Defence wants Kadzamira estate case dismissed

The family of former politician Elias Kaphwiti Banda has filed an application for the courts to dismiss a lawsuit filed by Mama Cecelia Kadzamira over a farm located in Mchinji.

In their submissions, the family’s lawyers Kita and Company and Kalekeni Kaphale Lawyers argue that Kadzamira’s title deeds for Tichitenji Estate are invalid.

Kadzamira was former official hostess to the country’s founding president Hastings Kamuzu Banda.

In 2020, she sued Traditional Authority (T/A) Kawere, Kaphwiti Banda’s wife Falesi and her son Gabon, alleging that they trespassed on her land after the family camped at the farm in a bid to repossess it.

The Attorney General was also added to the lawsuit as a third party.

The Kaphwiti family’s move to camp at the farm came after family members failed to persuade the 86 year-old plaintiff to resolve the dispute through dialogue, according to court records in the Civil Case Number 373 of 2020. 

In the application for dismissal, the Kaphwiti family lawyers further argue that Kadzamira is the trespasser since she is basing her ownership claim on a ‘defective title deed’.

The application also refers to a July 25 2024   hearing where lawyer Wapona Kita cross-examined Kadzamira.

It reads in part: “The court heard the evidence of the claimant and by the end of the day, the claimant closed her case.

“The defendants [the Kaphwitis, T/A Kawere] then moved the court that the defendants would make submissions of no case to answer.

“As the subsequent case law will show, the defendant’s submissions are sufficient for this honourable court to render a judgement of no case to answer at the close of the claimant’s case.”

The application also says the court should not wait for the defendants to testify as Kadzamira failed to support her claim.

Court documents show that Kaphwiti Banda secured ownership of the land in 1968 at Kadzamira Village, T/A Kawere in Mchinji. 

However, after fleeing into exile following a fallout with the one-party regime, former president Kamuzu Banda took over the farm.

In her affidavit, Kadzamira said Kamuzu Banda later gave it to her as a gift.

However, the lawyers discredited both Kamuzu and Kadzamira title deeds as null and void.

Further reads the application for dismissal: “The registration stamp shows that the Minister Responsible for Land Matters transferred it to Kamuzu November 8 1972.

“The crucial question for this honourable court is whether or not the minister had the ownership rights to transfer the title deed for Tichitenje Farm to Kamuzu.

“The answer is in the negative. This is so because, by that date, the minister had already transferred the same land to Kaphwiti Banda and registered in the Deeds Registry on December 18 1968.”

The lawyers argue that even “if the court were to momentarily accept” that Kamuzu’s title deed was valid, the farm would still belong to the Kaphwitis.

“According to the law, when there are two title deeds for the same property, the principle is that the earlier in time takes precedence,” the application reads, referring to Section 8 of the Deeds Registration Act.

Reads the section: “All charges upon land or any interest in land whether by way of mortgage or otherwise and whether equitable or otherwise and all transfers, assignments or leases of land shall take priority according to the date of registration.”

The invalidity, the lawyers further argue, stems from Kadzamira’s failure to register the deed within three months after obtaining it.

Records show that her title deed was executed in 1982, but she registered it seven years later in 1989.

Section 7(1)(a) of the Act reads in part: “Where such deed or document is executed after the commencement of this Act, the same shall be presented for registration within three months from the date of its execution if executed.”

The lawyers, therefore, point out: “The defendants have asked the court for a declaration that they are the rightful owners of the land.

“The claimant has not opposed this declaration. We, therefore, pray that it be granted accordingly.”

But during cross-examination, Kadzamira, a prominent figure in the then Malawi Congress Party regime, dismissed assertions that she was powerful and used her influence to grab the estate.

She claimed there were 50 other applicants, seeking to own the farm sitting on 583 771 acres.

When Kita asked if it was procedural for former president Kamuzu Banda to grab the land, Kadzamira responded: “You are confusing me.”

Following the application for the case dismissal, the High Court Judge Simeon Mdeza will consider it and summon the two sides for delivery of judgement.