Andrew Chigalu and Another v Harold Somanje (Civil Appeal No. 113 of 2018) [2026] MWHC 58 (16 September 2026)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY Civil Appeal number 113 of 2018 BETWEEN ANDREW CHIGALU AND BRIGHTON CHIGALU APPELLANTS AND HAROLD SOMANJE RESPONDENT Coram JUSTICE CHIMBIZGANT MATAPA KACHECHE Tandwe of Counsel for the Appellant Kumitengo of Counsel for the Respondent MsE Chimang’anga Court Clerk was grabbing land that was left to him by his parents. - The trial was conducted on various dates in February, March and April 2018, Judgment was delivered on 25t May, 2018 in favour of the respondent. Arthur was dissatisfied and brought this appeal. The appeal delayed due to the fact that the Court record took inordinately long to be prepared. However, after struggles the record was ready and we heard this appeal, Meanwhile, Arthur died before the appeal was heard. As such Brighton Chigalu, customary land contrary to section 39 (2) of the Courts Act. 4.2.The said court erred in law in that even if it had jurisdiction, which is denied, it disregarded completely the evidence of the appellant on the title to or ownership of the piece of land subject to the action before the court 4.3.The said court erred in law in making an order that was generally against the weight of evidence. District. This land previously belonged to or was used by the Zambezi Industrial Mission. In or around 1959, the mission handed over the Jand to the Government of Nyasaland for it to be given back to the indigenous inhabitants, - The evidence on who acquired the land did not come from the respondent — claimant in the lower court, He merely stated that Arthur wanted to lease the land on which he 1 lives, which he inherited from his father, Richard, who died in 2017. He stated that before his death, his father called all his nephews — meaning the Chigalu siblings - five in number, and gave them part of his land. He left the remaining part for his children. In cross-examination he stated that Richard inherited from his father — meaning the parties’ grandfather. He did not state how the grandfather acquired the land or the then came with land surveyors and started the process of leasing the whole of the land —i.e. the one left to the Chigalus and the land left to him. We are unable to te]] whether the omission to mention the process through which his grandfather acquired the Jand or the tenure on which the land was held was deliberate or for lack of legal skill. He disclosed that the lease that was being proposed was a joint one - for Arthur and himself. He does not State why he refused the joint lease considering that the same would secure both parties rights over the land. . It was Margaret Somanje, a sister to both Jessie and Richard who came as the second witness for the respondent. Her evidence was brief, The parties are her nephews, the Plaintiff being the son to her brother while the defendant was the son to her sister, It was Jessie who bought the land which “was being used by my father at Dombole.... After the death of my father my brother went to live on the land.... My brother died, | told the DPlaintiff not to leave this land....” From this statement there is one fact that €omes out clear — that the land was bought by Jessie. Crucially, the witness did not state that the land was bought for the father or for the family. What [ get from this testimony is that the father was given permission to use the land not to own the land. Further, the witness did not state the arrangement through which Richard came to stay on the land other than simply stating that he came after the death of the father. F urther she did not explain why she told the respondent not to leave the land after the death of Richard. - The other witness who stated categorically that the land belonged to Jessie Chigalu was PW 4, Simeon Chaola. He witnessed the distribution of the land to the Chigalus 12. and he signed the written evidence of the land distribution. He interpreted the document as a will. The other two witnesses were simply witnesses to the distribution of the land. The fact of the distribution has not been disputed. which the Jand was held, He said the land was given to his mother by the District Commissioner for Ntcheu. The land was left in the hands of her father and Jessie later assigned the respondent’s father to live on the land. After the death of Jessie, Richard occupied the house belonging to the defendant’s father — which was built by Jessie. It was in 2014 that the respondent was taken in by his father, Richard, to occupy the land. Richard died in July, 2017. In August, 2017 Arthur noted that trees were being cleared on the land. He was not happy and he asked the respondent to leave the land. They discussed the issue and they resolved that they should be co- managing the land. The respondent did not cease hig acts of destruction of the forest at which point Arthur reported to the Department of Forestry. Officers of the department talked to the respondent. However, Arthur then decided to lease the land without discussing with the respondent. The Village Headman refused to sign lease documents. At that point Arthur took the documents to the T/A who summoned both parties and advised them to lease the Jand. - In cross-examination Arthur admitted that the respondent was cultivating the land that used to be cultivated by Richard. That fruit trees on the land were planted by the grandfather and that Richard made some dams on the land. To the questions from the court he answered that he did not know when the fisheries dams were constructed but that they are being managed by the respondent. . Brighton was the second witness. He just stated that the land belonged to Jessie but did not say how the same Wwas acquired. He also testified that the respondent had lived on the land since he was young and that the Chigalus had never lived on the land. 15, le. At some point Arthur asked the court to allow him to look for the title documents of the land. But despite his best efforts he failed to track them. Instead he called his father, as DW 3 to testify on the issues surrounding title to the land. It was DW 3, Josiah Martins Chigalu who brought a different perspective concerning the land. He is the father to the Chigalus and husband to Jessie. In June, 1959 he was placed on house arrest during the state of emergency. At the time his father in law, the parties® grandfather, was a member of Ntchey District Council. In August or September 1959 the Zambezi Industrial Mission at Dombole decided to give the land back to the owners, the locals, the chiefs, The Mission presented the issue to the District Council who informed the chiefs to show their interest on the land. He says “Mr. Somanje told us” to write a letter to apply for the land. It is not clear in the evidence to whom “us” refers but I guess it refers to the witness and his wife. The witness gave the