Shire Highlands Rifle Club v Makandi Tea and Coffee Estates Limited (Civil Cause No. 473 of 2010) [2016] MWHC 591 (29 August 2016);

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BETWEEN

IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

CIVIL CAUSE NO. 473 OF 2010

BETWEEN

SHIRE HIGHLANDS RIFLE CLUB .................................. PLAINTIFF

AND

MAKANDI TEA AND COFFEE ESTATES LIMITED ..........DEFENDANT

 

CORAM: HON. JUSTICE R. MBVUNDULA

Chipeta, Counsel for the Plaintiff Mhome. Counsel for the Defendant Minikwa, Official Interpreter

 

JUDGMENT

Facts of the Case (The Parties' Pleadings)

In its statement of claim the plaintiff asserts that it was at all material times the owner in possession of land known as the Rifle Range at Makandi in Bvumbwe, the said land having been given to it, in the 1940s by Lonrho Limited, the defendant's predecessor, and that the plaintiff has been in possession of and has used the said piece of land for various shooting activities and fellowships for over 60 years. The plaintiff adds that since around November 2009 the defendant has on divers occasions wrongfully entered and cleared up the said land for planting, destroyed structural steel targets and its machinery and pulled down concrete works, whereby the plaintiff has suffered loss and damage. It is further pleaded that the plaintiff threatens and intends, unless restrained by the court, to continue doing the acts complained of. In this regard the court record will show that this court granted the plaintiff an interlocutory injunction restraining the defendant from indulging in the activities complained of, until the determination of this action. The plaintiff seeks the following reliefs:

i)          a declaration that the defendant is not entitled to enter and interfere with the land aforesaid;

ii)         an injunction restraining the defendant whether by themselves or their servants or agents or otherwise howsoever from entering or interfering with the said land;

iii)        damages for trespass ; and

iv)        further or other relief.

The defendant denies the facts asserted by the plaintiff as regards ownership of the land, as well as the alleged root of such ownership, and avers that instead the defendant permitted the plaintiff to use the land in exchange for rentals which rentals the plaintiff has neglected to pay, that the land is owned by the defendant, the plaintiff being a mere licensee on the said land. The defendant admits entering the land but denies that such entry was wrongful and contends that the land has always been owned and possessed by the defendant, hence the defendant has the legal right to put the land to any legal use it deems fit, including entry into the land. The defendant denies having caused any loss or damage to the plaintiff and denies that the plaintiff is entitled to the reliefs it seeks in this action.

Plaintiff's Evidence

The plaintiff called two witnesses both of whom filed witness statements and were cross-examined thereon. The first witness, Jagjit Singh Sohal, informed the court that he was the captain of the plaintiff club since the late 1980s to 2010 and that he was, at the time of testifying , the chairman of the Rifle Association of Malawi of which the plaintiff club is an affiliate.

He further informed the court that the plaintiff club was formed in the 1870s and that its membership comprises individuals , the Malawi Police Service and the Malawi Defence Force. Mr Sohal further stated that during its early years the club used places currently known as Blantyre Sports Club, Limbe Country Club and Mandala as shooting ranges before finally settling at the rifle range in Bvumbwe, a piece of land given to the club by the defendant's predecessor in the 1940s and that the plaintiff club has since that time been in possession of the land and has used it for various shooting activities and fellowships for over sixty years to the exclusion of everyone else as the plaintiff has always prevented anyone who is not one 0f its members from entering the land. In addition, he stated, the public has always deemed the land to be the plaintiff s. He cited several examples where permission was sought from the club by third parties, in order to use the land. Mr Sohal added that save for the land surrounding the range, which belongs to the defendant, the plaintiff has had exclusive care of the land by having its own warden on the land, and once every year, engaging Naming' omba Tea Estates or St. Andrews Secondary School to clear the grass on the range using tractors. Further, he stated, during the construction of the Limbe-Thyolo road the construction company had the range completely depleted by digging soil therefrom for purposes of road construction and it was the plaintiff who took up the issue with the company and made them to restore the lane to its original state. Mr Sohal then stated that in 2009 the plaintiff was planning to construct advanced facilities on the range in the form of a brick wall fence and a sophisticated club house when, in November of that year, the defendant entered and cleared up the land for planting, destroyed structural steel targets and machinery, and pulled down all concrete works thereon. During cross examination Mr Sohal said that he had no evidence of ownership of the range, nor did he know when ownership of the range transferred to the plaintiff. He said he had joined the club in late 1970s and had been a member since. He subsequently reiterated that it was the plaintiff who took care of the land comprising the range and that the defendant only took care of the lands surrounding it, and also the point that it was the plaintiff who took the constructor of the Thyolo-Limbe road to task about the condition the range had been left, adding that the defendant did not do anything about it.

