IN THE HIGH COURT OF MALAWI
LILONGWE DISTRICT REGISTRY
CIVIL CASE NO. 195 OF 2006
RESERVE BANK OF MALAWI…………………………PLAINTIFF
BLANTYRE CITY ASSEMBLY...…………………1ST DEFENDANT
SIGELE HARRISON MBENDERA...……………2ND DEFENDANT
CORAM: MANDA, SENIOR DEPUTY REGISTRAR
Chioza for the plaintiff
Chisale for the 2nd defendant
Chulu Court Clerk
This is a summons taken out by the plaintiff for summary possession of land which has been taken out under Order 113 rule 2 of the Rules of the Supreme Court. The summons was supported by an affidavit and counsel for the plaintiff did also file skeleton arguments, which I have had the occasion to go through. This application is opposed by the second defendant, who did file an affidavit in opposition and skeleton arguments.
The substance of the application is that the plaintiff seeks to take possession of the property on plot number CSS/22/6, situate at Chilomoni Township in the city of Blantyre. In this regard, it was the plaintiff’s submission that they did advance a loan of up to K2, 183, 550.00 to a Mr. Allan Konzamkamwa, who is working for the Bank as an internal auditor but is currently on suspension. The plaintiff’s further continued to aver that whilst so suspended, Mr. Konzamkamwa sold the house to the Second Defendant, Sigele Harrison Mbendera, an act which the plaintiff states was contrary to the Housing Loan Scheme under which Mr. Konzamkamwa was advanced the loan to buy the property. In particular, the purported sell of the house by Mr. Konzamkamwa, was contrary to clause 6 of an agreement that was executed between the Bank and Mr. Konzamkamwa, which clause does clearly stipulate that under no circumstances shall an employee who has benefited from the loan scheme sell the house, without permission of the Bank, whilst the loan was still outstanding. Indeed I should mention there is no dispute of the fact that the loan to the plaintiff is still outstanding and that Mr. Konzamkamwa never sought permission from the Bank for the house to be sold.
In opposition to this application, the second defendant informed the court that she bought this house after she saw an advert placed in a paper by Nangi Estate Agents. It was her submission that before purchasing the said house she did confirm with Blantyre City Assembly that the house belonged to Mr. Konzamkamwa. The City Assembly got involved in this transaction because the house was located in a Traditional Housing Area. The second defendant then went on to state that after getting confirmation from the City Assembly, she did pay Mr. Konzamkamwa the sum of K2. 6 million as a purchase price for the house and that she later accompanied him to the City Assembly where an application was made to change ownership of the house into her name. However, the application for change of ownership did not go through on account that the Bank had served on the City Assembly an injunction preventing them from proceeding with the sell of the house.
It was the second defendant’s view that these proceedings were misconceived and that should be set aside. This was on account that the plaintiff was never at any point in time in possession or occupation of the premises for Order 113 of the Rules of the Supreme Court to apply. In this regard the second defendant cited the case of Brown and Clapperton Ltd v Phiri 12 MLR 404, which case I did have the occasion to go through. Having gone through the case I did note that in that instance the case involved the recovery of rent paid in advance and that the defendant was merely a tenant who remained in the house, (that was being leased on his behalf), following his dismissal from the plaintiff’s employment. I believe that the facts in the above case are quite different to the present circumstances because in this instance the matter involves a written agreement between the Bank and Mr. Konzamkamwa, which gave the Bank ownership of the land/house until the loan advanced to Mr. Konzamkamwa had been fully repaid. In this regard I would want to believe that the Bank had possession of the said property. More importantly by virtue of the said agreement Mr. Konzamkamwa did not have any mandate to transfer property that was legally not his. On this note I would agree with the decision of Justice Mzikamanda, (when he was Senior Deputy Registrar) in Reserve Bank of Malawi v Catherine Njolomole Civil Cause No. 186 of 1997 (unreported).
There is of course the argument that the second defendant is an innocent purchaser of the said house and that she would not have known that the plaintiff had any interests in the house as the same was not registered. Indeed much as I am willing to accept this fact at the same time I did note that Mr. Konzamkamwa was bound by an agreement at the time that he was purporting to sell the house. Indeed it was my considered opinion that what Mr. Konzamkamwa did was fraudulent and that to uphold his “sale” of the house would be tantamount to using the law as an instrument for perpetrating fraud.
Finally, having gone through this case, it is noted that it is not being disputed that the plaintiff gave a loan to Mr. Konzamkamwa and that whilst the loan was subsisting the latter was not supposed to dispose of the house without the written permission of the Bank. Apart from that it is quite clear to me that having facilitated the loan, the plaintiff has an interest in the land and the house being constructed thereon (see Reserve Bank of Malawi v Lonely Kalindang’oma Civil Cause No. 363 of 1997 (unreported)). Further, since the defendant has not fully paid-up the loan as agreed, the plaintiff was quite entitled to take up these proceedings and (from my assessment of the facts), also entitled to take possession of the land.
Having found this, I proceed to order that the plaintiff should take possession of this land/house within thirty days from the date of this ruling. The plaintiff is also awarded costs of these proceedings.
Made in Chambers this…………..day of………………………………….2006.
SENIOR DEPUTY REGISTRAR