IN THE HIGH COURT OF MALAWI
COMMERCIAL CASE NUMBER 89 OF 2012
PANNA LAKHANI PLAINTIFF
HASFA FARUK VINDHANI DEFENDANT
CORAM: THE HONORABLE MR. JUSTICE L P CHIKOPA
Theu Mr. of Counsel for the Plaintiff
Makwinja Ms. of Counsel for the Defendant
C Njala, Court Clerk
This is a tale of three cases. And Title Number Njewa 9/302[the Property]. The plaintiff believes that she entered into an agreement to buy Title Number Njewa 9/302 with the defendant’s father. This was in 2003. She went into occupation of the property. And to protect her presumed interests in the property she placed a caution thereon dated October 22, 2003. In 2011 the defendant demanded that the plaintiff starts paying rentals for the property. in July 2011 she levied distress and the Sheriff of Malawi collected from the plaintiff the sum of K3,480,000.00 in respect thereof. Not being amused the plaintiff on August 17, 2011 commenced Civil Cause Number 507 of 2011 in the High Court of Malawi General Division Lilongwe District Registry seeking inter alia orders restraining the defendant from levying distress on the property and the Sheriff from paying out the above sum to the defendant. She also obtained an ex parte interlocutory order of injunction restraining the defendant from levying further distress on the property. The order of injunction’s life was short. It was vacated by another order dated August 26, 2011.
Then there is Civil Cause Number 534 of 2011 also registered at the General
Division Lilongwe Registry of the High Court in October 2011. It is between the same parties in reverse. The defendant [therein the plaintiff] was seeking vacant possession of the property. This matter was not heard at all. It was later to be consolidated with Civil Cause Number 507 of 2011.
There was also Civil Cause Number 97 of 2011. Again registered at the Lilongwe Registry of the High Court General Division. This was filed in February 2011. The defendant herein was also plaintiff. The plaintiff was defendant together with the Attorney General. It was about the removal of the caution placed on the property by the plaintiff herein. It is the caution we have referred to hereinabove. For the avoidance of doubt we set out the Originating Summons in full.
‘….. The plaintiff Hafsa Faruk Vindhani the plaintiffs claims against the defendant the following declarations orders or reliefs:-
a. an Order requiring the 2nd defendant to cancel the registration of a Caution lodged by the first defendant on Plaintiff’s property known as Title Number Njewa 9/302;
b. a declaration that the 1st defendant is not entitled to register a Caution on the 1st plaintiff’s property known as Title Number Njewa 9/302;
c. an order that the 1st defendant do pay damages to the plaintiff for wrongfully lodging a caution on the plaintiff’s property known as Title Number Njewa 9/302; and
d. An order for costs against the defendants.
The grounds on which the plaintiff seeks the above stated relief/remedy are as follows:
a. The 1st defendant wrongfully lodged a Caution on the property belonging to the plaintiff known as Title Number Njewa 9/3029 (’the Premises’ from the defendant in or about 18th December 2009.
b. The Land Registrar breached his statutory duty to the Plaintiff in that he failed or neglected to notify the plaintiff that the first defendant has lodged a caution on her property’. [Sic]
By an order of the High Court Lilongwe Registry dated June 23, 2011 the caution referred to above was removed.
By a consent order dated September 21, 2011 Civil Causes Number 507 and 534 of 2011 were consolidated. We reproduce the relevant parts of the said order in whole:
2. the Senior Assistant Sheriff be removed as a party and 2nd defendant in Civil Cause Number 507 of 2011 and that all subsequent proceedings herein be amended accordingly.
