Environmental Case Law Index

This was an appeal to the High Court against the decision of a magistrate to dismiss the appellant’s claim which concerned a dispute over a customary piece of land. While the appellant stated that the part of the land in dispute was his, the respondent maintained otherwise. 

The issue for determination was whether the land belonged to the respondent or the appellant. The court held that in civil cases, the evidence was on a balance of probability. As such, the respondent’s evidence that he was the one given the land by the chief carried more weight and was therefore convincing. The court further held that customary lands were owned communally, which meant that the chief did not own the land as his belonging. Therefore, the court stated that the chief did not have the power to deprive one person of land and give it to another. In conclusion, the court upheld the decision of the court below and accordingly dismissed the appeal.

The court considered an application for the continuation of an order of injunction to restrain the defendants from trespassing or encroaching on the plaintiff’s land, pending the determination of the plaintiff’s claim. The plaintiff alleged that she purchased customary land from the daughter of its previous owner. The plaintiff enjoyed possession of the land, until the defendants alleged that the land was their grandfather’s and the seller had no authority to sell it. Although, the plaintiff argued that she had ownership of the land, the defendants argued that customary land could not be sold or bought, thus she had no right to protect. 

The court considered the temporary injunction and whether the plaintiff had disclosed a triable claim. It  found that where the applicant had disclosed a good claim to the right, the court would then consider whether damages was an adequate remedy. The court found that the plaintiff’s use of the word bought was incorrect, stating that she parted with money in exchange to acquire the right to use and occupy the land, she however, had a triable right to protect. The court held that the remedy of damages was not adequate as the land was unique. 

In conclusion, the court found that the balance of convenience favoured the status quo in protecting the land, used and occupied by the plaintiff until the outcome of the trial and upheld the application

This was an appeal against the decision of a magistrate to order the appellant to vacate a disputed piece of customary land. The appellant applied for a stay of execution of judgment pending appeal.

The two issues for the court’s determination were, whether the appellant was duly allocated the piece of land according to customary law, and whether he had the right of usage and occupation. The court applied the burden and standard of proof based on a balance of probabilities, and ss 2, 25 and 26 of the Land Act which regarding title and ownership of customary land.

The court found out that the respondent had left the land unattended for a period of 13 years and, although this did not remove his right of usage and occupation, the status quo could not be maintained. The court observed that, the land was lying idle when it was allocated by the Group village Headman to the appellant who in turn redeveloped it by building a house, a grocery store and planted trees and fruits. The court held that the respondent sat on his rights and allowed the appellant to develop the land. The court also found that respondent’s conduct had been unreasonable during the time that the appellant developed the land.

In conclusion, the judge held that the appellant was duly allocated the piece of customary land according to law and that he then had permanent rights of usage and occupation. Accordingly, the appeal succeeded with costs.

This was a claim for negligence and damages caused to the plaintiffs’ houses by road construction works that were carried out by the first defendant with the authority of the second defendant. The second defendant argued that the action was statute barred and that it could not be held liable for the first defendant’s negligence since they were independent contractors.

The court noted that the plaintiffs accepted that the action against the second defendant was statute barred but argued that the second defendant waived its right to a remedy under the act. The court held that the joinder of the second defendant to the proceedings was improper. It was further held that the waiver which was not pleaded lacked merit.

Secondly, the court determined whether the first defendant was negligent. The court noted that an action of negligence required the plaintiffs to prove that there was a duty of care owed to them, a breach of the duty and damages suffered thereof. The court held that the first defendant owed the plaintiffs a duty of care not to subject their houses to a risk of damage. However, the court found that the plaintiffs failed to prove a breach of the duty, since there was no evidence that the construction was done without risk assessment and the plaintiffs had been compensated for the damages.

The issue of the second defendant’s liability was found to be redundant, since the action was already dismissed on the basis of the first and second issues.

The matter dealt with an application for an order of interlocutory injunction restraining the defendant from entering, cultivating and burning bricks on the claimant's farm lands pending the hearing and determination of this matter or until a further order of the court.