The other witness for the plaintiff was Lorenzo Clive Watterston. He stated that he was the current captain of the plaintiff club and essentially repeated the plaintiff s claim to ownership of the land as well as the allegations as regards the defendant's invasion of the same in November 2009, as narrated by Mr Sohal. Mr Watterston also stated that at that time the plaintiff s members had organized a function which was to be held at the range, but preparations for the function were disrupted when the defendant, without notice, wrongfully entered and cleared up the land for planting, destroying, in the process , the items referred to in the evidence of Mr Sohal, to which he attributed the total value of K9 000 000.00. It was his evidence that all discussions with the defendant's officials proved futile so the plaintiff instituted the present proceedings. During cross examination Mr Watterston said that he did not have evidence of ownership and went on to say that he knew that "land can only be owned by written evidence". He said when the land was given to the club he was not around. He became captain of the club in 2009. He said that before entering the land the defendant did not give any notice and that they discovered the entry themselves. He also stated that he was not aware when the machinery was removed, and later, in re-examination, that he was not sure who removed the targets. Finally, Mr Watterston confessed, during cross examination to having no evidence of the K9 000 000.00 value attributed to the property allegedly destroyed by the defendant following entry.

Defendant's Evidence

Randwell Muskambo testified for the defendant. He informed the court that he had been in the employ of the defendant since 1976 and was, at the time of testifying, its Human Resources Manager. His account was that the land in dispute \Vas initially owned by the British Central Africa Limited between the 1940s and the early l970s, and that during that period the company permitted its employees and the British Central African Police Force to use the land for shooting practices. He stated further that in 1977 the company was sold to the Lonrho Group of companies and that the sale encompassed the land in question, and that the Lonrho group continued to permit its employees to use the land as a rifle range, and that it was the employees and some outsiders who formed the plaintiff club. Mr Muskambo went on to state that in 1977 the plaintiff club entered into an oral agreement to pay 1 shilling as rentals for their continued use of the range but in cross examination said that he had no knowledge of the plaintiff having paid the same as there were no records or documentation of the same. Later during re-examination he confessed that he bad no personal knowledge of the agreement as he had just heard from the accounts department that there was such an agreement.

Mr Muskambo also stated that the defendant had at all times maintained its title to the rifle range save for the fact that the plaintiff club had been licensed by the defendant to enter the land for purposes of using it as a rifle range. He produced, as evidence of the defendant's title to the land, a deed of conveyance between the Central Africa Company Limited and the defendant dated 24th July 1977, registered at the Deeds Registry as Deed Number 78121. He stated that the range is within Mpezo Estate particulars of which are described at page 7 of the Deed of Conveyance.

During cross examination Mr Muskambo said that he had never been a member of the plaintiff club, nor had the defendant been involved in the affairs of the club. In response to a question regarding to what extent his knowledge of the club was, he said that the fact that the club was in the defendant's territory made him knowledgeable of the club's affairs and that he should be relied on because of that fact, that it was difficult to separate the activities on the land. Mr Muskambo confessed that he had no knowledge of accounts and that at that moment "they" just relied on historical facts.

Court's Findings of Fact

I make the following findings of fact from the evidence.

1.  The defendant is the registered title holder of the land as evidenced by the deed referred to in the evidence of Mr Muskambo.

2.   The plaintiff has, however, been in physical occupation and possession thereof since, at least, the period from the 1970s when Mr Sohal joined the club through the 1980s to date, these facts being within Mr Sohal's personal knowledge. The plaintiff has therefore been in occupation and possession of the land for a minimum of some 40 years or so.

3.   The plaintiff enjoyed possession of the land uninterrupted until November 2009 when the defendant, without notice, entered upon the land as complained of by the plaintiff, and as conceded by the defendant.

4.   I accept the uncontroverted evidence of Mr Muskambo to the effect that the British Central Africa Limited, Lonrho Limited's predecessor in title to the land, permitted its employees and other persons to use the land for shooting practices, and that in 1977 the plaintiff club was formed, and continued to enjoy the permission, earlier granted by the company, to use the land as a shooting range.

