Paramount Chief Kyungu - Chairman, T/A Wasambo — Karonga Sounth, T/A Mwirang’ombe — Karonga Nyungwe, T/A Mwakaboko — Karonga North, T/A Kalonga - Kalonga, K. Nkhata — Lands Officer Karonga, P. Msowoya — Lands Representative D. C. Officer, and H.&. Manda — Secretary. The document shows that after receiving the complaint from Chakwera Kumwenda, the commissioners received testimony from Kingford Chifwamaso Chifwenge, James Luhanga of Chakwera faction and from Ellah Mangulu Nyirenda. In short their finding was that Mangulu village had not been properly founded and its village headman not properly installed, and so, they should not be recognized and the whole area should maintain to be Chakwera village. Mr Kagwigwi Kumwenda further testified that the District Commissioner and the Ministry of Local Government and Rural Development endorsed the resolutions of the commission of inquiry as shown by a letter dated 15" September 2010 from the Secretary for Local Government and Rural Development to the District Commissioner, Karonga advising the District Commissioner to convene a meeting with both groups to bring the judgment passed to their attention in the presence of the Police Officer in Charge and other senior people in the District. He also testified that the same was done on 22"4 November 2010 but Mangulu did not turn up for the meeting. He exhibited minutes which show that the meeting resolved that T/A Kilupula and Group Village Headman Gweleweta would inform Mangulu about the position of the Ministry on the matter, a task force of neutral elders from both sides would be formed to be responsible for relocating gardens to their original owners from both sides by 27" Aucust 2010, a period of two months, from 22° November 2010 to 224 January 7011, awed theo allowed for affect preagpte iar pet roently hor mowe., ariel thar dhe Police Officer in Charge at Kaporo would ensure maximum peace (security) at every stage 14 32. 33. 34. of the process. Mr Kagwigwi Kumwenda further testified that Mangulu still remained adamant to comply up to now. Mr Kagwigwi Kumwenda also testified that meanwhile, a number of land disputes stemming from the wrangles over the secession and establishment of Mangulu village have ended up in the courts finding in favour of the subjects of Chakwera village. He referred to the case of Ngwire Viyuyi and Wilson Viyuyi registered as Civil Cause No. 247 of 2016 in the Magistrate’s Court at Ngerenge and the case of Kenani Mkandawire (Village headman Mangulu v. Gideon Gondwe, Civil Cause No. 16 of 2017 (Mzuzu Registry) (unreported). The testimony of Mr Arnold Ngulube mostly confirmed that of Mr Kagwigwi Kumwenda. He further exhibited a Tax Payers’ Roll for Chakwera village for the period between 1983 and 1993 showing that Meston Mangulu Nyirenda was a member of that village. He also emphasized that the Tax Payers’ Roll represents a Census Book duly collected from the office of the District Commissioner and not the one the people of Mangulu village made by themselves. When cross examined he emphasized that the people of Chakwera village protested the secession of Mangulu village from their village in 1995/96 because: Mangulu was not a member of the Chakwera royal family; it would have meant Chakwera village losing part of their land; and the proper process was not followed. He also clarified regarding the people who were examined by the commission of inquiry instituted by the District Commissioner in 2010 that Chakwera Kumwenda was McBean Jeromy Kumwenda Chakwera, the Village Headman that time, James Luhanga was one of the subjects of Chakwera village, Ellah Mangulu Nyirenda was a daughter of the Mangulu family married to Chifamaso Luhanga, and she was born, lived and died in Chakwera village. Mr T.ackwel Mwangalaba testified that he was 74 years old and he was together with Steven Kondowe and Meston Mangulu as advocates to Gibson Kumwenda Chakwera in his time as Village Headman Chakwera. He further testified that when the Chakwera family learnt that Meston Mangulu wanted to form his own village, they refused. He and the other 15 39, 36. advocates to Village Headman Chakwera were therefore surprised that Traditional Authority Kilupula came to Chakwera village and insisted to divide it. Ms Talina Gideon Gondwe is a member of Chakwera village whose parents had a piece of land within the area the Claimant now claims to be his village. She spoke about the case of Kenani Mkandawire (Village Headman Mangulu) v. Gideon Gondwe, Civil Cause No. 16 of 2017 (Mzuzu Registry) (unreported) that after the death of her father, Wilson Gondwe and when his brother Gideon Gondwe left for Tanzania, Village Headman Mangulu took away the land from the rest of her family, but the court ordered it to be given back. Analysis and determination on the land issues This far, it is very important to note that the Claimants are seeking full entitlement to the land in Mangulu village because, in their view, the Defendants trespassed and are in possession of the same illegally, and so, this court should order the Defendants to vacate for good. This claim is based on the fact that the village was recognized in 1994 and Chief