S (On application of Benard Ndau, Dr Agness Mwangwera and Beleke Kaomba representing themseleves and members of Kasungu Peoples Trust) v Kasungu Municipal Council , Chief Executive office of Kasungu Municipal Council, Mayor ( Kasungu Municipal Council) and Mafuta (Judicial Review Case 42 of 2021) [2022] MWHCCiv 33 (28 March 2022)

Benard Ndau & 2 Others v. Kasungu Municipal Council & 3 Others ™ = “Kenyatta Nyirenda, J. JUDICIARY | IN THE HIGH COURT OF MALAWI , LILONGWE DISTRICT REGISTRY (CIVIL DIVISION) JUDICIAL REVIEW CASE NO. 42 OF. 2021 BETW EEN . THE STATE (ON APPLICATION OF BENARD NDAU, DR AGNESS MWANGWERA AND BELEKE KAOMBA REPRESENTING THEMSELVES AND MEMBERS OF KASUNGU PEOPLES TRUST) ...ssssetsestessssieceseenen “see CLAIMANT AND os | oe KASUNGU MUNICIPAL COUNCIL visesscssesseneeees | vs 18? DEFENDANT THE CHIEF EXECUTIVE OFFICE OF KASUNGU. . MUNICIPAL COUNCIL --seeeesse0 vecscaueusesustetsees seveapes 2XP DEFENDANT THE MAYOR (KASUNGU MUNICIPAL COUNCIL). sea .. 38” DEFENDANT JAMES MAFUTA coecccccesecesesesesesesvsvsees ssessuesseess INTERESTED PARTY CORAM: : THE HONOURABLE JUSTICE KENYATTA NYIRENDA _ Mrs. Mapemba, Counsel for the Clairiant °" Mr. Mphote, Counsel for the Defendants Mr. Zimba, Counsel for the Interested Party Mr. Henry Kachingwe, Court Clerk _RULING _ Kenyatta Nyir enda, 7 | This is this Court’s ruling on an application on the part of the Interested Party for declaratory orders. The application is said to be brought under Order 19, rule 27, of the Courts’ (High Court) (Crvil Procedure) Rul es s [Hereinafter referred to as the ec CPR”. . The application is supported by a statement sworn “by Counsel Innocent Zimba and the material part of the sworn statement reads: _ Tae Senard Ndau & 2 Others v. Kasungu Municipal Council & 3 Others _ : Kenyatta Nyirenda, J. "> 24 2.2 Background of the Matter By way of Judicial Review the claimants herein. commenced the present action seeking the following declarations,- Ry 21.2 .-A declaration thet the’ decision of the Respondent fo sell or sub- divide or in any way dispose of the-public property known as ' Kastnigu Municipal and Restaurant and Resthouse, Plot No, KU 35 is arbitrary, Wednesbury Unredsonable and Procedurally Wrong, illegal and unfair. and made contrary to the provisions of the Public Procurement and Disposal of Assets Act, 2.1.2 An Order quashing the said ‘decision. of the Respondent on the purported sale or subdivision of the property known. as Kasungu Municipal Restaurant and Rest, House. 2.1.3 An Order that Council should meet within a given period of time to __ review the decision purporiedly sale and) or subdivide the property ~ and take corrective MeASULES, 2.1.4 And If permission/ leave is granted, a direction that there be a stay , of the said decision of the respondents and that an injunction be issued against the Respondents restraining them from enforcing the - said decisions till the matter.is determined by the Honourable court. Following the said application for the Judicial Review the parties to the Consent Order, minus the Interested Party, started engaging between themselves with the view. of.settling the matter. out of court and on 9" December, 2021 the two parties in the absence of the Interested Party . herein agreed on many ferms, - but those of specific application to the ” Interested Par iy herein dre the Jollowing;- 2.2.1 That the Respondents herein and hereby permanently restrained Jrom selling, pledging or in any way disposing the said property to the said Ar. James Mafuta, or any other person acting on his behalf. 2:2.2 °That:the i, yn and 3rd Re: spondents admit and confirm that the purported lease issued to one James Mafuta, was done without the knowledge and approval. of the 1" and 24 Respondents and in this regard the 1 "ond am Respondents HEREB ¥ A GREE as follows: 2.2.2.1 The Respondents acting in good-faith shall cooperate fully with the Claimants and the Registrar of Lands to have the lease granted herein over the property to Mr. James Mafuta rescinded and shall take all necessary steps to ensure that the ownership ‘of the said Property reverts to Kasungu Municipal C ounteil: within n thirty (30) dys jrom the date her: eof. 4 te Benard Ndau & 2 Others v. Kasungu Municipal Council & 3 Others Lo Kenyatta Nyirenda, J, 3, The Current Application 3 I refer to paragraph 2.2.1 above and state that a proper reading af the pleadings and the reliefs sought, there. was no pleading nor relief that was sought to permanently restrain the r espondents from offeri ing the said piece of land to the interested party herein: It ther efore means that the same has no legal basis ant should not be enter tetined.by y this Honourable court. 