Jumbe v Kasema and 1 other (MSCA Miscellaneous Civil Application 46 of 2023) [2024] MWSC 2 (11 January 2024)

REPUBLIC OF MALAWI IN THE SUPREME COURT OF APPEAL SITTING AT BLANTYRE MSCA MISCELLANEOUS CIVIL APPLICATION NO. 46 OF 2023 (Being Civil Cause No. 110 of 2023 before the High Court, Principal Registry)

Between: Ted Sparks Jumbe ………………………..………………………………...………….Claimant -and- Christopher Kasema …………………………………………………….….……..1st Defendant The Attorney General (Land Registrar) & The Sheriff of Malawi …................2nd Defendant

Coram

THE HON. MR JUSTICE FE KAPANDA SC, JA Cassius Omar Chidothe , Counsel for the Claimant/Applicant C. Gondwe, Counsel for the 1st Respondent The Attorney General, Counsel for the 2nd Respondents E. Minikwa, Court Clerk

Dates of Hearing: 8 September 2023; 15 September 2023; and 26 September 2023 Date of Ruling: 11 January 2024

Ted Sparks Jumbe v. Charles Kasema _AG (Land Registrar and Sheriff of Malawi_Ruling_Injunctions in the SCA

Ruling

Ted Sparks Jumbe v. Charles Kasema _AG (Land Registrar and Sheriff of Malawi_Ruling_Injunctions in the SCA

Kapanda SC, JA:

Introduction

The Claimant seeks from this Court an order of interlocutory injunction restraining the:

(1) 1st Respondent and the Sheriff of Malawi either by themselves, their servants or agents or howsoever otherwise from enforcing or continuing to enforce or executing or continuing to execute the Warrant of Distress and Possession issued by the 1 st Respondent in his capacity as Administrator of the Estate of Jessie Kazinga Mkandawire and the Sheriff of Malawi (which warrant was issued by the Sheriff of Malawi on 6 th October, 2022) in respect of Property Title Number Nyambadwe 791 or giving effect or continuing to give effect or taking or continuing with any action based on the Warrant of Distress and Possession herein or doing anything with the like effect until the determination of this matter or a further order of the Court.

(2) 1st Respondent and the Sheriff of Ma lawi either by themselves, their servants, agents or howsoever otherwise from taking or maintaining possession of property Title Number Nyambadwe 791 or the goods they seized from the Applicant in execution of the Warrant of Distress and Possession herein or from selling or otherwise disposing off the property Title Number Nyambadwe 791 and the Applicant’s goods herein or otherwise interfering with the Applicant’s possession and use of the property Title Number Nyambadwe 791 and personal property (goods) herein or doing anything with the like effect until the determination of this matter or a further order of the Court.

It is well to note that the goods and chattels that were seized from Applicant were sold by public auction on 2 September, 2023 and MK3,203,000.00 was the amount realized . The Applicant claims that he was all along not aware of this fact. Consequently, the aspect of the injunction that seeks to restrain the Respondents from selling the goods that were levied by way of distress have been overtaken by events. However, the issue in respect of which the application remains relevant relate to the execution of the Warrant of Distress and Possession herein in so far they relate to property Title number Nyambadwe

791. Ted Sparks Jumbe v. Charles Kasema _AG (Land Registrar and Sheriff of Malawi_Ruling_Injunctions in the SCA

Thus, the application only proceeds on the issue of an order of interlocutory injunction that pertains to the issues relating to the Warrant of Distress and Possession on issues of possession and potential or risk of sale of the real property herein. As it were, the aspects of an injunction relating to the prevention of sale of the distrained goods are no longer the subject matter of the application and this Court will not make a determination thereon.

The application by the Claimant is supported by the affidavit of the Applicant (Ted Sparks Jumbe). It is opposed by the sworn statement of the 1 st Respondent (Charles Kasema) and Aaron Mbeya. The facts in the said affidavit of Mr. Ted Sparks Jumbe were disputed by Mr Massona who stated in his sworn statement that Mr Ted Spa rks Jumbe commenced an action in his name without his consent. Further, Mr. Massona has consistently denied receiving any payment from the Applicant for the house. It is in evidence that the said Mr Ted Sparks Jumbe is also facing criminal charges bordering on fraud and forgery pertaining to this very same issue and is currently on bail.