Kilupula demarcated a boundary between it and Chakwera village. Yet the Defendants have been crossing the boundary and causing havoc like slashing crops, demolishing houses and beating people in the Claimant's village. . At the very beginning of this action, the Claimant brought an application for interlocutory injunction that the Defendants be restrained from trespassing cultivating or invading the Claimants’ village and be compelled to obey the judgment of Traditional Authority Kilupula and that of the District Commissioner, until final determination of the matter or further order of the court. The ruling of this court dismissing that application helps in appreciating the Claimants’ claim in this matter. The relevant part said: “Counsel for the Defendants has made reference to the judgment in Kenani Mkandawire (Village Headman Mangulu) v Gideon Gondwe, Civil Cause No. 16 of 2017 as having ordered that subjects of Chakwera village should continue cultivating in the area of Mangulu village seceded from Chakwera village. | have gone through the judgment but there is no finding or order to that effect. In fact that case is as between Village Headman Mangulu and Gideon Gondwe and not Village 16 38. BY. Headman Mangulu and his subjects on one part and Village Headman Chakwera and his subjects on the other part. That said, I find that there is a serious triable issue between the parties. It has not come out clearly however, from the sworn statement, how much of the land in Mangulu village is the subject of the controversy, and who among the subjects of Chakwera village have cultivated on this land. Reading the statement of case, it seems to me that the complained trespass and encroachment has been there since 1997, in which case indeed one would wonder whether this is any matter of urgency that the present action was only commenced in 2018 along with the application for injunction. Further, the remedy that is sought by the substantive action is a permanent injunction of the same nature as being sought by the present application for an interlocutory injunction.” It still has not come out from the evidence on the part of the Claimants, how much of the land in Mangulu village has been trespassed by the Defendants causing the havoc claimed. It is clear though their claim is not for restoration of the two villages to what, in their view, would be the original Mangulu village. And that being the case, it is further very important to segregate issues about the creation and legality of the village from issues to do with peoples’ rights and interests in the land. Without doubt, the land is customary land. The Land Act in operation at the material time declared in section 25 that all customary land is the lawful and undoubted property of the people of Malawi and vested in perpetuity in the President for the purposes of the Act. Section 26 gave power to the Minister responsible for land matters, subject to the Act, and to any other law for the time being in force, to administer and control all customary land and all minerals in, under or upon any customary land, for the use or common benefit, 17 40. 4]. direct or indirect, of the inhabitants of Malawi. The same provision had a proviso that a Chief would, subject to the general or special directions of the Minister, authorize the use and occupation of any customary land within his area, in accordance with customary law. While there was no private ownership of customary land, the law allowed families and individuals to have exclusive rights to use and occupation of customary pieces of land as allocated to them by chiefs. We see this in Kwwali v. Kanyashu, Civil Cause No. 109 of 2010 (High Court, Mzuzu Registry) (unreported), Mulipa v. Bibiyani and others, Land Cause No. 105 of 2016 (High Court, Principal Registry) (unreported) and Administrator of the Estate of Dr H. Kamuzu Banda v. Attorney General [2002-2003] MLR 272. It is also for the same reason that section 30 provided that nothing in the Act could be construed as preventing the application of the Customary Land (Development) Act to any customary land and the subsequent registration of such land under the Registered Land Act as private land. It means therefore, that no Chief or Group Village Headman or Village Headman would claim private interests to use and occupy the whole area under his or her jurisdiction except the piece allocated to his family, because the rest of the land would have been allocated to other families and/ or remaining to be allocated. For the reason above, if at the creation of any new village, there are already individuals and families authorized to use or occupy any piece of land in that village, their use and occupation of any such such piece need not be affected in any way. Justice Mzikamanda stated in V H. Zakeyo Chunga v. Nowell Jere, Civil Cause No. 176 of 2000, (High Court, Mzuzu Registry) (unreported) at page 6 that: “While customary land is administered according to customary law of the area, such customary law must not be inconsistent with the requirements of the Republic of Malawi Constitution. Any customary law or practice which is inconsistent with the Republic of Malawi Constitution is invalid to the extent of such inconsistency (see section 5 of the Republic of Malawi Constitution). The chief who administers and controls customary land according to customary law is bound by the Republic of Malawi Constitution, which provides for equal protection to all people of Malawi. One right that the Constitution provides ta every individual is the right 18 freely to engage in economic activity, to work and to pursue a livelihood anywhere in Malawi (section 29), Again the Constitution provides that every person has the right of freedom of movement and residence within the borders of Malawi.” 