The High Court in northern city of Mzuzu has ordered the Mzuzu City Council to hand back a house it sold illegally after the owner failed to pay city rates, saying after March 2005 the Council was not lawfully constituted, as a local government authority hence could not exercise any powers conferred by law.
The Council contravened section 147 (1) (2) (3) of the constitution, section 5, 10 and 11 of the Local Government Act, according to the High Court.
“Having failed to hold local government elections we should not under the guise of avoiding absurdity allow persons not elected by our citizenry to act as if they were. The right to elect governors should not lightly be taken away from our people,” Judge Lovemore Chikopa said in a landmark ruling.
In 2006, the same Court also ordered the Council to return Kaka Motel in Mzuzu to its owners after Council again sold it for nonpayment of city rates. That time again the court noted that the Council was not a legal authority.
Under Civil, cause number 61 of 2007, the widow Maria Salame Banda as second Plaintiff and Green Nyirongo dragged the Council and Henry Yotamu Munthali to Court asking for an order of injunction and a declaration that the Council wrongfully acquired and sold their property.
The duo also demanded an order that the sum MK220, 076 be repaid at the ruling bank rate, general damages and rentals on the property from November 1st 2007 and costs of the action.
Banda’s late husband John Trension Banda bought the house in 2002 on plot number MZ/646/0 courtesy of the Civil Service Home Ownership Scheme. He died on December 7, 2002 but the Scheme fully paid for the property by March 23, 2005.
Maria Salame Banda, in her capacity as administrator of the estate sold the property to Green Nyirongo who occupied it until June 2007 when Sheriffs on the Mzuzu Council’s instruction evicted him.
Citing section 91 of the Local Government Act, the Council sold the house to Henry Yotamu Munthali for MK220, 076.
However, in his 15-page judgment, Judge Chikopa noted that a duly constituted assembly complies with section 147 of the constitution as read with section 5 of the Local Government Act.
“It must have Ward Councilors duly elected in an election organized, conducted and supervised by the Malawi Electoral Commission in accordance with Local Government Elections Act number 24 of 1996.
“If a local government authority does not have Councilors it is not a duly constituted… consequently it has no business doing what duly constituted local government authorities by law do,” he said.
The Judge further reiterated that an unconstituted local government authority should not and cannot among other things lawfully sale ratepayers’ property for failure to pay rates.
“On the facts it is not in dispute that the Council has been operating without a Mayor and/or Ward Councilors since 2005. Was the Council a lawfully constituted local government authority? The answer can only be in the negative.
“Could it have at any time after March 2005 exercised any powers vested in a lawfully constituted local government authority including levying and collecting city rates and selling rate payers’ property for nonpayment of city rates? Again in the negative,” Chikopa said.
The Judge then granted an order of injunction, saying that Henry Yotamu Munthali had no lawful title and possession of the property.
“It is clear that the Council had no capacity to sale. It could not therefore have lawfully sold the property. Any purported sale between them was clearly wrongful. A declaration to that effect is granted,” Chikopa said.
He also then ordered the Council to repay Nyirongo his money and compensate him for his loss of its use and loss in value.
“He will be paid the money with interest at the current bank lending rate. The District Registrar will calculate the actual amount payable within 45 days from this date,” Chikopa said.
He also ordered the Council to pay rentals on the property from November 1, 2007 to judgement day.
“The rental will be assessed by a registered Land Economic/Valuer to be appointed by the District Registrar within 45 days. The Council will meet the cost of engaging the Land Economic/Valuer,” Chikopa said.
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