THE PARTIES’ ARGUMENTS Claimant’s arguments One of the questions that arose for determination is whether or not this Court has jurisdiction to hear and determine this application. This issue arose following the argument by the 2 nd Respondent; and was also brought up by the Court during the hearing of this application. The gist of the argument by the 2nd Respondent is that this is an appellate court and can only hear Appeals or applications arising in the context of an appeal. They contend that since there is no appeal against the decision of the Court below where it refused to grant an order of interlocutory injunction sought herein on without notice application this Court therefore has no jurisdiction to entertain the within application which basically is a fresh application before this Court. Their view is that the right course for the Applicant was to appeal against the decision of the Court below and apply before this Court for a stay of the decision of the Court below. Based on their argument , once an order of interlocutory injunction or interim relief is refused in the Court below there is no room for a party to make a fresh application before this Court. Ted Sparks Jumbe v. Charles Kasema _AG (Land Registrar and Sheriff of Malawi_Ruling_Injunctions in the SCA

It is the submission of the Claimant that the issue of jurisdiction as raised by the 2nd Respondents, and by this Court during the hearing of this application, bring into play the question of the nature of jurisdiction that the Supreme Court of Appeal ha s. For this, the Claimant drew this Court’s attention to Section 104(1) of the Constitution and argued that this section is general while Section 104(2) is specific but that Section 104(2) does not provide that that the hearing of Appeals is the sole jurisdiction of the Supreme Court of Appeal as the other jurisdiction of the Court can be found in “any other law”. It was further submitted that the term “any other law” entails all the sources of law which includes legislation and case law. He added that i n the context of legislation the jurisdiction of the Supreme Court of Appeal is found in the Supreme Court of Appeal Act and any rules made thereunder which include the Supreme Court of Appeal rules. The Claimant continued to argue that while there is no debate on the appellate jurisdiction of the Court , Order 2 Rule 1 of the Supreme Court of Appeal Rules provides for original jurisdiction of this Cour t. Further, the Claimant opines that recognition of the original jurisdiction of the Supreme Court of Appeal Rules is also see in the provisions of Order 1(3)(6) 1 read alongside Order 1 rule 5 of the Supreme Court of Appeal Rules.

It is the argument and submission of the Claimant that Order 2 Rule 1, Order 1(3)(6) 1 read alongside Order 1 rule 5 of the Supreme Court of Appeal Rules , demonstrate that the Supreme Court of Appeal has original jurisdiction but that the legislation has not specified the situations when the Supreme Court of Appeal can exercise original jurisdiction. The Claimant submitted further that case law has however come up with some of the situations when the Supreme Court can exercise original jurisdiction. He added that o ne such situation relates to applications for judicial review, interlocutory orders and interim reliefs. Thus, in the further view of the Claimant, where the High Court refuses to grant any of these applications or vacates an o rder granting permissions to apply for judicial review or an interlocutory order or interim relief the law is that the aggrieved party does not come to this Court by way of appeal but such part y is required to make a fresh application before a single numbe r of the Supreme Court of Appeal. In support of this submission the Claimant referred to this Court the case of the State (on the application of Flatland Timbers Ltd v. Department of Forestry [Director of Forestry 1 and The State (on the

1 MSCA Civil Case Number 25 of 2021 Ted Sparks Jumbe v. Charles Kasema _AG (Land Registrar and Sheriff of Malawi_Ruling_Injunctions in the SCA

application of the Malawi Revenue Authority v . Chairperson of the Industrial Relations Court and Roza Mbilizi2.

The Claimant continued to argue that the position at law is that the High Court decisions on interlocutory reliefs are inchoate and not appealable to the Supreme Court of Appeal as only final Judgements are appealable to the Supreme Court of Appeal. The Court was then referred to the case of JTI Leaf (Malawi) Limited v. Kad Kapachika3 in support of the argiukent that High Court decisions on interlocutory reliefs are inchoate and not appealable to the Supreme Court of Appeal.

It is the view of the Applicant that, from the authorities above, the position at law is twofold viz. (a) that where the High Court makes a decision on an application for interlocutory order or interim relief and a party is aggrieved therewith, the aggrieved party is not supposed to appeal against the decision but file a fresh application before this Court. The Claimant continued to argue that this is regardless of whether the application for interlocutory order or interim relief in the context of an appeal or not. (b) that inchoate appeals are not allowed as this Court only hears appeals on final judgements and not decisions on applications for interlocutory orders or interim reliefs. As it were, the Claimant contends that this Court exercises original jurisdiction with respect to applications for interlocutory orders or interim reliefs at the instance of a fresh application by a party who is aggrieved with the decision of the High Court on an application of interlocutory order or interim relief. He concludes by submitting that t he established position of the law is that this Court has both appellate and original jurisdiction to hear and enterta in fresh applications for permission for judicial review, interlocutory orders or interim reliefs.

As regards the reason why the Claimant desires an interlocutory injunction issued, it is submitted that the application for an order of interlocutory injun ction was initially, inter alia, intended to prevent the sale of the Applicant’s goods and prevent the sale of the property Title Number Nyambadwe 791 so as to ensure that the subject matter of the action is preserved until determination of the matter since the subject matter is very likely not to be recovered if it is sold

2 ; see also Dalitso General Suppliers Limited v. National Bank of Malawi MSCA Misc. Civil Application No. 19 of

3 MSCA Civil Appeal No. 52 of 2016 Ted Sparks Jumbe v. Charles Kasema _AG (Land Registrar and Sheriff of Malawi_Ruling_Injunctions in the SCA

and the Applicant succeeds in this action in the Court below. It is further submitted by the Claimant that if he is to be required to appeal against that decision he would be left with no room for an urgent interim relief in a situation where it is merited as the Appeal process is always long and would not serve any purpose in so far as the urgent interim relief is concerned since such a stay would not prevent its sale. In sum, the Claimant submits that this Court has jurisdiction to hear and determine this application as the matter does not involve determination of an appeal and thus falls within the ambit of Section 7 of the Supreme Court of Appeal Act. He adds that he first made the application in the Court below and has come to this Court after it was declined. Thus, in his view, the application falls within the ambit of Order 1 rule 18 of the Supreme Court of Appeal Rules.

