THE HIGH COURT OF MALAWI
MISC. CIVIL CAUSE NO. 66 OF 2007
CITY ASSEMBLY & OTHERS
July 2007 the court granted an order by way of injunction restraining
the respondent from continuing allowing vendors to occupy
applicants property on plot No. 23/SQ/01 and that all structures
put up by the vendors thereon be pulled down. The application
been made ex-parte upon applicants 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.
August 2007 the applicant moved the court by way of inter-party
summons on application for an injunction under Order 29 of the
of the Supreme Court seeking that the respondent be restrained from
continuing allowing vendors to occupy the applicants
is aforementioned. There is an affidavit in support of the
application that is sworn by the applicants counsel.
respondent opposes the prayer and seeks that the application be
dismissed with costs.
This is the basis
for the applicants 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
LILONGWE CITY ASSEMBLY MEMO
FROM : DIRECTOR OF PLANNING AND
TO : DIRECTOR OF FINANCE
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
Please receive payment of
Development charges/Plot Regularization fees/Lease Processing fees
for the above plot as detailed below:
NAME OF APPLICANT : MISS
PLOT NO. : 23/SQ/1
ADDRESS : P/BAG
AMOUNT : K400.00
R/N 133377 06/11/06
Then there is
KRK2 dated 5th
May 1998. It is a letter from the respondents to the applicants
titled ADOPTION SQUATTER SETTLEMENTS IN AREA 23. The contents
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
applicants counsels 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 applicants plot. That the applicant
complain to the Respondent that vendors had encroached upon her
property and due to absence of toilet facilities the vendors
making her enjoyment of her property uncomfortable as she was
literally subjected to awful smells and most of the time she
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 applicants plot. Upon
receipt of the applicants complaint the respondents
inspect the applicants 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 Respondents inspection report
February 2007 was produced.
The report read as
LILONGWE CITY ASSEMBLY
Plot Number - 23/SQ/1 Date:
Plot Owner - Miss Fatima
Name of Officer - H. Mambala
In the company of - ----
Reason for Inspection - Illegal
vending on squatter plot
Beacons numbers and
beacons- Boundary beacons removed
Findings - Vendors have
The plot by building
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.
remarks - [None].
It was submitted
on applicants behalf that the respondents 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 applicants plot
except by the order of the court.
This is the
respondents 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 respondents 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 respondents consideration.
The applicant applied for regularization
of the land which she
acquired and developed without the respondents 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.
also observed that the applicant has delayed in bringing this
application for an interlocutory injunction. The respondent
observed that there are no triable issues and there is no cause of
action and that damages can be an adequate remedy in this
Order 29 of the
Rules of the Supreme Court deals with the procedures for the exercise
of powers to make interlocutory orders. Interlocutory
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
provide a temporary relief in the form of preserving the status quo
until the issue which is the subject of the context is resolved.
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
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 9th
of July 2007. From the date that the order was granted up to date
August 2007, the court record does not bear any substantive action
from the application. That in itself is an oversight on applicants
counsels part [If it is to be so termed] that constraints this
court from dealing with this application. The applicant can
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 applicants 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
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
equally persuasive. The balance of convenience thereby persuades
this court to make a finding that observes that the granting
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.
dismissed with costs to the respondent.
MADE in Chambers
day of August, 2004.
U D G E