LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO 30/2022
LC/APN/23/2014
In the matter between:
MOEKETSI MONAHENG APPELLANT
AND
RICHARD MAHLOMOLA RESPONDENT
CORAM: MOSITO, P
SAKOANE, CJ
MUSONDA, AJA
HEARD: 17 OCTOBER 2024
DELIVERED: 1 NOVEMBER 2024
SUMMARY
Land Law – Registered Lease versus Unregistered Sale Agreement: In land disputes, a registered lease issued by the Land Administration Authority (LAA) under the Land Act, 2010, takes precedence over an unregistered sale agreement. Unregistered agreements, even if accompanied by possession claims, are legally ineffective in conferring title or rights to land under sections 24 and 25 of the Land Act.
Burden of Proof – Allocation of Land: The onus lies with the party claiming rights to land through an unregistered sale agreement to prove their legal entitlement. A registered leaseholder is not required to prove inheritance or further justify their title unless fraud or illegality is alleged in the lease issuance.
Cancellation of Lease: A lease granted by the LAA may only be cancelled under section 44 of the Land Act if it was unlawfully obtained or issued fraudulently. The court must have clear evidence of such illegality before ordering the cancellation of a valid lease.
Possession and Occupation: Continuous land occupation without formal registration does not confer legal rights under the Land Act, 2010. Legal title to urban land in Lesotho is obtained through formal leasing and registration processes governed by the LAA, and informal possession or occupation is insufficient.
Court’s Role in Lease Cancellation: The Court’s role in reviewing the cancellation of a lease focuses on whether the lease was lawfully issued. Without evidence showing fraud or unlawful issuance, the court should not cancel a registered lease or order the leaseholder’s ejection from the land.
In this case, the Court of Appeal upheld the appellant’s registered lease and set aside the lower court's decision, which improperly relied on an unregistered sale agreement to cancel the appellant’s lease and eject him from the land.
JUDGMENT
MOSITO P
Background
[1] This appeal arises from a dispute over the ownership and possession of a parcel of land, with Mr Moeketsi Monaheng, the appellant, and Mr Richard Mahlomola, the respondent, advancing rival claims. The court below ruled in favour of the respondent, prompting the appellant to challenge that decision. Central to this appeal are issues concerning the respondent’s status as a bona fide possessor and whether the appellant can establish a legitimate claim based on his purported inheritance of rights in the land.
[2] The appellant has approached this Court on several grounds of appeal. Firstly, he contends that the learned judge erred in granting judgment in favour of the respondent, as the evidence before the court a quo demonstrated that the appellant’s mother, and subsequently the appellant himself, had been in continuous occupation of the disputed land rather than the respondent.
[3] Secondly, the appellant argues that the learned judge misdirected herself by holding that the appellant had failed to challenge the existence or authenticity of the agreement of sale by which the respondent claimed to have been placed in possession of the land. This, he asserts, is factually incorrect for two key reasons: (a) the respondent was never placed in occupation of the site, as evidenced by the testimony before the court, and (b) the appellant had challenged the validity of the said agreement during cross-examination and called upon the court to dismiss the document.
[4] Thirdly, the appellant contends that the judge erred in accepting that the Chief of Phomolong Ha Tikoe had allocated the land to the respondent in 2004. The letter referred to by the court did not specify which plot it pertained to, particularly as the respondent himself had admitted to acquiring a different site in the same area in 2004. The appellant submits that it was erroneous to conclude that this letter related to the disputed land without clear proof.
[5] Furthermore, the learned judge misdirected herself in finding that when the appellant applied to the Land Administration Authority (LAA) for a lease, he was aware of the respondent’s claim to the land and the ongoing litigation. The appellant challenges this finding on two grounds: (a) the respondent testified that when he approached the chief for intervention, the chief declined because they were awaiting lease issuance. This undermines the conclusion that the appellant was aware of the respondent’s claim at the time of his lease application. Additionally, the respondent participated in the registration process for leases in the area, registering his own lease without objecting to the appellant’s registration, as required by law; (b) the respondent’s claim was only filed in the District Land Court in 2014, a year after the appellant had already been granted his lease in 2013. It was thus incorrect to assert that the appellant applied for his lease with knowledge of the respondent’s legal proceedings.