3.2 The said term in the consent Order is discriminatory in nature as it curtails the interested party's right to’ ‘ownership of this particular property in the event that the same has been corrected by the City Council and the same is being done without any legal basis as far as the Interested Party is ~ concerned. 3.3 Trefer to paragraph 2.2.2. above and state that the said term in the Consent Order is misleading and a misrepresentation of facts and almost implies that the Interested Party herein procured the lease through fraud or dubious _ means, The facts as from the face of the pleadings suggest rightly so that ” the Interested Par ty was offered and agreed to purchase the said piece of land from the Respondents and that there was agreement. betiveen the Respondents cand the Inter ested Par ty ihereo}. - 3.4 It is also apparent that after the said sale the Interested Party proceeded to obtain a lease from the Government,as is-usually the case, without ” knowledge of the current pr oceedings. What the term of the Consent Order ema therefore, is that the intérested party procured the lease via fraud * ‘dubious means’, however, the same was never proved by neither the Claimant nor Respondent, and that the interested par ty herein was never invited to be part of such a discussion or settlement. © 3.5 °° This term of the Consent Order therefore should be struck out on the basis " that both the parties never established fraud against the Interested Party herein, especially when the interested party herein was neither consulted nor involved in the making of the Consent Order. ° . The Consent Order being referred to is dated 9! Decembet 2021 and the parties thereto are the Claimant and the Defendants. The body.of the Consent Order will be quoted in full: “L, THAT the decision of the Respondents t to. sell or sub-dlivider or in any way dispose of the property.known as Kasungu Municipal Council. Restaur ant and Rest House situated on Plot No.. KU 35 (hereinafier referred to as the “Property”) to a Mr. James Mafuta tr ading as Target Genéral Dealers was arbitrar ‘y, unreasonable, procedurally wrong, illegal, unlawfil and unfair and is her eby quashed and set aside. Benard Ndau & 2 Others v. Kasungu Municipal C Council & 3, Others Lo, “Kenyatta Nyirenda, J. Z. The Interested Party applies for declaratory orders that: “a . r HAT the Respondents be and are her eby per manently restrained fronr selling, pledging or in any way disposing af the Property to the said Mr. James Mafuta, or city other "person acting on his behalf. THAT the Property herein. shall hencefor th not be dealt with by any of the Respondents except with the full approval of the pt Respondent (the “Council”) and, in the event of sub-division, sale or disposal of the Praperty, such approval shall be made at a meeting attended by not less than seventy five percent of the Council members and further, such sale shall be competitive and by public auction publicized in local newspapers s within at least twenty 0 one (21) days of a resolution bein "8 made. THAT ihe ae a and rd Respondeits a achmit and confirn: that the purported lease issued fo one James Mafuta, was-done without the knowledge and approval of the I and 20 Respondents and in this regard the I" and 2 24 Respondents HEREBY AGREE as follows: 4.1 The’ Respondents shall acting in good faith, cooperate fully with the Claimants and the Registrar of Lands to have the lease granted herein over the Property to Mr. James Mafuta rescinded and shall take all necessary steps to ensure that the ownership of the said Property revert to Kasungu Municipal Council within thirty (30) days from the Mate hereof. 