5.   I also accept that the plaintiff, during the period of its occupation and use of the land, had exclusive control and took exclusive care of the land, and further that it restricted outsiders' access to the land. I take specific note, however, that no instance was cited to show that such restriction also applied to the defendant.

6.   I find the plaintiff s claim that the land was given to the plaintiff at some point in time not proved. The evidence of the two witnesses for the plaintiff on the point was unsatisfactory. Firstly, Mr Sohal conceded to have had no personal knowledge of the fact, and that there was no documentary or other proof of the same, rendering his evidence on the point hearsay and inadmissible. Equally, Mr Watterston did not sufficiently support his assertions with convincing evidence.

7.   Regarding the claim that the plaintiff was allowed by the defendant to use the land for a fee of 1 shilling I find the claim unproven. Mr Muskambo who testified to that effect conceded having no personal knowledge of the alleged oral agreement to that effect since he said that he was only told by someone in the defendant's accounts department about it and that there was no record or documentation pertaining to the same. His evidence on the point was therefore also hearsay and not admissible. Further, his claim that because the club was operating on the defendant's territory made him knowledgeable of the club's affairs, despite his not having been a member of the club, does not at all hold water. There is no acceptable evidence therefore that the plaintiff took possession of the land for a monetary consideration.

8. What remains regarding how the plaintiff came to be in possession of the land is that contained in the remainder of Mr Muskambo's evidence, namely that the British Central Africa Limited permitted its employees and the British Central African Police Force to use the land for shooting practices, and, more relevantly, that in 1977, whilst Mr Muskambo was in the employ of the defendant, the company was sold to the Lonrho group of companies which continued to permit its employees to use the land as a rifle range, and that it was the employees and some outsiders who formed the plaintiff club. This account was not disputed, save to the extent of the contradictory evidence of the plaintiff's two witnesses whose evidence on the point I have already found to be inadmissible or otherwise unreliable. In the premises it is my finding that the plaintiff club continued to enjoy the permission which the Lonrho group granted its employees and some outsiders to use the land as a rifle range, and that the said permission was gratuitous since the claim that it was for some monetary consideration was not proved.

9. Regarding the plaintiff's claim for the damage allegedly occasioned by the defendant to the plaintiff's property, it is my finding, on the totality of the evidence, that the defendant did interfere with the structures the plaintiff had erected on the land. The defendant failed to rebut the plaintiff's evidence to that effect.

Issue for Determination

The main issue for consideration is whether the defendant's entry upon the land, and all or any of its conduct incidental thereto, was wrongful at law, and, consequently, whether the declarations sought by the plaintiff are sustainable.

Submissions

The plaintiff's submissions are briefly as follows:

Firstly, that the plaintiff acquired the land by adverse possession on account of the fact that:

i.          the plaintiff, with an appropriate degree of physical control, was in factual possession of, and was using the land, with the necessary intention to possess the same (animuspossidendi) to the exclusion of the defendant and everyone else, as demonstrated by the fact that it was the plaintiff who took exclusive care of the land, and kept third parties out of the land and used it to generate income. The plaintiff in this regard cited section 6 of the Limitation Act and submitted that "an intention to take possession (animus possidendi ) from the start of the Limitation Period must be shown. What one must show is that what he did, he did with the intention of taking possession in mind . . ."; and

ii          the public perceived the land to be the plaintiff's;

Secondly, and in the alternative, that if the plaintiff did not acquire possession by adverse possession then it was a contractual licensee and that the licence could not be lawfully terminated without proper notice.

The defendant on its part submitted that the plaintiff was a mere licensee and that that being the case the plaintiff has no legal basis for claiming adverse possession as against the defendant, that the plaintiff has not had the intention to dispossess the defendant nor to have exclusive control and possession of it. It was also submitted that the defendant has a valid document of title showing the land as part of its Mpezo Estate, and since the defendant has paper title the court should ascribe possession to the defendant, as there is no evidence supporting a contrary finding. The defendant submitted, in conclusion, that it would be an affront to justice to hold that the defendant does not have possession when the best evidence is before the court.

Both parties cited legal authorities in support of their respective positions.

Legal Considerations and Determination

Section 6 of the Limitation Act provides:

"No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person."