[6] Fifthly, the appellant argues that the learned judge erred in granting judgment in favour of the respondent based on unproven facts, treating them as a common cause. The court, he asserts, disregarded the appellant’s unchallenged evidence in favour of the respondent’s unsupported claims.
[7] Sixthly, the appellant submits that the judge erred in addressing issues that were not before the court for determination. Specifically, the judge criticised the appellant for failing to produce family documents proving that he had been appointed heir following his mother’s death. However, this was not a matter raised by the respondent, nor was it central to the dispute.
[8] Seventhly, the appellant challenges the order cancelling his lease and ejecting him from the land, on the following legal grounds: (a) The court below granted relief to the respondent based on an unregistered deed of sale with the original landowner. The appellant argues that the respondent never proved that the sale agreement was registered in accordance with the law or that the relevant authority lawfully allocated him the land. The respondent conceded under cross-examination that he was never the registered titleholder of the disputed site. (b) The learned judge wrongly shifted the burden of proof to the appellant, holding that he failed to establish his inheritance of the land from his mother and prove lawful allocation despite being the registered titleholder under a valid lease.
[9] The onus, the appellant argues, lay with the respondent to prove his lawful allocation and to challenge the legality of the appellant’s lease. (c) The court’s finding that the unregistered deed of sale superseded the appellant’s lawfully registered lease was erroneous. The respondent produced an unsigned and unendorsed sale agreement, which bore no official sanction from the area chief or the land-allocating authority. By contrast, the appellant held a registered lease, the legality of which the respondent did not contest, nor did he allege any fraud in its registration. (d) The court failed to provide legal justification for ordering the cancellation of the appellant’s lease and his eviction from the site. There was no evidence of fraud or unlawful registration before the court to warrant such orders. Nonetheless, the court cancelled the appellant’s lease and ordered his removal from the land.
The Facts
[10] The disputed plot is located at Ha Tsolo, within the urban area of Maseru. Originally, Mrs Makapotene Kori owned the land. In her later years, she subdivided it into three parcels, selling the rights to two of these parcels to separate parties while retaining the third parcel, which lay between the two she had sold. It is this unoccupied third parcel that became the subject of the dispute.
[11] According to the appellant, Mrs Kori had sold this unoccupied parcel to the appellant’s mother, who had acquired rights to it alongside the appellant's adjoining plot. The appellant’s mother took possession of this land bordered by a hedge marking the boundary. Upon her death, the appellant succeeded her as the occupier of the site.
[12] The respondent, however, contends that this third parcel had been sold to him under an agreement with Mrs Kori, who had promised that the land would eventually be registered in his name. Despite this promise, the registration never occurred. A sale deed existed between Mrs Kori and the respondent, who subsequently initiated proceedings in the District Land Court to claim the land.
[13] Only after the respondent had instituted these proceedings did he discover the appellant had already been issued a lease over the disputed parcel by the Land Administration Authority (LAA). In response, the respondent withdrew his case from the District Land Court and commenced proceedings in the Land Court. The case concluded, and the Land Court ruled in favour of the respondent. The court's decision was based on the fact that although the appellant had been issued a lease by the LAA, this lease was granted some twelve months after the Chief of Phomolong Ha Tikoe had issued a letter affirming the respondent’s lawful possession of the land.
[14] The learned judge observed that the appellant had approached the LAA for the lease while fully aware of the respondent’s competing claim to the land and ongoing litigation. Furthermore, the appellant had fenced off the plot before securing the lease. The court noted that despite knowing the respondent possessed a deed of sale for the land from Mrs Kori, the appellant pursued the lease.
[15] The court a quo determined that the appellant’s conduct toward the respondent and those mediating the dispute lacked good faith. In applying for the lease, the appellant disregarded that the land had been allocated to two individuals. The court found that the lease, dated 11 December 2013, was applied long after the respondent and Mrs Kori finalised their sale agreement on 5 October 2004. The learned judge concluded that the respondent was the first to be sold the land by Mrs Kori and that the appellant could not have been issued the lease without the necessary allocation documents. Ultimately, the court ruled in favour of the respondent.
Issues for determination
[16] The following issues arise for determination in this appeal. Firstly, the Court must determine whether the appellant’s registered lease, duly issued by the Land Administration Authority (LAA), holds superior legal weight compared to the respondent’s unregistered sale agreement. Resolving this issue directly impacts the ownership and possession of the disputed land.
