Court name
Supreme Court of Appeal
Case number
66 of 2007

Bwanali v Lilongwe City Assembly & Ors. (66 of 2007) [2004] MWSC 88 (23 August 2004);

Law report citations
Media neutral citation
[2004] MWSC 88
Headnote and holding:

This case determined the test for granting interlocutory mandatory injunctions in land ownership disputes.

The applicant sought an interlocutory injunction restraining the defendant from allowing vendors to occupy the applicant’s property and that all structures put up by the vendors be pulled down.

The applicant argued that she had the right to the property as a squatter who was regularized as the holder and requested to pay rent and development charges. However, the respondent argued that they had not approved regularization on the land and the illegal development since the applicant encroached on the tree belt and blocked a public foot path. 

The court noted that interlocutory orders are not meant to provide a final relief, preserving the status quo until the issue is determined. The court found that the applicant sought to get a remedy that was permanent in nature in the guise of seeking an interlocutory injunction. It was further noted that the court has the discretion of granting such interlocutory mandatory injunctions but has to exercise great caution. Mainly because of the risk of causing greater injustice. 

The court applied the rules on granting injunctions and found that there were triable issues from both parties that were equally persuasive. The court balanced the grant of the injunction and the injury that may have been occasioned to the defendant, and found it unnecessary to grant the order.

Accordingly, the application was dismissed with costs to the respondent.

IN
THE HIGH COURT OF MALAWI


LILONGWE
DISTRICT REGISTRY


BEING
MISC. CIVIL CAUSE NO. 66 OF 2007





BETWEEN





FATIMA
BWANALI …..….…..……………………..…. APPLICANT





-VS-





LILONGWE
CITY ASSEMBLY & OTHERS …. RESPONDENT








CORAM HON.
JUSTICE KAMANGA






Kalasa for
applicant



Ottober for
respondent



Chulu, Court
Interpreter





RULING






On 9th
July 2007 the court granted an order by way of injunction restraining
the respondent from continuing allowing vendors to occupy
the
applicant’s property on plot No. 23/SQ/01 and that all structures
put up by the vendors thereon be pulled down. The application
had
been made ex-parte upon applicant’s counsel indication that the
issue was extremely urgent. In granting the order, the court

indicated that the same would subsist for a period of fourteen days
subject to inter-party application.







On 21st
August 2007 the applicant moved the court by way of inter-party
summons on application for an injunction under Order 29 of the
Rules
of the Supreme Court seeking that the respondent be restrained from
continuing allowing vendors to occupy the applicant’s
property that
is aforementioned. There is an affidavit in support of the
application that is sworn by the applicant’s counsel.
The
respondent opposes the prayer and seeks that the application be
dismissed with costs.







This is the basis
for the applicant’s prayer as sworn by her counsel. The applicant
is the present holder of Lilongwe City Assembly
Plot No. 23/SQ/1 in
Area 23 which the applicant initially acquired as a squatter but was
later regularized as holder who was requested
to pay ground rent and
development charges. A memo for regularization of the title was
produced marked as “KRKI”. The contents
of this document read as
follows:







LILONGWE CITY ASSEMBLY MEMO



FROM : DIRECTOR OF PLANNING AND
DEVELOPMENT



TO : DIRECTOR OF FINANCE
(Attention: Cashier)



DATE : 06/11/06.







PAYMENT OF DEVELOPMENT
CHARGES/GROUND RENT/REGULARIZATION FEES/LEASE FEES FOR A PLOT NUMBER
23/SQ/1 IN AREA 23 IN TRADITIONAL HOUSING
AREA IN THE CITY OF
LILONGWE.



Please receive payment of
Development charges/Plot Regularization fees/Lease Processing fees
for the above plot as detailed below:







NAME OF APPLICANT : MISS
FATIMA BWANALI



PLOT NO. : 23/SQ/1



ADDRESS : P/BAG
1, LILONGWE.



AMOUNT : K400.00
R/N 133377 06/11/06







Then there is
“KRK2” dated 5
th
May 1998. It is a letter from the respondents to the applicants
titled ADOPTION SQUATTER SETTLEMENTS IN AREA 23. The contents
of
this document read as follows:



We would like to inform you
that this office is in the process of regularizing the land which you
illegally acquired and developed.



However, before this is done,
you are requested to pay regularization fee in the sum of K2,500.00
as detailed below.



[A breakdown is provided].



Please take note that failure
to pay these fees within a period of 30 days will result into
Lilongwe City Council auctioning your
property in order to recover
expenses incurred as specified above.



A copy of the applicants’
receipt as evidence of payment is attached.



It is the
applicant’s counsel’s submission that from the outset the
applicant had been enjoying reasonable possession of the
plot up and
until when the Respondent caused vendors to relocate from the
roadside to the applicant’s plot. That the applicant
went to
complain to the Respondent that vendors had encroached upon her
property and due to absence of toilet facilities the vendors
were
making her enjoyment of her property uncomfortable as she was
literally subjected to awful smells and most of the time she
has to
remove garbage which is all over the place. Further, the vendors
have removed the boundary beacons which the Respondent
had put in
place as a sign of demarcation of the applicant’s plot. Upon
receipt of the applicant’s complaint the respondents
undertook to
inspect the applicant’s plot with a view to removing the vendors
who had encroached into the plot and built hawkers
thereon but ever
since the report was issued, no action was taken by the respondent.
A copy of the Respondent’s inspection report
dated 26
th
February 2007 was produced.