The court considered whether it should grant an order of interlocutory injunction or dismiss the application. An interlocutory injunction is a temporary and exceptional remedy which is available before the rights of the parties have been finally determined. 

When considering an application for injunctions, the following principles apply:
1) as long as there is a serious question to be tried, a prima facie case does not have to be shown;
2) whether the plaintiff would be adequately compensated by damages for the loss if they succeed;
3) whether the defendant would be adequately compensated if the plaintiff fails;
4) consider all matters relevant to the balance of convenience;
5) consider the relative strength of each party’s case. 

In this case, according to the claimants' own evidence, each of them received a court order to the effect that the judgement of the First Grade Magistrate Court sitting at Mulanje extended to the claimants. Therefore, the court order had to continue to apply until, if at all, a contrary decision was made in the substantive action. 

Application for interlocutory injunction dismissed.

This was an application by the plaintiff claiming compensation for the land which was compulsorily acquired by the defendant. The plaintiff made a further claim for compensation for the destruction of 390 banana plants. The court had to decide on the quantum of damages payable for the loss of use and occupation of land and the loss of the 390 banana plants. 

 The court first dealt with the general principles guiding compensation and considered the applicable legal provisions. The court held that the main principle underpinning damages was restitution. In addition, the court listed several grounds under which compensation can be calculated. These grounds included a calculation of compensation based on the market value of the land; compensation based on the depreciation of value, if only a part of the land was expropriated; disturbance compensation among other guiding principles. 

In awarding judgment for the plaintiff, the court considered the nature of the deprivation and concluded that such deprivation was permanent. The plaintiff was awarded MK3, 812, 000.00 as compensation and  the respondent was  ordered to pay the costs. 

This was an appeal against a decision of a magistrate to dismiss the appellant’s claim over a piece of customary land which he claimed was unlawfully in the possession of the second respondent, his son. The appellant had left the village for a long time and upon returning found that the first respondent had constructed a home on his land. The appellant instructed the first respondent to vacate land but he refused and proceeded to sell the land to the second respondent. The appellant told the court below that he inherited the piece of land from his father. The lower court found that the appellant had failed to adduce enough evidence to show that the land belonged to him.

The court had to determine the following: which party had the right of occupation of the land; whether the land was lawfully transferred to the second respondent and whether a permanent injunction could be granted restraining the appellant or the respondents from interfering with the land in question.

The court held that although the land had been given to the first respondent customarily, chiefs must be guided by the law specifically, the Constitution and it was against the law to deprive any person the right to use and occupy customary land without any justification at law. It held that indefinite individual usage and occupation of customary land was therefore permissible under the laws of Malawi and the subsequent transfer was legal. Accordingly, the court upheld the lower court ruling.

This was an appeal against the validity of an order to the Land Valuation Board to assess the compensation payable in respect of buildings and farms belonging to inhabitants of an old village.

The facts of this case were that the appellant, a mining company, requested the respondents and other inhabitants of a village, which adjoined its mining area, to vacate the village and paid them compensation for their buildings, which were later demolished. Section 71 of the Minerals and Mining Act, 1986, provided for compensation for disturbances to owners and occupiers of lands affected by mineral operations. The appellant argued that this compensation was limited to areas within the mineral operations and that these areas were not land designated within its mining lease.

The Supreme Court considered the lawfulness of the board’s decision to award further compensation under s71 of the act. It found that since the mining operations of the appellant affected the owners or occupiers of land they were entitled to statutory compensation. The court stated that whereas compensation for the buildings of the respondents was settled by agreement with the appellants, as permitted under s71(3) of the act, compensation for the disturbance of their farming activities at the old village was mandatory under the act.

The court, however, stated that the lower courts came to the right conclusion but their reasons were not sound in law. Accordingly, the appeal was dismissed but the reasons were substituted for the Supreme Court’s decision.

The matter concerned the importation of fish, whereby letters of credit were opened at the appellant bank, by the 1st defendant on behalf of the respondent for the importation, which the respondent had sought to cancel.

The court considered the relationships between the parties and found that the opening of the letters of credit created a relationship between the bank, and the respondent, and also imposed on the appellant an obligation to ensure the rights of the respondent were protected. The court found that the appellant failed to do so and resultantly could not escape liability. 

