The owners of a piece of land in Mulanje which was taken away from them by the Chitakale Plantations Limited , Mary Woodworth and Lisineti Gremu have asked the Constitutional Court to commence judicial review on how government leased the land to David Kanyoza a business partner of Leston Mulli who owns Chitakale.
Mulli, who was one of Malawi’s most influential businessmen during the Mutharika regime, gained ownership of the Chitakale tea estate in 2008, and soon after had employees occupying the adjacent 6.8 hectares of the land that was used to grow crops to provide food for Woodworth’s orphanage Friends of Mulanje Orphans (FOMO).
In November 2009, the High Court in Blantyre evicted Chitakale Plantations from a piece of land the company claimed to own. The court ordered it to pull down structures it put up on the disputed land and compensate the bona fide owners, Woodworth and Gremu, for damaged crops.The decision was also upheld by the Supreme Court of Appeal in June 2010.
Government through the then Minister of Lands John Bande, acquired the land through a general notice number 59 which was published in the government gazette dated October 14, 2010.
Kanyoza applied to the Minister of Lands for the same land in February 2011 and was only granted a 99 year leasehold of the land on October 7, 2011 although the lease commenced on August 1, 2011.
Now the two women have applied for administrative judicial review which has graduated into constitutional judicial review on how the minister exercised his powers in grabbing the land and execution of the title deed to Kanyoza.
Twist and turns
However, there were twist and turns on the proceedings when the case resumed on Friday after Woodworth and Gremu through their lawyers comprised of Felix Tandwe and Patrick Mpaka asked the court to dismiss the order to allow Kanyoza join the constitutional review proceedings as interested party.
The High Court judge, Justice Anaclet Chipeta had earlier on granted an order for Kanyoza to join the constitutional judicial review as party.
Woodworth and Gremu have objected to the order, arguing the case is concerning the decision made by Minister of Lands and Commissioner of Lands in granting the lease, and therefore there was no need for Kanyoza to join it.
They further argued that Kanyoza did not follow court rules and procedures in obtaining the order to be part of the case, adding his position in the case is not declared raising questions on his intentions for joining the proceedings.
“The order to be part of the proceedings is/was contrary to Constitutional Court rules, and it was granted to private individual not public utility which is also contrary to rules of Supreme Court of Appeal. Mr. Kanyoza needs not to be allowed to be part of the proceedings through backdoor, there rules that need to be followed,, which in this he did not,” said Tandwe.
Lawyer Mpaka said the issue was on the manner how the ministry granted the lease; therefore the matter is not technical but on substantial Constitutional Court rules.
“It’s not clear on Mr. Kanyoza’s interest in the case. The case is if Minister of Lands followed statuary guidelines in giving out the lease. We are not here to fight about the ownership of the land but if the said Minister complied with constitutional framework. Mr. Kanyoza’s interest in this case is questionable and we object to the order to be part of the proceedings. We are asking the court to remove him from these proceedings and make him bear all cost incurred this far,” Mpaka said.
But Kanyoza’s lawyer, Chancy Gondwe , said his client is an interested party in the case being the land’s title deeds holder and refusing him to be part of the case will be denying him his constitutional right to seek justice.
Gondwe said the court’s declaration on the matter will likely affect his clients, hence the need to allow him be part of the proceedings to avoid duplication of cases.
“My client can join the case as interested party being the title deed holder. If there was any irregularity in obtaining the order, the Courts Act can cure that as it has been the case in the past. My client has a right to be heard in this case because any declaration the court will make is going to affect him in the end,” Gondwe told the court.
Gondwe said by removing Kanyoza from the proceedings, will mean denying justice to an interested party.
“The court can’t not proceed making its declaration when the interested party, in this case the title deed holder, is not given a chance to be heard. The court should not shut the doors of justice on the interested party,” added Gondwe.
The court has since adjourned the case to January 8, 2013 when it will make its ruling on whether to keep Kanyoza in the proceedings or to remove him.Follow and Subscribe Nyasa TV :