3. the order dated 26th August 2011 in Civil Cause Number 507 of 2011 in favour of Hafsa Farook Vindhani vacating an interim injunction hitherto obtained by Panna Lakhani do stand provided that the proprietorship and any issues arising out of and connected with the warrant of distress at the instance of Hafsa Faruk Vindhani including the ultimate fate of the levy sum paid to the Assistant Sheriff be determined by the Court as part of the consolidated actions
4. Any further dealings with property Title Number Njewa 9/302 be and are hereby inhibited until further order of the Court or determination of the matter by the court;
5. by virtue of the consolidation order herein any proceedings including possession proceedings in Civil Cause Number 534 of 2011 due for hearing on 6th October 2011 at 0830 be and are hereby stayed until further order of the court or determination of the consolidated actions and such cause to proceed as if commenced by writ and subject to amendments as hereinafter appearing. [Sic]
By another order of November 21, 2011 the consolidated matter was transferred to the High Court Commercial Division Lilongwe Registry. The actual transfer was effected on November 6, 2012. The case was registered as Civil Cause Number 89 of 2012. On November 27, 2012 the matter was mentioned in this Court.
By a summons returnable on February 6, 2013 the defendant sought to have the action herein dismissed for being ‘an abuse of process, vexatious and frivolous’. It was supported by an affidavit sworn by Lydia Makwinja of Counsel. The summons is opposed. In support of such opposition is an affidavit sworn by Manuel Theu of Counsel. We noted that the affidavit in opposition was not signed by the deponent i.e. Counsel Manuel Theu. It is a defective affidavit in our judgment. The rules of procedure are clear as to how we should deal with such an affidavit. As we understand them we should not allow use of such an affidavit unless there is an application for leave to use it the defect notwithstanding. There was no such application from Counsel Theu. We should not therefore strictly speaking use the affidavit. Fortunately and the immediately foregoing notwithstanding it is clear that the factual issues herein are largely not in dispute. Not using the defective affidavit of Counsel Theu will not therefore have much effect on the factual positions herein.
We, if only for purposes of transparency, find it necessary to state that Counsel Theu raised two preliminary points. First that Counsel Makwinja’s affidavit is defective and should not therefore be used herein. There was in our view a lack of clarity as to why he came or why he wanted us to come to such conclusion. Not that it matters. That point is contained in the defective affidavit we have concluded unusable herein. That point is in our view neither here nor there. Secondly Counsel Theu prayed that that we should dismiss the summons out of hand. It is a waste of resources, only serves to delay a matter that was supposed to be expedited and an absurdity. The defendant in taking out this summons was according to Counsel Theu seeking to dismiss her own action in Civil Cause Number 534 of 2011. Again the point is neither here nor there. It is contained in the unusable defective affidavit. But even if it were not we would be quick to remind Counsel Theu that the matter in this Court is Civil Cause Number 89 of 2012. Not 534 of 2011 or any other. And the parties and their designations in Civil Cause Number 89 of 2012 are clear for all to see.
This is a civil matter. The rule of thumb therefore is that she who alleges must prove their allegation on a balance of probabilities. We will refer to the rest of the applicable law as we deal with the issues raised in this case.
It is by way of affidavits. There was one sworn by Lydia Makwinja and another by Manuel Theu both of Counsel. We have above said something about the latter affidavit being defective and therefore unusable herein. It still stands.
THE ISSUES AND A DISCUSSION THEREOF
There is one point for debate namely whether the issue of ownership and/or title of Title Number Njewa 9/302 was already determined in Civil Cause Number 97 of 2011 before the Lilongwe Registry of the High Court of Malawi and therefore res judicata. It seems obvious to us that if the answer be in the positive the respondent’s claim will indeed be frivolous vexatious and an abuse of the court process. If it be in the negative the applicant’s application will be thrown out and the consolidated matter allowed to proceed.
We will not belabor the issues. Civil Cause Number 97 of 2011 is the first in the trilogy of cases outlined above. The action revolved around the propriety of the caution which the respondent had lodged in relation to Title Number Njewa 9/302. We have above set out the relevant parts of the summons. The exact question in that case was in our judgment whether or not our plaintiff was entitled to register a caution against the property. Depending on the answer the court would then determine whether it should order the second defendant i.e. the Land Registrar to cancel the said caution and order the plaintiff to pay damages to the defendant. We quote the caution in full.
