JUDICIARY

IN THE HIGH COURT OF MALAWI

PRINCIPAL REGISTRY

CIVIL CAUSE NUMBER 1842 OF 2007

BETWEEN:

CLARA ALLENA TANGA…………………………………..PLAINTIFF

- AND -

JAFALI KAWINGA ………………………………………DEFENDANT

CORAM: THE HONOURABL JUSTICE E. B. TWEA

Mr Kamwasi, of the Counsel
for the plaintiff

Absent – Counsel for the defendant

Mrs Nkhoma – Official Interpreter

R U L I N G

Twea, J

This is an inter – parte application for an
injunction. In the defendants affidavit in opposition, there is a
cross prayer for
an injunction to be granted in his favour.

The undisputed facts of this matter are that the
plaintiff and the defendant are neighbours. Both of them carry on
business of
importation 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.

Later the boy persisted to the point of crying that they
would lose the house. He told the court that the boy informed him
that
his 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.

The plaintiff averred that she was not aware of the debt
in issue, nor did she sanction her son to sale the land on which she
had
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.

When the case was called, the plaintiff confirmed that
the land in issue is under the Blantyre City Assembly, Traditional
Housing
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 plaintiff obtained an interim injunction to keep the
defendant off the land to allow her to continue the construction of
her
house. The defendant wants to remain on the land because he has
cultivated maize on it.

This matter is before me to decide whether or not the
injunction in favour of the plaintiff should be extended and made
permanent
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.

The principles in the celebrated case of American
Cynamid Vs Ethicon Ltd [1975] AC 396 are
well known. First and foremost is that there must be a right to
protect. The first question that comes to mind is “what
right
does the defendant have to protect?”

The only answer is “title to the land in issue.” To
obtain such a right to title, the defendant will have to prove that
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?

I note that the defendant argued that the plaintiff
should not be allowed to get the land because she may resale it.
First this
was 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.

These are the serious, issues that the court will look
at. So far they all militate against the defendant and are in favour
of
the 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.

Further, I note that the facts show that although the
defendant was pro – active to be a prudent buyer, he did not go far
enough.
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.

Last but not least I wish to acknowledge the willingness
and attempt to settle this matter out of court. This chance is being
squandered
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.

Pronounced in Chambers
this 23^rd day of
January, 2008 at Blantyre.

E. B. Twea

JUDGE