Author: IVY NAMAGONYA
Last saved by: User
Company: High Court Of Malawi

IN THE MALAWI SUPREME COURT OF APPEAL
PRINCIPAL REGISTRY
M.S.C.A CIVIL CAUSE NO. … OF 2009
(Being High Court Civil Cause No.510 of 2004)

BETWEEN
FARMERS WORLD LIMITED ………………………APPLICANT
AND
CHAMWABVI GROUP LIMITED…………………1^ST RESPONDENT

KAMZATI M. CHOMBO …………………………..2^ND RESPONDENT

CORAM:	HON.JUSTICE NYIRENDA
		Counsel for the Plaintiff, Msowoya
		Counsel for the Defendant, Chinula/Nkhoma
		Court interpreter, Chulu

Date:	01/03/04					Time:	 8.30am

RECORD OF COURT PROCEEDINGS

COURT:	Matters being discussed to determine appropriate course of action ie. In Chambers or in open court depending on how the 1^st and 2^nd defendants look at what the real issues are.

Court to be advised when parties are ready to be heard.
A.K.C. NYIRENDA
JUDGE

01/03/04

CORAM:	HON.JUSTICE NYIRENDA, J

		Counsel for the Plaintiff, Msowoya
		Counsel for the Defendants,
		Court Interpreter, Chulu

Date: 05/07/04						Time:	9:00a.m

Msowoya:	This application is under Order 29 r 1.  Application is by tenours World for injunction the respondent ie Chamwabvi  Group and Kamzati Chombo as per our affidavit and summons.  Plaintiff would have proceeded on O.S but because on separate instances have threatened to close the ware houses.  I had a meeting with  Respondent  of 1^st respondent Mrs Msaliwa who threatened to demolish buildings and 2^nd Respondent also threatens to close the shops.

Application is on Order 29 r 1 which   gives this court to powers grant injunction in any matter or course before trial.  Purpose of injunction is preserve the status quo of parties. Order 29 r 1 paragraph 12.

Peoples to be applied are in the case of American Cyamion   - 1975 Applicants summary.
1.	Establish good and arguable claim
2.	Not to determine merits of matter
3.	Balance of convenience on court’s discretion.

Applicants argues that they have an arguable claim as affidavit shows. Applicants’ shops have to be opened every day to supply farmers.  If shops were  closed there would suffer damage irreparable .

Plaintiff makes an understanding as to damages on these grounds applicants seeks an injunction as prayed for. 

Applicants will make interparte application within days as cost may order to allow respondents to challenge the injunction.

Court:	Upon hearing counsel for the plaintiff and upon reading the affidavit of counsel Austin Msowoya on behalf thereof and certifying that the matter is indeed one of urgency this court grants the injunction prayed for in terms of the plaintiff’s prayer and on the undertaking by the plaintiff as to damages.

The injunction being exparte, it  shall subsist for 14 days and is subject to a further order of this court by way of an interparte application.

Made in Chambers at Lilongwe this 5^th day of July 2004.

A.K.C. Nyirenda
JUDGE 

CORAM:	HON.JUSTICE NYIRENDA
		Counsel for the Plaintiff, Msowoya
		Counsel for the Defendant, Katuya
		Court interpreter, L.N. Msiska

Date:	07/09/04					Time:	 8.30am

Katuya:	Under order 28 we were to give 14 clear days to defendant but defendant has had only one clear day to hear O summons as regards summons for injunctions thee has been only one clear day to defendant’s which is why  I seek courts directions under Order 28 and 29 RSC.

Chombo:	On legal matters I am not conversant. The matter starts way back.  There has been different parties who have tried to bring this into the matter but nothing has happened.  When we were served with injunction on 5^th July acknowledge receipt in 11 days which I did. The 1^st respondent has accepted quite. Looking at the silence of 1^st Respondent I pray to court to consider my time was to have this matter resolved and looks at silence of 1^st Respondent.

Court:	Parties with the court agree on adjournment of the case to 7^th October, 2004.