‘REGISTERED LAND ACT
TITLE NUMBER NJEWA 9/302
I, PANNA LAKHAN of Post Office Box 1622, Lilongwe claim an interest as legal owner in the above-mentioned Title and forbid the registration of dealings and the making of entries in the register relating to the Title altogether without my consent until this Caution has been withdrawn by me or removed by Order of the Court or the Registrar.
Dated this 22nd day of October 2003’
It is clear that one can only register a caution if they believe they have or actually have an interest in a piece of real property which they seek to protect via the caution. If they have no interest they have no business lodging a caution. In the instant case the plaintiff thought she had an interest namely legal ownership. In Civil Cause Number 97 of 2011 the question whether or not our plaintiff had an interest in Title Number Njewa 9/302 was raised. This was in paragraph (b) of the declarations sought in the summons and in paragraph (a) of the grounds on the basis of which the defendant sought the declarations. If we may the plaintiff now the defendant sought a declaration to the effect that the plaintiff was not entitled to register a caution because the property belonged to the defendant. The plaintiff could not in our judgment have been entitled to register a caution if she had no interest in Title Number Njewa 9/302 as claimed. The evidence before us is that the court in Civil Cause Number 97 of 2011 decided against maintaining the caution lodged by the plaintiff. Even Counsel Theu’s defective affidavit in paragraph 8.1.2 says:
‘on 23rd June 2011 the Court in the absence of both defendants to the cause ordered that the caution registered against the defendant be removed from the Land Register’. [Sic]
There might be imperfections in the above paragraph. There is no denying the fact however that the caution was ordered removed. Meaning if we proceed as we have done above that the plaintiff had and has no interest in Title Number Njewa 9/302. She was not, as she claimed, legal owner of Title Number Njewa 9/302. She could not therefore lodge a caution against the defendant’s ownership of and/or title to the same. It matters not in our view that the defendants may not have been present when the order was made. If our plaintiff thought her absence was a minus on the order’s propriety the way forward was not to wait until this summons to raise the issue. It was to issue process raising the matter with that or a higher court. Having let, so to speak, sleeping dogs lie she cannot now be heard to bring up the matter of the parties’ absence as an issue against the said order’s propriety. As if anyone prevented the defendants from being present. Or raising the matters of their absence at other fora. In any event we doubt whether it is a legal indeed procedural necessity that a party be present when an order is made in civil litigation. We have always thought the question is whether or not a party has been afforded a chance of a hearing. If the answer is yes it matters not in our judgment that a party was not present when a ruling on the matter is rendered. But and as we have said above that is all much ado about nothing. The immediately foregoing are issues raised in the defective affidavit. We bring them up as an aside really. On the other hand it is clear that the Court in Civil Cause Number 97 of 2011 decided on who has interest in and therefore owns the property in issue. That person was the defendant herein and not the plaintiff. That issue cannot come up for determination again in a court of jurisdiction equal to the one that decided Civil Cause Number 97 of 2011. It can only come up again in an appellate court. In the instant case it is and we find as a fact res judicata. If the plaintiff’s case herein is therefore premised on the fact that she owns or has title to Title Number Njewa 9/302 in the alternative that the defendant does not have title to or own the same then the case has to proceed on the footing that the question of who as between the parties owns or has title to the property was already determined in Civil Cause Number 97 of 2011 and cannot be resurrected in this or any other action except by way of appeal.