letter to Mr Somanje. They were “later told that Mr. Somanje had been given the land”, Again he says Mr. Somanje told “them” that when their condition of house arrest was lifted he would show them the land extent of the land. He told them to help in clearing the land, However, the land remained in Mr. Somanje’s control. He gave them another land at Namilulu. He does not state whether it meant a trade off or not. The short of it is that the land remained in the control of Mr. Somanje. He built houses on it and also kept his livestock there. When Richard became of age he went to Kaudza village where he was farming on his father’s land. Fast forward, after the death of Mr. Somanje Richard started taking over the properties of his father. He even chased his step mother from the land in dispute and demolished her house. He started demanding that his sister, Jessie, hand over the land to him, since the land was in her name. The matter was taken to Group Village Headman Kalumbu and later to T/A Njolomole. Jessie fell sick and passed away in 1995. He does not know how the issue Wwas resolved at the T/A Njolomole. Richard came to Mr Chigalu’s place after the death of his sister where he collected everything and took them to Dombole where he occupied his father’s house. The witness lost interest in the land thereafter. 17. 18. 19. 20. 21. In Cross-examination he stated that his father—in-law, Mr. Somanje was a mere caretaker of the land. Similarly, Richard was acaretaker. In further examination by the had no jurisdiction Section 39 (2) provided that no subordinate court shall have jurisdiction to deal with, try or determine any civil matter whenever the title to or ownership of land which s not customary land was in question. It has been submitted by the appellants that the land in question herein was not customary land and hence the Magistrate did not have jurisdiction. As such the proceedings were a nullity. The appellants rely on the fact that the land had been occupied by the Zambezj Industrial Mission, which they say held the land under a certificate of claim, Admitting that there was no copy of the said certificate of claim in the lower court, they still insist that the Mission could not have held the land under customary law tenure, They cite Brooke»Taylor’s unpublished Land Law in Malawi Manual. The respondent on the other hand refutes this. He submits that there was no evidence in the lower court that the land was private land held under a certificate of claim. The fact that the land was in the hands of missionaries in itself is no conclusive evidence that it was held under a certificate of claim. 23. Central Africa Gazette, April 30t 1903) which he quotes from refers to what happened in the Shire Highlands. From that one may not conclude that the narration refers to what happened elsewhere in the country. Fi urther, the Passage that the manyal refers to, asserts that Her Majesty’s Commissioner, Sir Hi{ Johnston “at various dates examined claims of different concessionaries”. This statement does not mean he was previously in the hands of Zambezi Industria} Mission is no conclusive evidence that it was private land at that time. Even if jt was, such fact could not have been obvious to the Court simply by reference to the fact that the land was previously held by the Mission. But stating that therc was no direct evidence of the type of land in question does not mean that there was no evidence at all that the land was not customary. The evidence of Arthur and that of his father Josiah Chigalu was not challenged in any way. The 24. Itis trite law that a court or tribunal must be satisfied of its jurisdiction over the subject matter in dispute before it can take up the matter or proceed to make decisions on it. Whete a tribunal lacks such Jurisdiction all the proceedings before it are a nullity. 25. In this case the Court did not examine and satisfy itself concerning its jurisdiction over the subject matter, Had it done so it could have found that it lacked Jjurisdiction despite the parties themselves not raising the issue. On this ground alone the appeal succeeds. 26.1 would have stopped here but I think [ need to deal with the other issues that arose in the matter so that there could be closure 1o some of them. Relating to the issue of whether the land was customary or not, the respondent produced an offer of lease Purportedly given to the respondent. The respondent argues that this offer is evidence that the land is not private land as, if it were, the Ministry of Lands would have discovered the same at the time they received the application for lease. 27.1 would like to state that the offer of lease was not in the lower court - that alone is enough to throw out the document. You cannot introduce new substantive evidence during the hearing of an appeal without leave of the Court. And in this case it was not even introduced by a witness but from the bar. In my view counsel did not act with the professionalism required of Counsel of his experience. Counsel shouid ensure to be more professional in his future conduct in the courts. 28. There arc other things I would like to mention about the Ppurported offer of lease. Firstly, it is clear on the offer itself that the land on offer js not the land we are dealing with in this matter. Counsel for the respondent conceded this fact but stated, again from the bar, that it was a mere typographic error on the document. One is left wondering what counsel was thinking even coming up with such a ridiculous response. Procedurally such a response should have been by the person who authored the document and not counsel who is not a witness but a mere legal representative of the respondent. 30. 31 Whether the court erred in disregarding the evidence of the appellant on title The appellants have submitted that the evidence showed that the land was allocated to the claimant’s mother after Zambezi Industrial Mission relinquished it. They say the court seems not to have considered this fact. The respondent insists that the appellant never produced evidence that the land was registered or had been registered by the Zambezi Industrial Mission. He does not say how this fact has anything to do with the failure by the court to deal with the issue of title, or whether indeed the court actually dealt with the issue of title. court found that Jessie had simply helped her father acquire the land. The court further used that fact that the father did not show the Jessie the extent of the land against 32. 33 34, 35 caretaker. He had no right to distribute the land in Question either to himself or any other person, - For these reasong the appeal is allowed. The lower court erred both on the question of Jurisdiction and the merits. The decision is quashed. - The appellant shalt bear the costs of this appeal. Pronounced in Open Court this 16t day of September, 2026 at 10:15 a.m, Justice Chimbizgan; Matapa Kacheche 10