Section 12 is also relevant. It is there provided:

"No right to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter referred to as "adversepossession'')... "

Mention must be made at the outset that in general, the operation of limitation statutes does not extinguish the cause of action but merely bars the remedy of bringing the action after the lapse of the specified time from the date when the cause of action arose: Mitchell v Harris Engineering Co. Ltd [1967] 2 Q.B. 703, per Lord Denning M.R. at 718. A defendant relying on the defence of limitation must expressly plead the relevant statute of limitation: Order 18 rule 8(1) of the Rules of the Supreme Court. Further, limitation is only a defence when raised in the pleadings: Kenneth v Brown [1980] 2 All ER 600.

In the present case it is observed firstly that the Limitation Act was not pleaded, and secondly that the same has been raised, albeit only at the submissions stage, not as a defence, but as an apparent cause of action. I would be of the view that this cannot obtain in view of the legal position just stated.

Having said that I will proceed to consider the substantive case.

From the judgment Slade J in Powell v McFarlane (1977) 38 P & CR 452 subsequently approved by the Court of Appeal in Buckinghamshire County Council v Moran [1989] 2 All ER 225 and the House of Lords in J A Pye (Oxford) Ltd v Graham [2002] 3 WLR 221; [2002] 3 All ER 865 emanates the principle that

"(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law, without reluctance, ascribes possession either to the paper owner or to per sons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ("animus possidendi''). " (at 470).

Slade J further stated:

"An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved." (emphasis supplied).

In Mbekeani v Nsewa [1993] 16(1) MLR 295 it was held that possession of the lawful owner's land for 12 years alone is not enough to constitute adverse possession. The person in occupation has to demonstrate that possession was coupled with an intention to occupy permanently to the exclusion of the legal owner. In addition to this, there is also the principle that the person claiming ownership by adverse possession must have entered or remained on the land, for not less than the period of limitation, without the permission of the person with the paper title. See J A Pye (Oxford) Ltd v Graham [2002] 3 WLR 221; [2002] 3 All ER 865 and, more recently, the Supreme Court of Appeal judgment in Hetherwick Mbale v Hissan Maganga Misc. Civil Appeal Cause No. 21 of 2013 (unreported). In the latter case the Mbendera JA, upon analysing the law on adverse possession as expounded i n the House of Lords decision in Pye's case, stated, at paragraph 83:

"The essence of adverse possession is a direct or implicit admission of encroachment that has lasted for so long. Given [the respondent's] disputation of encroachment, it was hardly possible to proceed with a claim for adverse possession. "

Further in the judgment, at paragraph 114, the learned Justice of Appeal noted that:

"... for purposes of S. 6 [of the Limitation Act], Pye's decision is important because upon analysis of the authorities going back to 1883, the House of Lords rejected the notion that the squatter should be required to o; 1st or exclude the paper title owner as well as all others or to act inconsistently with his user or adversely towards him. It was sufficient for the squatter to prove actual possession in the same way and extent to which possession must be proved to maintain an action for trespass. To establish actual possession, the squatter had to show absence of the pa per owner's consent." (emphasis supplied).

Indeed in his judgment Lord Browne-Wilkinson, in Pye 's case, ([2002] 3 All ER at page 874) said:

"The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.

It is clearly established that that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act. Beyond that ... the words possess and dispossess are to be given their ordinary meaning. " (emphasis supplied).

In assessing the evidence I arrived at the position that the plaintiff was in possession of the land in dispute by reason of the continuation of the permission granted by the Lonrho group to its employees and others to use the land as a shooting range, and that the claim was not proved that some monetary or any consideration moved from the plaintiff in respect thereof. At common law a permission to enter one's land for no consideration is termed a gratuitous or bare licence, and the grantee thereof, in this case, the plaintiff, is called a gratuitous or bare licensee. Cheshire and Burn's Modern Law of Real Property 13th edition, at page 553-554. By reason of the owner's permission to enter the land, such a person, for as long as the permission subsists, is not "a squatter" or "an encroacher" or "a trespasser".

A bare or gratuitous licence may be withdrawn at any time by the licensor, unless coupled with a grant or interest1: King Flower Limited v Lingadzi Farm Limited [1996] MLR 93; Cheshire and Burn’s Modern Law of Real Property, page 554. The licence herein was not coupled a grant or interest. From the legal point of view, therefore, the right was reserved unto the defendant, and this was in the contemplation of both parties, that at some point in the future the defendant could, without notice, withdraw the licence. I am of the firm view that possession of land and continuation thereof, by a licensee, by virtue of a permission which can at any time be lawfully withdrawn by the licensor is inconsistent with an intention, on the part of both the licensor and the licensee, that the licensee may permanently occupy that land to the exclusion of the licensor. The inference should rather be, as was put by Lord Brown-Wilkinson in Pye 's case (2002] All ER at page 877) that the licensee "had no intention to possess the land in the ordinary sense but only an intention to occupy it until needed by the paper owner". Here the requisite animus possidendi is lacking.

