Traditional leaders in Malawi win against property developer who hid information from court

22 February 2019 · Carmel Rickard

TRADITIONAL leaders in Malawi’s Chikwawa district have won a significant court victory over a developer. This after he asked for judicial help in throwing a local community off land where they have lived for many years – but failed to disclose key facts to the court. An initial injunction against the local community was granted earlier this year, but then it emerged that he hid important facts in his original application, brought without notice to the traditional community. When Judge Kenyatta Nyirenda discovered the full story, he commented on the “sheer effrontery” of the application, and threw it out.

Read the case Cane Products Limited v Traditional Authority Katunga & Ors (Land Cause No. 14 of 2018) [2018] MWHC 842 (03 September 2018);

FORMER cabinet minister and MP, Rolf Patel, through his company Cane Products Ltd, wanted to get rid of traditional leaders and their community living in the Chikwawa district. He told the high court that in 2007 the company had “by an agreement” with the Agricultural Development and Marketing Corporation (ADMARC) obtained about 230 acres of land known as “Mitole Estate”. The community was being a nuisance, however, refusing to leave and preventing development.

What he didn’t tell the court was that the company was put under liquidation after proceedings against it began as long ago as 2005. In 2012 the supreme court of appeal formally ordered it to be wound up, and liquidators were appointed. The company remains in liquidation and as a result it has no legal standing to bring any court action.

This crucial information on the liquidation status of Cane Products was first disclosed to the high court by the traditional leaders, and the company made no response once the judge discovered the background. After full argument on this issue, the judge struck out the case on the grounds that the Insolvency Act does not allow the director to litigate on behalf of a liquidated company.

But, said Judge Nyirenda, there was “another good reason” why the earlier injunction could not be sustained: Cane Products had brought its application without notice to the other parties. It was a well-established rule that when a party brought an ex-parte application to the court, “that is to say, in the absence of the person who will be affected by that which the court is asked to do”, that applicant was “under an obligation to the court to make the fullest possible disclose of all material facts.”

In this case, the applicant was “very mean” about the information he gave the court: in all the legal papers there is “no mention whatsoever” of the fact of the liquidation of the company. The claimant “chose to suppress these material facts” and the injunction had thus to be discharged, with costs.

The case disclosed a number of other significant facts and allegations though, given the court’s decision, these were ultimately not considered and decided by Judge Nyirenda.

Cane Products had originally brought the case against the “traditional authority, Katunga”, along with “village headman Julius” and “persons unknown”. The company wanted the court to order that the traditional leaders stop these “persons unknown” from cultivating the land or putting up any buildings in the land that it said belonged to the company.

But in their defence and counter claim, the community said that the disputed land originally belonged to “colonial settlers”, and that “when Kamuzu Banda returned to Malawi in 1958 to champion independence for Malawi”, he “evicted foreigners” from rural areas including the very estate now being claimed by Cane Products.

This estate was initially given to ADMARC, the government-owned corporation established in 1971 to increase local agricultural export markets. But as ADMARC used only very little of the land local people began to plant and live in the rest of the area. The traditional leaders then “reclaimed their ancestral land that had been usurped by the colonial settlers” and gave their people the right to use and enjoy the land.

Now more than 1 000 families live there and it is a significant trading centre.

In their court papers the traditional leaders made serious allegations against Cane Products and the way it had acted since allegedly “buying” the land.

They said that the company’s director intimidated the people saying they would be forcefully removed unless they each paid him a substantial sum of money.

They also claimed that Patel had dug a huge hole in the ground just outside what he said was his land. Then he used a bulldozer and, without any authority from the traditional leaders and without following “lawful procedures”, dug out the human remains in the local cemeteries within the area he claimed, and deposited all these remains into the hole.

For the “pain, suffering, mental anguish, shock and trauma” caused to the families of the area by these actions, the community counter-claimed by way of a damages action. They said they wanted compensation after people had to witness “the bones of their loved ones being dug up, carried off as some dropped and were shoved away from their resting places”. The mass grave, so created, was about 20 m by 20 m.

None of these issues was dealt with by the court, however, since the judge found that the case should be dismissed on the basis that the company was in liquidation.

This is not the first time Patel has been involved in controversy about land acquisition. During 2016 he featured in another court case involving a dispute over prime land in Blantyre allegedly improperly obtained.

Carmel Rickard

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