New Building Society, The v Bonongwe (Civil CauseNo..346 of 2004) ((Civil CauseNo..346 of 2004)) [2006] MWHC 108 (01 August 2006);

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IN THE HIGH COURT OF MALAWI

LILONGWE DISTRICT REGISTRY

CIVIL CAUSE No.346 OF 2004

BETWEEN

THE NEW BUILDING SOCIETY ………….. …………...….……….. PLAINTIFF

AND

DAVID SUMAILE BONONGWE ……… …………………………. DEFENDANT

AND

JONES SAMUEL CHAGOMA ………………………………………… 3RD PARTY


Coram: T.R. Ligowe : Assistant Registrar

Kadzakumanja: Counsel for 3rd Party

Mapila : Counsel for the Plaintiff

RULING

This is the third party’s application to be joined as a party to the proceedings brought under the inherent jurisdiction of the court. However, in the course of arguing the case counsel for the third party used provisions of Order 15 rule 6 of the Rules of the Supreme Court and so that provision will be employed in determining this application.


The plaintiff commenced action against the defendant as a chargor by originating summons under Order 88 R.S.C. and S.68 of the Registered Land Act applying that the defendant do deliver up possession of premises known as Title No. Alimaunde 49/19 at Area 49 in the City of Lilongwe following the power of sale by the plaintiff as chargee on the property.


The affidavit and supplementary affidavit in support of the application sworn by counsel for the 3rd party depose that the 3rd party bought the plot from one Mr. S. Kachingwe, took possession of it and he is in occupation of it. That the 3rd party intends to challenge ownership of the plot by the defendant and his creation of the charge thereon. A sale agreement has been exhibited and it is further deposed that Mr Kachingwe had good title to the land. A copy of Mr. Kachingwe’s Title Deed is exhibited.


On the other hand it is deposed by counsel for the plaintiff that Mr Kachingwe executed a sale agreement with the defendant on 12th August 1996 and thereafter a transfer of title to the defendant. The two instruments have been exhibited to the affidavit in reply.


Order 15 rule 6(2)(b)(ii) of the RSC provides that the court may order to be added as a party any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.


From the affidavits, there is a question as between the defendant and the 3rd party as to whether in the circumstances the defendant has good title to the land to warrant him create a charge on it. This question needs to be fully examine and determined, as the 3rd party is the one in possession of the land in question and is going to be affected by the power of sale. I therefore order that Jones Samuel Chagoma be added as a party. Costs will be in the cause.


Made in chambers this ……… day of August 2006.


T.R. Ligowe

ASSISTANT REGISTRAR