42. Further to the statement by Justice Mzikamanda above, this court in Kenani Mkandawire 43. v. Gideon Gondwe, Civil Cause No. 16 of 2017 (Mzuzu Registry) (unreported) at para. 7, added the right to acquire property under section 28 of the Constitution which in subsection (2) requires that no one should be arbitrarily deprived of property. And section 44(3) which states that: “Expropriation of property shall be permissible only when done for public utility and only when there has been adequate notification and appropriate compensation, provided that there shall always be a right to appeal to a court of law.” Consequently, if there were any trespass or encroachment or dispossession with respect to already allocated pieces of land at the time the new village was created, the remedy should have been a summons under section 36 (2) of the Land Act in operation then. It provided that: “(2) If any person trespasses or encroaches upon any customary land or is deemed under this Act to be, in unlawful use or occupation of any such land then the Traditional Court having jurisdiction in the area where the land is situated may, upon a sworn complaint being made to it by, or on behalf of, the Minister, or by, or on behalf of, the Chief having jurisdiction in that area, issue a summons requiring such first-named person (hereinafter referred to as “the defendant”) to attend before the Traditional Court to answer the complaint. Upon the hearing of the summons the Traditional Court may, if it is satisfied that the defendant has trespassed or encroached upon the land, or is deemed to be, in unlawful use or occupation thereof, make an order requiring the defendant, his family or other dependants (if any) to vacate the land within seven days, or such other longer period as the Traditional Court may determine, from the date of the making of the order by the Traditional Court. Uo such person fails to comply with the order, he may be removed from the 19 land by any authorized officer, police officer or officer of the Traditional Court authorized by the Traditional Court in that behalf.” 44. After the Traditional Courts were abolished in 1994 when the new Constitution came into 45. operation, their jurisdiction in these matters was taken over by the Magistrates’ Courts. Such was the nature of the case in Kenani Mkandawire (Village Headman Mangulu) v. Gideon Gondwe, (supra). Like that case, any such case would have to be dealt with separately. That would resolve matters of any person from Chakwera village who had a piece of land in the new Mangulu village dispossessed by the new Village Headman. It would also resolve matters of any person from the new Mangulu village with land trespassed or encroached or unlawfully occupied by a person from Chakwera village. And it would resolve any matters of trespass, encroachment or unlawful occupation of any unallocated piece of land by anyone in the new village. The Claimant’s statement of claim and testimony in the present case having not specified how much or which part or pieces of the land in Mangulu village is the subject of the controversy and who among the subjects of Chakwera village cultivated, trespassed, or caused havoc by slashing crops, demolishing houses and beating people on that part or pieces of land in the village, this court is unable to make any determination on the matter. This court cannot therefore grant the Defendants entitlement to the land and the village fully, or grant an order that the Defendants are in possession of the same illegally, or an order that the Defendants should vacate the land/village for good, as prayed by the Claimants. That, as already said, would have to be dealt with on case by case basis. This court however declares as prayed by the Defendant in the counterclaim that Mangulu’s Village Headman-ship does not take away existing land rights of the Defendant and/or his subjects or other Malawians on any pieces of land in the land in dispute purportedly under the Claimant, because every person has the right to acquire and not to be arbitrarily deprived of property, including land, anywhere in Malawi even in an area which is not his/her home village. But the prayer for an order of permanent injunction restraining the Claimant, his servants and agents from interfering with the exercise of land rights including 20 46. 47. 48. 