Attorney General (AG) Thabo Nyirenda has applied to the High Court to set aside the default judgement issued in favour of Sealand Investments Limited and N3 Construction Limited in a case involving 98 hectares of land in Malawi’s capital, Lilongwe.
The two firms belong to Dipak Jevant, currently based in Dubai, the United Arab Emirates, and were granted leasehold interests over land Title Number Lumbadzi 55/360 and Title Number Lumbadzi 55/361 in the city of Lilongwe measuring 53.216 hectares and 35.070 hectares, respectively, on August 1 2010.
According to submissions made by Nyirenda and acting Commissioner of Lands and Urban Development Kwame Kafwimbi Ngwira, both Sealand Investment and N3 Construction proposed to utilise the land for the construction of a warehouse, servant quarters and brick wall fence and that they were supposed to complete developing their land within two years from August 1 2010, in terms of Clause 2(b) and (c) of the lease.
However, the firms failed to develop the land within the two-year period stipulated in their respective leases, a development Nyirenda says is in breach of development covenants.
Following the alleged breach of the covenant, the two firms were served with notices of re-entry on November 19 2014, requiring them to remedy the breach within a period of three calendar months.
At that time, according to the submissions, Sealand indicated that the delays had been due to a mixture of reasons including planning approval delays orchestrated by Lilongwe City Council (LCC), financial hitches from partners considering the magnitude of the project, further indicating that some people had planted crops on the land and that the firm was waiting for the people to harvest the crops.
He further argues that despite being served with the notices of re-entry on November 1 2016, both firms failed to develop the land within the period stipulated in the notices of re-entry.
Instead, on November 14 2018, both firms applied for change of use of land from industrial to mixed-use which was approved by both Ministry of Lands and LCC officials.
On April 19 2021, the Minister of Land issued final notices of re-entry in respect of leasehold land.
On August 25 2021, the firms were granted permission for judicial review of the decision of the Ministry of Land to exercise the right of re-entry and forfeit the leases set out on the land in question.
The court also granted the firms an interlocutory injunction restraining the ministry from cancelling the leases or selling the land to other people on the condition that they should file an inter-partes application within 14 days.
On January 12 this year, the court heard the firms in the absence of the Ministry of Lands officials or representatives and proceeded to give judgement in the absence of the defendant.
However, in his submissions to High Court Judge Simeon Mdeza, Nyirenda notes that the notice of motion for judicial review hearing, which is said to have been served on the Principal Secretary (PS) for Lands, Housing and Urban Development, has a date stamp and signature and that the signature appearing beside the date stamp is not that of the PS for Lands, Housing and Urban Development.
He further says the final notices of re-entry were issued on April 19 2021, but that the application for permission for judicial review was filed on August 24 2021, which is more than four months from the date the decision was made to the date the application was lodged with the court.
“The defendant now applies for an order setting aside the judgement made in the absence of the defendant, the permission for judicial review and the interlocutory injunction on the ground that: The defendant was not served with any document relating to the claimants’ applications, hence failed to challenge the claimants’ applications and failed to attend the hearing of the judicial review application.
“The claimants’ application for permission for judicial review was filed out of time and the claimants failed to apply for extension of time within which to file the application for permission for judicial review. The matter herein is not fit for judicial review as it pertains to private law matters; The claimants suppressed material matters of law and facts; the claimant’s application raises no triable issue,” Nyirenda argues.