Kuntaja v Luhana (Civil Cause 520 of 1993) [1993] MWHCCiv 49 (27 October 1993)

----- BETWEEN: IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NUMBER 520 OF 1993 REGINA KUNTAJA PL AINTIFF and STANLEY LUHANA DE FENDANT Cor am: D F MWAUNGULU, REGISTRAR Zimba, Counsel for the Plaintiff Defendant present and unrepresen ted ORDER The plaintiff, it is alleged b ough t of Th i s is an originating summons for posses s i on of land. th e Supreme I t is made under Order 113 of the Rules o f Co u rt. the d ef endant ' s father, plot No. SWB/1017/5, Zi ng wa ngwa in t he Ci ty of Blantyre. This is a residentia l ho u se. The de f endant, who the vendo r, a nd is in o cc upation of the residential house, is refu sin g to leave t he premises alleging that the plot, whic h be lo nged to hi s mother, did not belong to the vendor. is the son of the defendant, given o n o a th, Lo o king at the affidavit in support of th e ap p lication a nd evidence of the a pp ropriate order is under Order 28, rule 8 of t he Rules of the Supreme Court, that the action be taken as if it the p lain ti ff must was commenced by writ. s er ve a statement of claim on the defendan t in t he next 14 days and defence must be filed 14 days ther e after. Secondly, Acc ording to the plaintiff, she bought thi s pl ot of land a nd paid K8,000 to the defendant's father. The a greement was executed on 9th October 1992. There is a transfer of lease from t he City of Blantyre, who h ave n ow taken co n trol of the urban traditional housing loca ti ons like th e one where the residential plot is si tuat e. It is the d ep oned pre mises. He only came when he heard of t he ag reement. It is contended that he came to exclude the p laintiff fr o m occupying the premises. the defendant was not li vin g at that 2/ ..... / - - On oath, the defendant has said that he had liv e d on the pi ece of land since childhood. The plot was re gistered at the Malawi Housing Corporation, who, as we h ave seen su rrendered the traditional housing area to th e City of Blantyre. According to the defendant, he and t he other c hildren lived on the premises until their mot h er died. The father had apparently moved out and only c a me in when t he mother died. The next thing that the defend a nt heard was that somebody had bought the residential plot on which they lived. Wh atever complexion one gives to these facts, t wo results ar e of legal significance. If these were the v endor's the ch ildren and c hildren lived on the premises by the permissi on of the vendor, who is a predessessor in title, to the p la intiff. Now Order 113 (1) provides: the plot belonged the ven d or, to "Where a person claims possession of land which he allleges is occupied solely by a perso n or persons "not being a tenant or tenants ho ld ing over after termination of the tenancy) wh o entered into or remained in occupation with out his license or consent or that of any pre de ssessor in title of his, the proceedings may be b ro ught by originating summons in accordance with t he provisions of this order." the license or consent of It can be seen here that if the defendant live d on the premises and was the vendor's child, the plainti ff cannot proceed under Order 113 ( 1) because the defen d ant was there by the pla i ntiff's p r edessessor in title. Further it could be tha t as the plaintiff alleges, the defendant only moved in when the sale was concluded. The defendant, however, say s on oath t ha t he had been there all along. There is here a in my opinion c an not be disputation of fact, which resolved by affidavit evidence of the pl a intiff. the Moreover, defendant's deceased mother, the administratio n of the I t could estate of the deceased has to be established. share very well be that the defendant is entitled to s om e He, the vend or . in the estate of therefore, would have some interest in the lan d. These are issues which can best be resolved by trial o f the the exc 1 us ion of the piece of land belonged if to 3/ . . . . . - - matter. In circumstances 1 ike these, it is not proper t o grant an order in a summary manner as is pe rmitted by Or der 113 of the Rules of the Supreme Cour t. Made in Chambers this 27th day of October 199 3. D F M