49. use and occupation of the land in dispute by the defendant and/or his subjects would also have to be dealt with on a case by case basis. This in effect means that this court has dealt with the second issue for the trial in the present case. It has also dealt with the third issue in as far as it concerns the second issue. It may be recalled that the second issue is whether or not the Defendants are encroachers/trespassers on pieces of land the Claimant claims right to. Alternatively, whether or not the Defendants are the ones who have property rights, including the use and occupation of the pieces of land the Claimant claims. And, the third issue is whether the Claimant or the Defendant is entitled to the reliefs they seek in their pleadings. We should now move to the first issue and the third issue as it relates to the first issue. Again, it may be recalled that the first issue is whether or not the Claimant is a lawful and valid village headman and whether or not there was lawful secession and formation of Mangulu village within the jurisdiction of Chakwera village. The law on establishment of villages and institution of their village headmen There is no particular law in writing in Malawi explicitly providing for the establishment of villages. The Chiefs Act and the Regional and District Boundaries and Place Names Act contain provisions which may guide on the matter. The Chiefs Act makes “provision for the recognition, appointment and functions of Paramount Chiefs, Senior Chiefs, Chiefs, Sub-Chiefs, Councillors, Group Village Headmen and Village Headmen; and for certain aspects of District Administration and for matters incidental thereto or connected therewith.” It defines a Village as a collection of adjacent huts in which reside at least 30 male Malawians aged 18 years or over, and Village Headman as a person appointed to be a Village Headman under section 9. In section 9 (1): “A Chief may appoint such number of Group Village Headmen and Village Headmen as he may consider necessary to assist him in carrying out his functions.” 21 50, 1. 52, 53. We all know that a village is the area of jurisdiction for a Village Headman. Section 9 (1) of the Chiefs Act suggests that it is in the discretion of the Chief to decide the number of Group Village Headmen and Village Headmen he or she considers necessary within his/her area of jurisdiction. This consequently entails discretion to decide the number of villages within the jurisdiction. The provision is not explicit as to the manner in which new villages have to be created and how one would know whether a village was lawfully created or not. The Regional and District Boundaries and Place Names Act provides for the “division of Malawi into Regions and Districts and for alterations to such divisions to provide for the conferring and altering of place names and for matters connected therewith.” Section 5 (1) provides that: (1) The President may, from time to time, as he considers it convenient or expedient so to do, by Order published in the Gazette, confer a name on any Municipality, Township, village, lake, river, mountain, hill, valley, place, area or geographical feature or location which has no name, or may in like manner alter any name already conferred on the same, or by which the same may be known, and any such name conferred or substituted shall have effect for all purposes and all written laws. It is important to note that this power is about conferring a name on a village which has no name or altering an already existing name. It is not about creating the village. The village would otherwise, have been created by the Chief with jurisdiction in the area. While this is the case with villages, there are clear provisions under the Chiefs Act with respect to Chiefs and their Sections. A Section is a portion of a District assigned or declared to be the area of jurisdiction of a Chief under the Act. Section 3 (1) establishes the several offices of Paramount Chief, Senior Chief, Chief and Sub-Chief set out in the second, third and fourth columns respectively of the Schedule to the Act. Their areas of jurisdiction are specified in the first column of the Schedule opposite each such office. Section 3 (3) gives the Provident power, from time to Gime by Order, lo devlure or uller the boundaries of Sections and Sub-Sections and create new offices of Paramount Chief, Senior Chief or Chief and assign to such offices such area of jurisdiction as he/ she thinks proper and for 22 54. ae 56, 57, those purposes, by such Order, amend the Schedule. Section 3 (4) provides that “[t]he certificate in writing of a District Commissioner of the situation of the boundary of any Section or Sub-Section in his District shall unless such certificate is inconsistent with an order made under subsection (3) be conclusive evidence for all purposes of the situation of such boundary.” From the foregoing, we know what to consider in a dispute regarding the legality of the establishment of a new Section for a Chief. The most pertinent question will be whether the President made an Order establishing such a Section. From what is obtaining in the law, the Order of the President should stipulate the boundary of the Section and this should also be stipulated in the certificate of the District Commissioner made under Section 3 (4), as the certificate is conclusive evidence of the situation of the boundary