The plaintiff advanced the argument that because it was the one who took exclusive care of the land, kept outsiders from the land, and was perceived by the public to be the owner thereof, then the plaintiff acquired the land by adverse possession. In Powell v McFarlane (supra) the court stated further that

"...where the question is whether a trespasser has acquired possession ... the courts will ... require clear and affirmative evidence that the trespasser, claiming that he had acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he had intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. "(emphasis supplied).

I am unable to accede to the plaintiff's argument. That the plaintiff took exclusive care of the land does not unequivocally signify an intention to possess it to the exclusion of the paper title owner, for it is not inconceivable that taking care of the land should be the responsibility of the licensee in occupation.

The plaintiff went on to argue that adverse possession should be inferred from the fact that the plaintiff restricted entry onto the land by outsiders. But as earlier noted, the several examples given by the plaintiff to demonstrate that fact, did not include restrictions as against the defendant. And it is also quite plausible for the defendant to have kept away from the land in order to afford the plaintiff licensee quiet and peaceable enjoyment of the same. Cockburn J in Leigh v Jack (1879) 5 Ex D 264, at 271 said "If a man does not use his land, either by himself or some person claiming through him, he does not necessarily discontinue possession of it. " The mere fact that the plaintiff restricted outsiders (not amongst them the defendant) does not therefore conclusively lead to the inference that the defendant discontinued dispossession of the land, more so in light of the licence the plaintiff enjoyed over the land.

It is accordingly my finding that the test in Powell v McFalane has not been satisfied as the circumstances are open to more than one interpretation.

The position does not change out of the plaintiff s claim that the public perceived the land as belonging to the plaintiff. Perception alone, in my understanding of the dictum cited from Powell v McFalane, will not suffice: the claimant must make it "perfectly plain to the world at large by his actions or words that he had intended to exclude the owner as best he can" failing which "the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner." That notwithstanding, however, even if public perception would suffice, the claim herein would fail for lack of proof as no single member of the public, claiming to have laboured under such a perception, testified at the trial.

Conclusion

I come to the conclusion that that the plaintiff acquired title by adverse possession has not been established. Consequently I hold that the defendant's entry upon the land, albeit without notice, was not wrongful at law, and did not, therefore, amount to trespass to the land as trespass imports, inter alia, an unlawful entry. The plaintiff, in the circumstances, is not entitled to an injunction restraining the defendant from entering the land whether by itself or some other person.

I also find that even if the plaintiff would succeed on the question of adverse possession, they would fail for their omission to plead the Limitation Act, as well as the fact that the Act would only avail them if they had been the defendant to a claim for the land, which is not the case here.

Regarding the plaintiff s claim for the damages arising from the destruction of its property I find the claim proved except as regards the value thereof. It being the legal position that upon the termination of a bare licence, the licensee is entitled to reasonable time in which to remove his chattels, if any, and to leave the land: Minister of Health v Bellotti [1944] KB 298; [1944] 1 All ER 238; Australian Blue Metal Ltd v Hughes [1963] AC 74; [1962] 3 ALL ER 335, the defendant is liable to account for the items. The evidence of Mr Watterston fell short only of proving the value but was otherwise uncontroverted as to fact of damage and destruction.

Orders and Declarations

I make the following orders and declarations:

1.   The defendant is the owner and entitled to enter and have possession of the land;

2.   The injunction granted against the defendant is hereby vacated;

3.   The plaintiff s claim for damages for trespass is dismissed;

4.   The plaintiff is awarded damages for damage and loss of its property on the land at the time of the defendant's entry. In this connection the parties shall appear before the Registrar for an account of the property to be taken and damages for loss occasioned to be assessed accordingly.

Costs

The defendant having largely succeeded will have costs, except those in relation to the account for its property and assessment of damages.

Pronounced in open court at Blantyre this 29th day of August 2016.


____________

R. Mbvundula

JUDGE

______________________________________________________

1. i.e. where, in addition to the permission to enter the land, the licensee is given permission also enjoy or exploit some interest on the land, e.g. to grow timber or to kill game.