Then there is the matter of the consent order of consolidation of September 21, 2011. The plaintiff contends that the said order reserved for determination in these proceedings the question of title to or ownership of Title Number Njewa 9/302 and the distress warrant. That the defendant cannot therefore plead res judicata. Or that the said issues were already determined in Civil Cause Number 97 of 2011. We think certain things need to be emphasized here. First is a reiteration of the fact that a court’s decision once rendered stands until set aside by a court of competent jurisdiction. Civil Cause Number 97 of 2011 is the first in the trilogy of cases herein. Whatever was decided in that case has not been set aside by a court of competent jurisdiction. It still stands to date. Second is the fact that the consolidation herein involved only Civil Cause Numbers 507 and 534 of 2011. It did not include Civil Cause Number 97 of 2011. Whatever issues were thereby consolidated can only be those that arose and were still up for determination in Civil Causes Numbers 507 and 534 of 2011. Those in 97 of 2011 having been already determined could not have been included. Thirdly it is our considered view that the order of consolidation merely provided for better case management Civil Causes Number 507 and 534 of 2011. I.e. how the parties were going to get the actions determined. It never decided on the issues raised in the two actions. Fourthly and because the order in Civil Cause Number 97 of 2011 still stands whatever the consolidation order of September 21, 2011 provided for in relation to the issues in Civil Causes Number 507 and 534 should be read subject to the said order. Civil Cause Number 97 of 2011 having therefore decided that our plaintiff has no interest in the property she cannot raise the same issue in the consolidated cause. Whatever she had to say about her having an interest in Title Number Njewa 9/302 should have been raised in Civil Cause Number 97 of 2011. If she did not she has nobody to blame except herself. If she was not happy with the decision therein she should have at least appealed. But to allow her raise that issue in this action would be to allow the conclusion arrived at in Civil Cause Number 97 of 2011 namely that the plaintiff had no interest in the property in issue to be the subject of an appeal and/or review in a court of parallel jurisdiction. The law does not allow that. Neither can this Court. This court has no jurisdiction to hear appeals/reviews from the court that decided Civil Cause Number 97 of 2011. The order of consolidation did not retrieve the situation. The issue of title to or ownership of Title Number Njewa remains as determined by Civil Cause Number 97 of 2011.
CONCLUSIONS AND RELIEFS SOUGHT
The issue of whether the plaintiff has an interest and therefore ownership of Title Number Njewa 9/302 was already determined in Civil Cause Number 97 of 2011. The plaintiff cannot raise that issue again in this action. It is res judicata. To that extent the plaintiff’s action is therefore frivolous, vexatious and an abuse of the court process. The defendant now prays that the plaintiff’s case be dismissed and judgment entered in her favour. We agree but only to the extent that the plaintiff’s case is premised on the fact that she owns or has title to Title Number Njewa 9/302 or that the defendant does not own the same. Question being to what extent is such the case? We look at the plaintiff’s claims.
The writ in Civil Cause Number 507 of 2011 sought ‘an order restraining the first defendant from levying distress for rent on property comprised in Title Number 9/302, an order restraining the second defendant from paying out to the first defendant the sum of MK3480000.0 received from the plaintiff, an order that the property comprised in Title Number Njewa 9/302 belongs to the plaintiff, and order mandating the second defendant to sign the transfer documents in respect of Title Number Njewa 9/302 in favour of the plaintiff and costs’. We would have wanted to proceed by the statement of claim that accompanied this writ as well. We should not. There is a mix up as to what property is in issue. Paragraph 2 thereof speaks of Title Number Njewa 9/302. Paragraph 8[where the plaintiff makes her claims] on other hand talks of Title Number Njewa 9/244. It surely must be a different piece of land. In the absence of an amendment to sort out the above anomaly we would rather we proceeded only on the basis of the endorsement on the writ of summons. And in doing so there is no doubt what the plaintiff’s story is all about. She believes she is the owner/title holder of Title Number Njewa 9/02. That is why she thinks she is entitled to orders restraining the defendant from levying distress, from accessing the K3440000.00[Sic], declaring her as the owner of the property and yet another requiring the second defendant to sign the property’s transfer documents into her name. To determine those issues we as a matter of course have to once more decide on who as between the parties owns or has title to Title Number Njewa 9/302. The same will be said about the order of consolidation. It raises the issues of the warrant of distress, the levy sum now with the Sheriff and possession of the property. To determine those issues we first have to deal with the question of who as between the plaintiff and the defendant owns the property. That as we have concluded above is a question that was answered in Civil Cause Number 97 of 2011. The order of consolidation in our view wrongly assumed that there is a dispute as to ownership of Title Number Njewa 9/302 when in point of fact there was none. In so far as the plaintiff’s claim is therefore as set out in her writ of August 17, 2011 and the order of consolidation the same is untenable. The claim assumes that there is a dispute as to who owns the property when there is in fact no such dispute. A court of competent jurisdiction already decided that it does not belong to the plaintiff. The plaintiff’s case against the defendant is hereby dismissed.