of any Section or Sub-section in the District. As earlier observed, there is no particular provision explicitly providing for the creation of villages. How then should one deal with a dispute like the present one? It should be noted that there are so many villages in the country that it may not be practical to expect an Order like the one under section 3 (3) and a certificate under section 3 (4) for every new village created. If this was practical, there would also have been a Schedule of Village Headmen and their villages under the Chiefs Act which would also have to be amended every time a new village is created. However, there has to be a process with which to recognize a lawfully created village. ] think that that process for creating new villages is within Section 9 (1) of the Chiefs Act. In the discretion to appoint such number of Group Village Headmen and Village Headmen and thereby, villages as the Chiefs may consider necessary to assist them in carrying out their functions, is the process for creating new villages. 23 58. It is important to understand in the first place that Chiefs are public officers by their appointment and functions under the Chiefs Act. As such, as provided under section 12 (1) of the Constitution: (a) they derive their power and authority from the people of Malawi and they should exercise it in accordance with the Constitution solely to serve and protect the peoples’ interests; (b) they exercise powers of State on trust and they should only exercise such power to the extent of their lawful authority and in accordance with their responsibilities to the people of Malawi; (c) their authority to exercise power of State is conditional upon the sustained trust of the people of Malawi and that trust can only be maintained through open, accountable and transparent Government and informed democratic choice; (d) the inherent dignity and worth of each human being requires that the Chiefs also should recognize and protect human rights and afford the fullest protection to the rights and views of all individuals, groups and minorities; (e) Chiefs should also understand that all persons have equal status before the law, and that the only justifiable limitations to lawful rights are those necessary to ensure peaceful human interaction in an open and democratic society; and (f) they also have to observe and uphold the Constitution and the rule of law and should not stand above the law. 59, Further to the above, Section 12 (2) of the Constitution states that: “Every individual shall have duties towards other individuals, his or her family and society, the State and other legally recognized communities and the international community and these duties shall include the duty to respect his or her fellow beings without discrimination and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance; and in recognition of these duties, individual rights and freedoms shall be exercised with due regard for the rights of others, collective security, morality and the common interest.” 24 60. The same thought runs through the functions of a Chief provided in section 7 of the Chiefs Act: (a) to preserve the public peace; (b) to carry out the traditional functions of his office under customary law in so far as the discharge of such functions is not contrary to the Constitution or any written law and is not repugnant to natural justice or morality; (c) to assist in the collection of tax; (d) to assist in the general administration of the District in which his area of jurisdiction is situate and for such purpose to carry out such functions as the District Commissioner may require; and (ec) for any of the purposes mentioned in paragraphs (a), (c) and (d) to carry out and enforce any lawful directions of the District Commissioner. 61. Further, section 9 (3) of the Chiefs Act provides that: (3) The remuneration, if any, to be paid to a Group Village Headman or Village Headman shall be such sum as may be approved by the District Commissioner of the District in which the village or group of villages is situated. 62. It is clear from the provisions above that no Chief can just wake up and appoint a Group Village Headman or Village Headman arbitrarily. It has to be an open, accountable and transparent process that fosters peaceful human interaction, mutual respect and tolerance, carried out in conjunction with the District Commissioner. No Chief may create a new village and appoint a Village Headman without the involvement of the District Commissioner and through him, the Ministry responsible for local Government and rural development. Where there is a Senior Chief and/or a Paramount Chief in the area, they also have to be involved. Such has to be the character of the process. For the sake of uniformity and consistency of the process to follow by Chiefs and District Commissioners, when creating new villages, there needs to be rules provided for that purpose under the Chiefs Act. In the absence of such clear rules, as of now, if a Chief purported to create a village and appointed its Village Headman unilaterally, without the involvement of the people 25 63. 64. 