The report read as
follows:







LILONGWE CITY ASSEMBLY



THA SECTION



INSPECTION REPORT



Plot Number - 23/SQ/1 Date:
26/02/07



Plot Owner - Miss Fatima
Bwanali



Name of Officer - H. Mambala



In the company of - ----
Charles Funuwayo



Reason for Inspection - Illegal
vending on squatter plot



No. 23/SQ/1







Beacons numbers and



Distance between
beacons- Boundary beacons removed







Findings - Vendors have
encroached into



The plot by building
hawkers,



some are selling food stuffs,
others are displaying their merchandize.







- Access road is blocked







Recommendation - Lets carry
out a joint inspection as soon as possible.







- Signed.



Estate Officer’s
remarks - [None].







It was submitted
on applicant’s behalf that the respondent’s action in collecting
daily revenue from the vendors compromises
their position and makes
it difficult for them to remove the vendors and demolish the
structures which the vendors have put on
the plot. As no action has
been taken by the respondents since the inspection report was issued.
The vendors cannot by themselves
move out of the applicant’s plot
except by the order of the court.







This is the
respondent’s position vis-à-vis the application as sworn by
Hastings Mumba, the Estate Manager. The respondent is
the owner of
Traditional Housing Area Plots within the city of Lilongwe including
the trespassed land being referred to as 23/SQ/1
which is the subject
matter of the application. The respondents have never allocated this
land to the applicant. The applicant
illegally occupied and
developed the land without the respondent’s permission and grant of
development permission. The respondent
upon noticing the squatters
and development on the land advised all concerned persons including
the applicant to apply for regularization
of the plots and the
illegal developments thereon for the respondent’s consideration.
The applicant applied for regularization
of the land which she
acquired and developed without the respondent’s consent and claims
to have paid fees for the land. After
inspection of the land, it was
observed that the land is for a tree belt and a public footpath
leading to the western part road
of Area 23. And by action of
development of a house and a toilet, the applicant has blocked the
tree belt and public footpath.
To date the respondents have not
approved the application for regularization on the land and the
illegal development thereon because
the applicant encroached on the
tree belt and has blocked a public Foot path such that no permanent
development can be permitted
on the land.







The respondent
also observed that the applicant has delayed in bringing this
application for an interlocutory injunction. The respondent
also
observed that there are no triable issues and there is no cause of
action and that damages can be an adequate remedy in this
matter.







Order 29 of the
Rules of the Supreme Court deals with the procedures for the exercise
of powers to make interlocutory orders. Interlocutory
Orders are
generally speaking orders that are intended to provide a remedy as
parties await determination of the substantive application.

Interlocutory Orders by their nature are not meant to provide a final
relief to the applicant. In most cases, they are only meant
to
provide a temporary relief in the form of preserving the status quo
until the issue which is the subject of the context is resolved.







Injunctions
generally are orders of the court restraining the commission or
continuance of some wrongful act and the general rule
is that an
application for grant of injunction by a plaintiff must be made after
the issue of writ or originating summons (029/IA/19
(1999 ed) except
for cases of emergency and in such scenarios it must be shown that
there are strong grounds to justify the application
being made
ex-prate.







In the matter at
hand, the application had originally been made ex-prate to wit my
brother Justice Nyirenda granted an order that
would subsist for a
period of 14 days from the 9
th
of July 2007. From the date that the order was granted up to date
21
st
August 2007, the court record does not bear any substantive action
from the application. That in itself is an oversight on applicants

counsel’s part [If it is to be so termed] that constraints this
court from dealing with this application. The applicant can
not seek
to get a remedy that will ultimately be permanent in nature and that
will also operate as a final determination under
the guise of seeking
an interlocutory relief see Lilongwe
City Vendors Association vs Lilongwe City Assembly (Civil Cause No.
618 of 2006).







Then there is the
issue of preserving the status quo pending determination of the
rights of parties in relation to the subject matter
of the dispute,
as being the primary basis for granting interlocutory injunctions.
Again a reading of the relief sought moves
one to believe that the
relief sought is mandatory though interlocutory. The applicant is
seeking that the respondent be restrained
from continuing allowing
vendors to occupy the applicant’s property and that all structures
put up by the vendors thereon be
pulled down. The practice of the
courts in granting interlocutory mandatory injunction has been that
the discretion to so order
be exercised with great caution. And much
as situations may arise where courts may be inclined to so order,
there may also be
other instances where a grant of an order of this
nature may have the consequence of creating a risk of greater
injustice if it
is granted rather than withheld at the interlocutory
stage. The affidavits in support of application by both parties
indicate
that there are triable issues from both parties. i.e. The
applicant avers that she has a right to property and the respondent
claims that the applicant has no claim of right to the property in
issue. The basis for holding either positions by either party
are
equally persuasive. The balance of convenience thereby persuades
this court to make a finding that observes that the granting
of the
order sought is unnecessary.







Now coupled with
the observation that as at today there is no substantive action. I
will not bother to dwell on the other grounds
that both counsels have
submitted in support of their applications. Suffice to observe that
there is no cause to grant the prayer.







Application is
dismissed with costs to the respondent.







MADE in Chambers
this 24
th
day of August, 2004.














I.
Kamanga


J
U D G E