Tanga Clara v Kawinga Jafali (1842 of 2007) [2008] MWHC 204 (22 January 2008);
IN THE HIGH COURT OF MALAWI
PRINCIPAL REGISTRY
CIVIL CAUSE NUMBER 1842 OF 2007
CLARA ALLENA TANGA…………………………………..PLAINTIFF
- AND -
CORAM:
THE HONOURABL JUSTICE E. B. TWEA
Mr Kamwasi, of the Counsel for the plaintiff
Absent – Counsel for the defendant
Mrs Nkhoma – Official Interpreter
an injunction to be granted in his favour.
and resale of wares from South Africa. It is undisputed that the plaintiff, occasionally, would be away from home for protracted
periods.
It is averred by the defendant that a 16 year old son of the plaintiff told him that the plaintiffs creditors wanted to confiscate
the house in which the children lived for a debt that the plaintiff had failed to honour. At that time the plaintiff had been away
from home for a protracted period. The defendant averred that he declined to help.
mother has instructed him to sale the land in issue to him at the price of K150, 000.00. Out of good neighbourly intentions he agreed
to the demands and requests of the boy. He ordered him to bring senior relations to witness the transaction.
It was averred that the boy produced his aunt and they all appeared before traditional chiefs who sanctioned the transfer of the land,
from the plaintiff to the defendant. The defendants now claim that there was a valid land transaction through the son of the plaintiff.
an incomplete City approved building under construction. It was her evidence that since the misfeasance originated with her son she
was willing to refund the defendants money with normal interest.
Area jurisdiction. The plaintiff was in the process of leasing it. The defendant did not dispute this, but indeed confirmed, that
his subsequent search and enquiry revealed that the land was not leased land.
The defendant wants to remain on the land because he has cultivated maize on it.
or not. Further, I have to determine whether an injunction should be granted in favour of the defendant. It is not my duty, at this
point in time, to decide the rights of the parties.
right does the defendant have to protect?”
the minor son of the plaintiff was an agent of the plaintiff. On the face of it, it is clear that a minor does not have the legal
capacity to create a contract. Secondly, the defendant will have to prove that the other relatives of the plaintiff, whom the minor
called to his aid on the demand and request of the defendant, were agents. This will depend, first and foremost on their ages. The
other things that create an agency; express or implied will then come into play. Thirdly, the defendant has to prove that the so
called village headmen or Group Village headmen have jurisdiction over land which is controlled by the Blantyre City Assembly, albeit
under the Traditional Housing Area jurisdiction? Do these local authorities have the capacity to effect a transfer of land which
is under the jurisdiction of the Blantyre City Assembly?
not substantiated. Secondly, this does not dimish her right to the land. If it is hers she can do as she pleases. She is not bound
by the acts of her son.
plaintiff.
In any case, the defendant cultivation on the land would not be so substantial as to make it inequitable for him to be compensated
with damages.
The law is clear; “let the buyer be ware;” “caveat emptor.” This is the rule of law that a purchaser buys
at his own risk. He should have protected himself by not transacting with minor, verifying the instructions from the plaintiff or
acquiring an assignment from the so called creditors of the plaintiff. He never did. He has become wiser after the event.
at great expenses to the party that will fail to succeed. If Counsel were more mindful of the unjustifiable expenses, this matter
should have settled.
At the end of the day I find that the balance of justice is in favour of granting the permanent injunction in favour of the plaintiff
and I so order. Further, I order the plaintiff to pay the amount in dispute: K150, 000.00 plus the interest she is prepared to pay,
into court. This should arrest any unnecessary expenses for the parties.