65 66. concerned and the District Commissioner, that village should not be recognized. No Chief should make a declaration for a new village before all issues with any one concerned have been resolved. The whole process has to be with the blessing of the District Commissioner. There is a principle of national policy under section 13 (1) of the Constitution that the State shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving peaceful settlement of disputes by striving to adopt mechanisms by which differences are settled through negotiation, good offices, mediation, conciliation and arbitration. The process of establishing a new village may not be smooth altogether. Where there are disputes, the Chiefs, the District Commissioners and whoever is involved have to strive to adopt mechanisms by which any differences are settled through negotiation, good offices, mediation, conciliation and arbitration. The courts should be of last resort after all the other mechanisms have failed. Determination of the matter From what was said by the witnesses in this case, it is the process that took place around 1994/95 that has to be tested. The way Mr Heath Nyirenda put it in his testimony is that Meston Mangulu Nyirenda was recognized as a Village Headman and given a Census Book on 23 December 1994. Village Headman Chakwera disputed it and then Traditional Authority, Raphael Kilupula made a demarcation separating the two villages with the M1 road as the boundary. Mr Gibson Kaonga added that the T/A, Raphael Kilupula was beaten almost to death by people from Chakwera village when he demarcated the boundary between the villages. . Ms Chancy Gweleweta Nyirenda testified that Mangulu village was recognized by her predecessor Mjulu Nyirenda, and the Village Headman was dully approved and installed by the then T/A, Raphael Kilupula. Mr William Kalongolera Mwakikunga exhibited a letter of 9" March 1997 from the then Traditional Authority Mwakaboko who was responsible for the area, submitting a list of 26 07. 68. 69. 70. appointed Village Headmen to the District Commissioner for Karonga including Meston Mangulu for Mangulu Village. From the view point of Mr Kagwigwi Kumwenda, Meston Mangulu Nyirenda, who was then an advocate to Gibson Kumwenda Chakwera asked from Group Village Headman Gweleweta for part of Chakwera village to be his own village, but when the Chakweras got news of the request they protested because they had not been consulted and Mangulu was not a member of their royal family. Meston Mangulu Nyirenda then went to Traditional Authority Kilupula who gave him part of Chakwera village or land without consent of the Chakweras and without authority of the Ministry of Local Government and Rural Development and Karonga District Council. Following the complaint, the District Commissioner for Karonga, after hearing from all relevant parties, including Village Headman Chakwera, Meston Mangulu Nyirenda and Chief Kilupula, held that Chakwera village remained one village and dismissed Mangulu’s plans to secede. I find that the process followed in 1994/95 as to the creation of the new village and appointment of its Village Headman was not in the spirit required by the law. It appears like the new village and the new Village Headman were imposed without proper negotiation and consultation with the Chakweras and the District Commissioner. No wonder, ever since, there have been wrangles between Village Headman Chakwera and Village Headman Mangulu. There has been mention that Mangulu Village has a Census Book and its Village Headman receives honoraria from Government. That in my view would not be conclusive evidence of due process having been followed in the creation of the village, bearing the kind of evidence we have in this case in respect of the process that was followed. There has been mention of a commission of inquiry. The same was not a commission of inquiry as understood under the Commission of Inquiry Act. Mr Arnold Ngulube admitted in cross examination that the people from whom the commission inquired were from Chakwera village. McBean Jeromy Kumwenda Chakwera was the Village Headman that 27 time. James Luhanga was one of the subjects of Chak wera village. Ellah Mangulu Nyirenda although daughter of the Mangulu family, married Chifamaso Luhanga, was also essentially from Chakwera village. Now that we have had a trial on the same issues the commission inquired, what a better inquiry than that was. 71. As it stands, the process for Mangulu village to become a lawfully recognized village was not properly followed. The negotiations can start all over again. It is not a matter of Village Headman Chakwera giving or withholding consent to the process. The power is in the Chief and not a Group Village Headman to appoint such number of Group Village Headmen and Village Headmen and hence create villages as he may consider necessary to assist him in carrying out his functions. Chief Kilupula has that power in the present case after negotiations and consultations with everybody concerned. 72. The Claimants’ action is hereby dismissed. The Defendant’s counterclaim succeeds in part. Costs will be for the Defendants. 73. Delivered in open court this 30" day of May 2022. 28