42 The I Respondent shail, within forty eight hours, submit a letter to the ~ Commissioner for Lands requesting the Registrar of Lands to cancel the sub-division and purported lease of the Property in. favour of the said Mr. Mafuta. | THAT within twenty-one (21 D days from the date hereof, the 1 Respondent shall submit to the Claimant's legal practitioner s awritten statement of account of the ‘proceeds of the purported sale of the Proper ty to. Mr. James Mafuta, including the purchase price, mode of payment and date of receipt of the same. THAT the contempt of court proceedings instituted by the Claimants against the Respondents « are hereby withdrawn in their entir rey ae . THAT the a an and 3rd Respondents are or srdéved t to pay costs 5 of the. action to be assessed yf not agreed within 14 days.” “a Order 2 under the Consent Order dated 9° Pecember, 202] purporting to permanently restrain the Respondents fiom - selling, pledging or in any way disposing of the property to the Interested party herein or any other person acting on his behalf is arbitrary as if has no legal basis nor was the same included in the reliefs the Claimants sought and ought to be struck out of, the Consent Order. oe Benard Ndau & 2 Others v. Kasungu Municipal Council & 3 Others. . _ Kenyatta Nyirenda, J. b) ¢) d) Order 4 of the Consent Order be struck out as it inpplies or asserts that the Interested. Party herein procured the lease via fraud or ‘dubious means’ in that the Respondents had no knowledge of the lease, when in fact the Respondents had offered the Interested Par ly herein the said piece of land. ., Such Order (s ) and Declar araiion(s). as the € Court. sheall-deem just and proper. “An Or der for Costs: . The Claimants are opposed to the application and they rely on the folowing sworn statement made by Counsel Grace Mapemba Chikopa: “Background to Consent Order 4, LO. THAT the claimants were approached by the Respondents to consider settling out of court the contempt of court pr oceedings which had been commenced against them. Z . FHATP the Contempt. of court. pr ceedings w were due to be hear dc on in 22rd December, 2021 and on the same day an application by the Claimants for defailt judgment against BOTH the Respondents and the inter ested Party was also scheduled for hearing. THAT on the day that the said contempt of court proceedings were due to be heard, IT and.counsel for the Respondents. appeared | before € Justice Kenyatta Nyirenda where we informed him of the ongoing négotiations. - THAT on the same day, and immediately after we had appeared befor e Nyirenda, J. as aforesaid, I thereafter appeared before the judge again together with Counsel for the Interested Party for hearing of the application for default judgment. The _. Respondents conspicuously did not appear ‘for the said hearing although they had appeared a few mimutes earlier jor the hearing of the contempt of court proceedings, THAT the Court proceeded to enter default judgment against ALL parties in this matter inclucing the Interested Party. See Exhibit marked “GMI”. — ’ THAT on the next day, we were again approached by Counsel for the Respondents to conclude the negotiations relating to the contempt of court proceedings. The negotiations were duly concluded leading to, the signing. of the Consent Order attached hereto and mar hed “GM2". as a result of which the contempt of court pr oceedin gS Were discontinued and withdray wn Suppression of Matérial Facts THAT as it can be obser ved from the background above, it is not correct that the negotiations were for settlement out of court of the proceedings herein. They were " restricted only to settling out of court of the proceedings herein and'not the main 5 Benard Ndau & 2 Others v. Kasungu Municipal Council & 3 Others . — Kenyatta Nyirenda, J. Ll. £2. 13. L5. 16, judicial review pr pevedings« as alleged ir in pewagr raph 2 2.2 of the Applicant's sworn stafement, THAT the Interested Party herein was not a par ty fogthe. consent order and therefore, being a stranger to the Consent Order,. has no basis or interest to challenge or question any terms. thereof duly, entered into by the Claimanis and the Respondents. -: THAT the Respondents have never complained or challenged the Consent Order ‘herein. ; So, THAT the terms s of li the. consent Order were enter ed into by the Parties voluntar ily and no one of them has complained about then. Setting Aside Consent Order T HAT only a party to a consent or der can set it aside and, even then, this can only be.done-by an action commenced ‘jor the said pur, pose and with specific reasons. LHAT the application by the Interested Party herein including the ‘facts and matters raised in paragraph 3.2 and 3.3 af the Sworn Statement of the Interested Party, were already adjudicated upon by both the Default Judgement and/or were agreed upon by the Claimant and. the Respondents in the. Consent Order. Consequently, the said matters are res judicata. THAT the application herein is incompetent, fe ivolous and vexatious. ds it'is not founded on any Taw or any pr ovision of our rules anc. thereof ought to be dismissed with costs,’ In his submissions, Counsel Zimba ar eued that the Consent Order entered into between the Claimant and thé Defendant should be:strick out because it lacks legal basis. It is expedient that the relevant part of the submissions by the Interested party be quoted in full: LL, 312 3.15 . ad proper reading of the pleadings and the reliefs sought, there was no pleading ‘nor relief that was. sought to permanently restrain the respondents from offering the said piece of land to the interested party herein. It therefore means that the same has no legal basis and should not be entertained by this Honourable court. The said'term in the consent Order is discriminatory int nature as it curtails the interested party’s right to ownership of this particular pr operty in the event that . thé same has been corrected by the C ity Couneil and the same is being done without any legal basis as ‘far a as the Inter ested Party is concérned. Trefer to paragraph 2.2.2. above and state that the said term in the Consent Order is misleading and a misrepresentation of facts and: almost implies that the interested Party herein procured the lease through fraud or dubious means. The 6 Benard Ndau & 2 Others v. Kasungu Municipal Council & 8 Others _ Kenyatta Nyirenda, J. facts a as fe om the ‘fees of the pleading BS “suggest rightly 50 that the Interested Party was offered and agreed to purchase the said piece of land from the Respondents and that there was agreement between the Respondents.and the Interested Party ‘thereof, 31.4 | It is also appar ent that afier the said sale the Interested Par ty proceeded to obtain a lease from the Government, as is usually the case, without knowledge of the current proceedings. What the term of the Consent Order entails, therefore, is that the interested party procured the lease via fraud or ‘dubious means’, however, the same was never proved by neither the Claimant ner. Respondent, and that the interested party herein was never invited to be part of such a discussion or settlement. D 3.1.5 This term of the Consent Order therefore should be struck out on the basis that both the parties never established fraud against the Interested Party herein, especially when the interested party herein was neither consulied nor involved i in the making of the Consent Order.” ” Counsel Zimba also s placed reliance on Order 23 , tule 8, of the’CPR which states that a person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied. . I have considered the submissions by both parties.. To my mind, the first question to consider is whether or not this application has béen competently brought. It is commonplace that the Interested Party was a party to this case by his own’ choice. The application by the Interested Party for permission to be added as a party was filed with the Court on 22" September 2021 and the application was granted. Having been added as a party, Counsel Majekete appéaréd before the Court on behalf of the Interested paity of 22" Noveiiber.2021 during ‘the hearing of an application by the Claimant for the Court to enter a default judgement. ‘Bearing this in mind, I have difficulties in appreciating how Order 23, rule 8, of the CPR supports the case of the Interested Party in this case. The language of rule 8 is clear: it is not meant to benefit persons who are parties to the case. If the Interested Party | is aggrieved by the Consent Order, his answer hes in appealing: against the said Consent Or der. In light of the foregoing and by reason thereof, the "application is wholly misconceived. It is, accordingly, dismissed. - Pronounced in Court this 28" day of March 2022 at Lilongwe i in 1 the Republic of Malawi, we ee (. . : C wy awa Kenyatta Nyirenda. _ JUDGE