There is also on record an amended writ and statement of claim dated September 27, 2011. It was filed in the High Court, General Division, Lilongwe Registry. For some reason it was not issued. It could not therefore have been served on any of the defendants. There is actually no evidence to that effect. The nonissuance may not have been the plaintiff’s fault. But that is beside the point. The fact of the matter is that both the writ and statement of claim [if they are in issue at all] are premised on the ground that the question of who owns the property has not been adjudicated upon. Such is not the case. The matter of title to or ownership of Title Number Njewa 9/302 was already decided in Civil Cause Number 97 of 2011. The property is the defendant’s. It is not the plaintiff’s. There was a tenant and landlord relationship between the plaintiff and the defendant. She therefore had business levying distress for nonpayment of rent. The plaintiff’s claim of impropriety against the warrant of distress is untenable. Neither is any claim for damages in relation thereto. Similarly untenable are claims that the levy sum i.e. the sum of K3,440,000.00 now with the Assistant Sheriff, be paid back to the plaintiff with interest; that she be paid damages for trespass; that an order be made to the effect that the property belongs to her; and that the defendant be mandated to sign the transfer documents in respect of Title Number Njewa 9/302 in favour of the plaintiffs. The distress was perfectly legal. In our considered judgment the defendant and not the plaintiff is entitled to the levy sum. We are aware that one need only be in possession of a property trespassed in order to claim in trespass. It is clear however that the plaintiff’s claim for trespass is not based on the fact that she was in possession of the property via the tenancy. Rather on the premise that she and not the defendant owned the property. That the defendant therefore had no lawful authority to instruct the Sheriff to levy distress. The opposite is in fact true. The defendant therefore had the lawful authority to move, via the Sheriff, for distress. There could not have been any trespass. There cannot be any claim for damages in respect of trespass. No order can also be made to the effect that Title Number Njewa 9/302 belongs to the plaintiff or mandating the defendant to sign documents transferring the said property to the plaintiff. There is already an order to the effect that the plaintiff has no interest in the said property. That she does not own it.
The plaintiff also seeks a refund with interest of the sum of K393,406.45. This sum was allegedly paid by her on behalf of Faruk Vindhani to some bank in order to procure the discharge of the property. This money in our view is a debt. It therefore has nothing to do with who owns Title Number Njewa 9/302. The plaintiff is free to pursue the said claim against the defendant and/or Faruk Vindhani. We doubt though whether this would be an appropriate court in which to pursue such claim. We shall leave that to her wisdom.
The order of consolidation barred further dealings in Title Number Njewa 9/302. The question is of course whether such order is tenable in view of our conclusions hereinabove. It is not. The order of consolidation should be read subject to the order of the Court in Civil Cause Number 97 of 2011 which confirmed that the property was that of the defendant and not the plaintiff. It is also clear that the consolidation order proceeded on the wrongful premise that the question of who owned the property was still up in the air. That there might be a competing interest. We now know that the property belonged at all material times to the defendant. That there is in fact no competing interest. The defendant should not needlessly be denied a chance to deal with the property as she wishes.
The defendant on her part prayed that judgment be entered in her favour. She seeks vacant possession of the property. The same has been held up because of the erroneous belief that there was still a dispute as to ownership. There is no such dispute. There is nothing to stop the defendant from having vacant possession of the property. An order to that effect is granted. There is also the levy sum now with the Sheriff. It was withheld because of a presumed illegal distress. Such is not the case. The said sum will, if it continues to be so withheld be paid over to the defendant within 21 days from the date hereof together with any interest at bank lending rate ruling on the date hereof from August 26, 2011 to the date it shall be paid in full.
The plaintiff will have costs of this action. She is the successful party and we see no reason why he should not have his costs.
Dated this February 27, 2013.
L P Chikopa