The court held that where a duty exists, it must be faithfully observed, since breach thereof would result in damages. The duty owed to the respondent was established with the opening of the letters of credit. This created an obligation on the part of the appellant to keep to the clear terms, under which the letters of credit were to operate. Accordingly, the court found that it was the appellant’s duty to ensure that the terms thereunder were kept. 

The court held that where, in a commercial transaction or a contractual relationship, a party signs a disclaimer, then that party by virtue of the disclaimer avoids liability for breach. The court found that the appellant bank, by implication, withdrew their earlier instructions, through their acceptance of the explanations given by the correspondent bank ,and that fact amounted in effect, to not giving any instructions at all. 

The court considered an  appeal against the decision of the High Court, in which the trial judge accepted the appellant’s case that the conduct of the respondent in ordering the seizure of her fish, and subsequently dealing with it in a manner inconsistent with the rights of the owner, was unlawful and consequently made an award in her favour for damages, but directed that the appellant pays the appropriate custom duties on the fish. 

The issues facing the trial court was whether or not the seizure was lawful, whether the quantum of damages awarded in favour of the appellant was correct and whether the trial court was right to order that the respondent-cross-appellant pay custom duties. 

The court held that the appellant suffered damages equivalent not to the cost price but fair market value of the fish. Therefore, it was just for the said amount to attract interest at the prevailing exchange rate from the date of the wrong. Since the fish were wrongfully dealt with by the respondent, there was no merit in the cross appeal.

Finally, the court dismissed the appeal of the appellant as well as the cross appeal of the respondent and affirmed the decision of the court below, however, ordered a variation, in relation to the award of damages and the payment of interest on the custom duties by the respondent.

The court considered an appeal against an injunction to restrain the appellants from going onto the disputed land to demarcate, dig, construct etc. any tree on the land until the action had been finally determined. The court considered, 1) the weight of evidence and 2) the capacity of the respondent. 

The respondent obtained a customary grant of land 22 years before the action. Later, he obtained a formal lease and was reallocated additional acres of land, which was used to cultivate cash and food crops. Due to development in the area, the respondent’s land was whittled away. The respondent alleged that the appellants trespassed on his land and undertook various activities such as alienation of portions of his land, in the premise.

On the ground of capacity, it was found that once a party’s capacity had been challenged, it should be determined as a preliminary point and the suit can only be heard after this is determined. The court held that the appellants did not raise capacity as a preliminary issue and as such, the manner in which it was raised was a ploy to confuse the trial judge. 

On ground of the weight of evidence, the court found that if the injunction had not been granted, the respondents land would have been pillaged and its nature entirely changed. Thus, an injunction was necessary to ensure that irreparable damage was not caused. 

The court found that the trial judge exercised his discretion properly and thus the appeal was dismissed and remitted to the trial court for continuation.   

The matter arose from a power purchase agreement entered into by the Government of Ghana and the first defendant for the rehabilitation of a power barge.

The court considered whether the agreement constituted an international business transaction, within the meaning of Article 181(5) of the Constitution. 

The court held that a business transaction is “international” within the context of article 181(5) where the nature of the business which is the subject-matter of the transaction is international, in the sense of having a significant foreign element, or the parties to the transaction (other than the Government) have a foreign nationality or reside in different countries or, in the case of companies, the place of their central management and control is outside Ghana. Accordingly, the court held that the agreement constituted an international business transaction within the meaning of Article 181(5) of the Constitution.

The court considered whether or not the arbitration provisions of the agreement constituted an international business transaction within the meaning of article 181(5) of the Constitution. An international commercial arbitration is not by itself an autonomous transaction commercial in nature which pertains to or impacts on the wealth and resources of the country and is, therefore, difficult to conceive of as a transaction independent from the transaction that generated the dispute it is required to resolve. 

Accordingly, the court found that the arbitration provisions did not constitute an international business transaction within the meaning of article 181(5) of the Constitution.

The case was remitted to the High Court to apply this court’s interpretation of article 181(5) in the proceedings before it.