The court held that when one is allotted customary land, one has the right to user for the surface only, in respect of what one can grow or build on the land. One does not have right of user to the sub-soil and whatever lies under. According to s 26 of the Land Act the minister responsible for land has control of customary land, its use and minerals on or under it.
The position in this case was therefore, that if the canals were dug for the purpose of laying irrigation pipes two metres in the ground, the government and the developer had a right to dig the land. The government and the developer, however, should refill the trenches and render the land useable by the citizens who do not wish to join the scheme. Should there be open canals or crops, or trees destroyed then, the citizens were entitled to compensation.
Accordingly, the court ordered that the government and developers should set out, on the maps and sketches, the locations of the lands of the objecting citizens which shall remain customary land. The court also ordered that all citizens maintain the spirit of the development project by respecting the rights of the citizens consenting or objecting to cede their lands to the scheme.
IN THE HIGH COURT OF MALAWI
CIVIL CAUSE NUMBER 2127 OF 2007
HENRY STEVEN CHISANGWALA ……………………DEFENDANT
CORAM: THE HONOURABLE JUSTICE E. B. TWEA