THE HIGH COURT OF MALAWI
APPEAL CASE NO. 7 OF 2008
2. NAISON LESTON
JUSTICE E.B. TWEA
Phillipo State advocate for the State
present and unrepresented
Mangison, Official Interpreter
U D G M E N T
appellants were charged and convicted before the First Grade
Magistrate Court at Midima on a charge of unlawful use of land
contrary to Section 316(1) of the Penal Code. They were sentenced to
pay a fine of K15,000 cash of which K10,000 each was to be
compensation, in default, 9 months imprisonment. They now appeal
against both the conviction and sentence.
State did not support the conviction.
particulars of the charge read as follows:-
Andrew Likhule and Naison Leston on the 31st day of
August 2007 at Siliya Village in the District of Chiradzulu
unlawfully used the piece of land belonging to Mr Jack Kandiyado
without his consent.
facts of the case were not disputed. The land in dispute belonged to
the late uncle of the appellants. When their uncle died
decided that the land would be distributed to orphaned members of the
family. While this was pending, one Mabvuto, a brother
appellants lived off the land. Later he sold the land to the
complainant without consulting the others. When this matter
light, it was referred to the village headman. The complainant was
ordered to get his refunds of the purchase price from
the family of
the appellants. The complainant resisted mainly because of the
appreciation in value after the developments he made
matter was again adjudicated upon by Traditional Authority Nkalo.
The decision was, again, in favour of the appellants. The
then went ahead to enter the land. The complainant then referred the
matter to Police.
appellant were arrested, charged and prosecuted.
section in issue reads as follows:-
316-(1) Any person who ploughs sows or otherwise cultivates any land
or who occupies, uses or damages any land or anything thereon,
freehold or leasehold title of which land is vested in any other
person, without the consent of the person in whom such title
vested or his agent, shall be guilty of a misdemeanor and shall be
liable to imprisonment for three years.
is clear from the facts that the land in issue was customary land.
This land therefore does not fall in the category of the
Section 316(1) of the Penal Code, to wit freehold or leasehold title.
For this reason a lone the charge is rendered defective.
from the evidence on record, it is clear that the complainant
the land from one Mabvuto when the lad was due for redistribution to
the orphaned members of the appellants family. To begin
customary land is vested in perpetuity in the President, as the legal
fetter, for the people of Malawi under Section 25 of
the Land Act.
No one individual has title to it. Therefore no one can sell it.
All individuals on customary land only have right
to user, not title
to the land. The right to user can be transferred, assigned,
abandoned, forfeited or surrendered but the land
cannot be alienated
by sale: Hon. David Faiti vs. Saulosi
Cause No. 1412 of 2005 (unreported
see also: Jayshree Patel vs. Khuze
Kapeta and Kaka Holdings Ltd Civil Cause No. 3277, 2003
(unreported) and Nicco J.G. Kamanga vs.
Jossianne le Clerq and Regional Commissioner for Lands Civil Cause
No. 2829 of 2006 (unreported ). One
Mabvuto therefore had no title or right to sell the customary land.
Further he had no right to assign it to
the complainant without the
consent of the other family members who had assigned him the right to
use the land pending re-distribution.
this vein therefore, the complainant could not have obtained title to
the land. Further, the rulings by this traditional authorities,
are vested with the authority to authorize use and occupation of
customary land under the supervision on the Minister responsible
land: Section 26 of the Lands Act, were correct.
applicants therefore were wrongly charged and convicted. As I said on
11th March when I
delivered my ruling in open court the conviction is quashed and the
sentence is set aside. Their obligations for
bail pending appeal are
also discharged. The fines, if paid, must be refunded to them.
appeal therefore succeed entirely.
in Open Court this 3rd
day of June, 2008 at Blantyre.