A.K.C. Nyirenda
JUDGE	

CORAM:	HON.JUSTICE NYIRENDA
		Counsel for the Plaintiff, Msowoya
		Counsel for the Defendant, Katuya/Chombo
		Court interpreter, Chulu

Date:	07/10/04					Time:	 8.30am

Msowoya:	Applicant’s tenants for property in Kasungu plot No. 124.  The applicant in argument with 1^ST Respondent leased those premises from 1^st July 2002 renewable yearly next 2^nd Respondent wrote to applicant claiming that there is the title holder of property thereby said rentals be paid to him.  Applicant  ruling that there would be sent from two parties sought the determination of who is the owner and in the interim obtained injunction to a vest the threats to seal property which would have prejudiced business of applicant. Injunction was granted subject to interparte summons until final determination of matter.  Injunction was on order 29 RSC and also American Cyanamid Case. Objective is to preserve status quo on a balance of convenience.

In the case at hand the applicant faced with the possibility of two suits and possibility of premises being sealed by either of the parties seeks the continuation of people to a vest losing out on bus.  Also the applicant has no interest in the interpleader process but to clarify the position.  As at present matter is unresolved and two respondents continue to make adverse claims to property.  We seek that injunction be continued with.

1^st Respondent:	For reasons that will become clear in interpleader summons the position of 1^st Respondent is that the injunction obtained by applicant to continued until I substantive matter is dealt with.

2^nd Respondent, Chombo:	As stated on 7^th September, 2004 unlike the two parties I am lay in masters of law but looking this issue it was taken me 4 years trying to resolve it with 1^st Respondent amicably.  Several avenues have been taken, Adjudication Office, Lands Office, D.C.  Kasungu and no response has been made by first Respondent although communications were made to them.  I am not very impressed by their silence all these years although they have come to sight meetings called by God.  Today is their first response. Their delaying pattern must discouraged by this court because it has cost me time and money to come to this point.  I would have loved if this case be dealt with today.  I travel from Kasungu and wish to claim costs so  far for travelling.

Let the injunction continue until the matter is resolved.

Court:	Injunction to continue until the determination of the matter at hand.

Signed

A.K.C Nyirenda
JUDGE

07/10/04

INTERPLEADER SUMMONS

Katuya:	1^st Respondent has not filed an affidavit but going by affidavit of Mr. Msowoya on behalf of applicant it is clear that there are facts in dispute between  1^st Respondent and 2^nd Respondent. Exhibit FW11 shows it all.  The issues cannot be decided here and now because there would be intricate questions of evidence. In addition supposing sheds are on plots of 2^nd and 1^st Respondents who is entitled to  receive the rentals?	Who becomes the legal owner of the sheds.  Supposing sheds were built by 1^st Respondent and 2^nd Respondent never contributed nothing, whether he can claim legal tile to them.

O 17 r5 RSC gives court discretion to have matter fully tried if there be facts indispite. If there be in an issue it can be tried.  In matter be stated and tried then a full trial as if by court is ordered.

All I am saying is that from applicant’s affidavit this matter has a lot of issued to be properly determined. I therefore pray that court must order that this matter be tried in an ordinary way.

Mr Chombo:	I have made personal constraints with the people responsible for Chamwabvi several times nothing past.  In fact by “FW 16” I wrote to the Financial Controller of Chamwabvi as of that date seeking resolution of this matter I have also made copies of all the correspondence in this matter to them all this time.  The other problem is that where I live is where the 1^st Respondent is and if 1^st Respondent was serious about the matter being resolved communication started in 2002 but there has been no response from the 1^st Respondent.  Their luck of response is not surprising now.

Court:	It is clear to this court that the first respondent has negligently failed to respond to this action despite having been made aware of these proceedings well in good time.  While the prayer for a trial is well within Order 17 such should not be used as a way to delay process at the expense of any of the parties 	to the proceedings.  In all fairness to this matter the conduct of the 1^st Respondent is that they must be condemned in costs of this action because even if the court were to order a trial the case would not at all take off because apart from starting for a full trial the 1^st respondent has not responded to the issue in the matter. Strictly speaking the 1^st Respondent should not even have been heard because really there is no basic upon which they could be heard in the absence of any response.

In the matter of this matter the realing the implication it might have on the parties if only safe to allow a full resolution of the  issues for which reason the 1^st Respondent’s prayer is allowed the opportunity to respond to the action within the next 14days  upon which trial of the matter will proceed by way of case started. Upon failure by the 1^st respondent to so do the case will proceed for determination on the basis of what is now on record from the applicant and even 2^nd Respondent.

It is for all these reasons that the 1^st respondent is also condemned his cost to date for both the applicant and the 2^nd Respondent which must be paid on or before the date of hearing of the matter.

-Costs be agreed or taxed by the Registrar soonest.

Date of hearing to be determined before the court now.

