IN THE HIGH COURT OF MALAWI
CIVIL CAUSE NUMBER 2127 OF 2007
DWANGWA CANE GROWERS TRUST…………………..PLAINTIFF
- AND -
HENRY STEVEN CHISANGWALA ……………………DEFENDANT
THE HONOURABLE JUSTICE E. B. TWEA
M/S Mhone and Kalua, of the Counsel
for the plaintiff
Mr Kadzakumanja, of the Counsel
for the defendant
Mary Mthunzi – Recording Officer
O R D E R
After due deliberations it is clear that the problem manifests itself as legal only because the rights of the parties were not properly
explained at the meetings.
The legal position is 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
section 26 of the Land Act the Minister responsible for land has control of a customary land, its use and minerals on or under it.
For the same reason one does not acqire right of user to the airspace.
The position therefore, is that, if the canals are dug for the purpose of laying irrigation pipes 2 metres in the ground, the Government
and the developer have 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 are entitled to compensation for the land and crops. However, it is important to remind the citizens that they will not
have the right to draw water from the open canals which will be property of the Government and the developer. They may however, take
advantage of the moisture that the open canals would bring.
I therefore order as follows:
that the objectors shall allow the Government and developers to dig canals and lay pipes for irrigation.