Turning to the substantive matter herein, the Claimant has addressed this Court on the question viz. whether there are serious questions to be tried in this matter. The Claimant argues and submits that the 1st Respondent has purportedly exercised the rights of a Landlord over a tenant who defaults on rental payments by allegedly exercising the right of distress and possession by issuing a Warrant of Distress and Poss ession. However, the Applicant continued, t he Respondents have not provided any evidence of existence of a tenancy or lease relationship between the Applicant and (late Jessie Kazinga Mkandawire) or the 1 st Respondent herein. It is the further argument of the Claimant that the 1st Respondent has not offered evidence respecting when the Applicant became the tenant for his late wife or himself, the monthly rental payable overtime and if at all he or his wife ever received rentals from the Applicant. The Applicant further submitted that the 1st Respondent has not even stated how he calculated the rentals to arrive at the amount contained in the Warrant of Distress and Possession. It is the further contention of the Applicant that the real issue between the Ap plicant and the 1 st Respondent and his late wife has always been with respect to the ownership of the property and not any tenancy relationship. The Applicant claims that the 1 st Respondent’s arguments in Court largely focused on establishing his and/or her late wife’s ownership of the land and demonstrating that the Applicant is not the owner of this property but the evidence herein does not conclusively show that the property was owned by the 1st Respondent or his late wife. He further argued that in E.J. Massona v. Anna Nkhoma, Christopher Kasema, Jessie Kazinga Mkandawire and the New Building Society Civil Cause No. 1393 of 2001, in a Judgement delivered on 10th September, 2005 Ted Sparks Jumbe v. Charles Kasema _AG (Land Registrar and Sheriff of Malawi_Ruling_Injunctions in the SCA

the Court found that the sale and transfer of property Title Number 791 to Jessie Kazinga Mkandawire (The 1 st Respondent’s late wife) was fraudulently done and the sale and transfer documents were not executed by the Claimant, E.J. Massona. He further argued and submitted that although Ernesto Jackson Massona is disownin g the proceedings by alleging that he did not institute the proceedings, the Judgement and the findings therein are binding as the disowning of the case herein is not valid and honest.

The Applicant continued to argue that there has never been any tenancy relationship between the him and the 1st Respondent’s late wife, Jessie Kazinga Mkandawire but that the dispute between them has always been for the ownership of the property herein. In his view, there is thus a triable issue to be determined, namely, whether the Applicant was a tenant of Jessie Kazinga Mkandawire in respect of the property and if the answer is in the affirmative whether he defaulted in rental payment let alone to the sum specified in the Warrant of Distress and Possession.

On whether damages would be an adequate remedy, it is the submission of the Applicant that the continued possession and the sale of the property herein will lead to the Applicant completely losing it. He further argued that he is at present suffering great inconvenience and loss of use of the property and the same will become permanent once the property is sold. The Applicant continued to submit that the property will not be restored or reinstated as it would have gone to a third party who would be protected by the law. He continued to argue that on the other hand if the injunction is granted and consequently possession of the property is returned to the Applicant, and further it is not disposed of should the Applicant fail to succeed in t he action in the Court below, there will be no significant loss to the 1 st Respondent since he then will take possession of the property and deal with it as it pleases him. It is the view of the Applicant that on the facts he stands to lose more if the injunction is not granted than the 1 st Respondent would lose if it is granted. Thus, he concludes, scales of justice tilt in favour of granting the injunction herein.

The Applicant continued to argue and submit that the Court in deciding whether to grant an interim relief must address its mind to the question whether it is just to do so for the overall purpose of an injunction is to achieve justice. It is the view of the Claimant that in the present case the Warrant of Distress and Possession is irregular and illegal which assertion he claims the Defendants have Ted Sparks Jumbe v. Charles Kasema _AG (Land Registrar and Sheriff of Malawi_Ruling_Injunctions in the SCA

not challenged or disputed. He added that the Court below is yet to decide on the issue of ownership of property. The Claimant continued to submit that the assertions by the 1 st Respondent that the property was owned by her late wife and recent registration of him as proprietor can not stand as there are fraudulent activities involved. He claims that the fraud issues were left for the Court to decide by the Land Registrar where the Court granted a restriction notice to the property. It is the view of the Claimant that a t this stage therefore it cannot be said that the 1 st Respondent is the owner of the property although the 1st Respondent has issued an illegal Warrant of Di stress and Possession and wants to sell it when there are various cases between the parties in Court which have to determine the issue of ownership of the property.