MADE in Chambers this 7^th day of October, 2004

A.K.C Nyirenda
JUDGE

CORAM:	HON.JUSTICE NYIRENDA
		Counsel for the Plaintiff, Msowoya
		Counsel for the 1^st Defendant, Mussa
		Counsel for the 2^nd Defendant, Nkhoma
		Court interpreter, Gonaulunji

Date:	29/11/04					Time:	 9.00am

Mussa:	As indicated matter was by way of interpleader by plaintiff main issue was of ownership of ware houses rented by plaintiff.  There is affidavit by Chinula  which says ware houses was confused because of conflicting advise from DC who said rent was to go to 1^st defendant and then he also said to 2^nd defendant leaving plaintiff in limbo.

Secondarly para 4 says controversy is on ware house but by 1^st Respondent and 2^nd Respondent did not take any steps to stop constructing.  In effect the 2^nd Respondent had given assurance to 1^st Respondent that ware house could be built. We can conclude that such silence meant 2^nd Respondent allowed 1^st Respondent to build ware house which reliance led to detriment on part of 1^st Respondent therefore though not  explicit in affected of Chinula this raised proprietary stopped.  Doctrine says if one party knowingly encourages and another act, acquires to the action of that other party.

1^st defendant acted vigilant to develop the land while 2^nd Respondent knew of defendant choose to be silent. Should law allow someone to benefit from his slagish attitude.

1^st Respondent acknowledges that the land was for the 2^nd Defendant.  But when it was being developed 2^nd Respondent ought to have stopped such defendant. Since 2^nd Defendant is insisting on return of land I adopt the prayer in our affidavit or in the alternative any other remedy to make  well the expense incurred by the 1^st Respondent with the acquiesce of the 2^nd Respondent.

Nkhoma:	There is   affidavit in opposition and skeletal arguments. Main issue raised is that whatever is attached to the soil is part of the soil I refer MVG 2^nd page of arguments 833 2 MW on this basis since 1^st Respondent has concluded that land is that o 2^nd Respondent as follows that 2^nd Respondent is owner of ware house because they can not be separated from the land.

Land is leased and only way can be disposed is for breach and of covenant see section 14 of Land Act.  Here 1^st Defendant is clearly not owner and has not acquired any title land is scares; this is not grand to evading land of others.

Adverse poses R Act ie Title by Prescription to do so you need to apply to 4 and RES under 134(2).

(1)	Peaceful occupation
(2)	Application to the 1^st Respondent has not applied for ownership.

1^st Respondent has shown that they are not interested in ware house by asking that they be demolished- an indication that 1^st Respondent is not interested in land.  I pray therefore this court orders that ware house which are part of the Land belong to 2^nd Respondent.  Lease of the land was attached to affidavit is support of 2^nd Respondent affidavit.

REPLY

Possibility of compensation should not arise because the 1^st Respondent has used the land for all these years without anything paid to the 2^nd Respondent.  1^st Respondent will therefore be benefitting from this illegal conduct.

That said if the court were of the view that 2^nd Respondent pay something then  the … of rent comes in from the time the 1^st Respondent  moved out of the land.  Rental would have to be determined, to determine now much ought to be paid from the ware house.  

REPLY

Political might of 1^st Respondent was not substantiated 

-	Ali Wake Attorney General Civil Case No 1355/93
-	Gondwe vs Attorney General Civil Case No. 261/93
-	Aboobalar vs Attorney General

Arguments that use of political connections were not upheld by court- matters were still caught within Limitation Act.

Court should look at section 22 of Deeds Reg. Act which says registration if Deed does not vest property- that i.e only evidence of title.  It does not talk of good title.  In the instant case there is affidavit of 2^nd Respondent original lease – that is only evidence of title but did not vest property to 2^nd defendant.

CORAM:	HON.JUSTICE NYIRENDA
		Counsel for the Plaintiff, Chilenga
		Counsel for the Defendant, 
		Court interpreter, Gonaulinji

Date:	29/06/06					Time:	 9:00am

Chilenga:	I seek leave to appeal to the supreme court in terms of 0rder 331 SC of DPP Rules since decision as made in chambers.  I pray accordingly.

A.K. C. Nyirenda
JUDGE

20/06/08
COURT RULING
Leave to appeal is granted. Whether the appellant would adduce fresh evidence before the court of Appeal is a matter that would have to be determined by that court on an appropriate application by the appellant.
Made in Chambers this 13^th day of July, 2006

A.K. C. Nyirenda
JUDGE