[17] Secondly, the Court must consider whether the respondent’s claim to lawful possession of the land, premised on an unregistered sale agreement, was sufficient to displace the appellant’s formal lease under the Land Act, 2010. The validity and legal effect of the unregistered sale agreement, compared to the appellant’s registered lease, require scrutiny.
[18] Thirdly, the Court is called upon to assess whether the court a quo erred in cancelling the appellant’s lease and ordering his ejection from the land, particularly in light of the absence of evidence showing that the lease was unlawfully or fraudulently obtained. The legality of the lease and the basis for its cancellation must be closely examined.
[19] Fourthly, whether the court a quo wrongly shifted the burden of proof onto the appellant by requiring him to establish his inheritance of the land, rather than placing the onus on the respondent to prove his legal entitlement. This issue touches on the proper allocation of evidentiary burdens in the case.
[20] Finally, whether the appellant acted in bad faith by applying for a lease despite being aware of the respondent’s competing claim and the ongoing litigation. The Court must evaluate the appellant’s conduct in securing the lease and whether it was inconsistent with principles of good faith. These are the issues that will guide the determination of this appeal.
The law
[21] The Land Act 2010 and the accompanying Land Regulations 2011 form the legal cornerstone for regulating, allocating, and transferring land rights and interests in Lesotho. The Land Act 2010 governs the allocation of land rights under a system where all land is held in trust by the King for the Basotho nation, as enshrined in section 6 of the Act. While individuals and legal entities cannot own land outright, the Act allows them to acquire rights to use and occupy land through leases and other formal mechanisms.
[22] Under the Land Act 2010, statutory bodies specifically govern urban areas. Sections 5 and 6 of the Act detail that urban land committees and the LAA will manage land allocation in urban areas. These bodies are responsible for land allocation, registration, and lease issuance in urban centres. The Act defines urban areas as those designated by statutory instruments, encompassing cities, towns, and declared urban districts.
Section 10 explicitly states that chiefs no longer have the power to allocate land in urban areas.
[23] Section 19 further reinforces the formalisation of land allocation, stating that all transactions and allocations in urban areas must comply with statutory provisions, including the requirement for land to be leased and registered with the LAA. In light of the Land Act 2010 and the accompanying Land Regulations 2011, chiefs do not have the power to allocate land in urban areas in Lesotho. Their role has been supplanted by statutory bodies such as the LAA and urban land committees, which are tasked with ensuring transparent, efficient, and formalised land allocation processes in cities and towns.
[24] Part V of the Land Act governs the formal process for transferring land rights, specifically sections 24 to 27. Section 24(1) explicitly states that no land rights may be transferred by sale, gift, or inheritance without prior approval from the Commissioner of Lands. This section is central to ensuring that land rights transfers are valid and properly regulated by the relevant authorities. Furthermore, section 25 mandates that all land rights transfers must be formally registered with the Deeds Registry to be legally binding, ensuring transparency and the protection of both the transferor and transferee.
[25] The Land Regulations 2011 complement the Land Act by providing procedural guidance on transferring land rights and interests. Regulation 12 details the formal process for applying to transfer land rights, requiring applicants to submit documentation, including proof of ownership and an agreement between the parties involved. The Commissioner of Lands must review and approve all applications, ensuring that the transfer complies with the provisions of the Land Act.
[26] The requirements for applying for a lease are laid out primarily in Part IV of the Land Act 2010 and Part III of the Land Regulations 2011. Section 33(1) of the Land Act 2010 requires an individual or corporate body seeking to lease land to submit a formal application to the Land Administration Authority (LAA). Regulation 11 of the Land Regulations 2011 specifies that the application must be made using prescribed forms provided by the LAA and must be accompanied by the necessary documentation.
[27] Under Regulation 11(2) of the Land Regulations 2011, the necessary documentation accompanying an application for a lease includes documents verifying their identity and citizenship status. For citizens of Lesotho, this may include a national identity card or passport. Non-citizens must provide additional documentation, such as a business permit or approval from the Minister (where applicable), to show they are eligible to apply for a lease under Section 6 of the Land Act 2010. If the land being applied for is already in use or occupied, the applicant must provide proof that they can apply for a lease on the land. This could be in the form of prior allocation letters, temporary occupation permits, or documents proving legal use or land access.
[28] The necessary documentation accompanying a lease application includes proof of identity and citizenship, proof of ownership or occupancy (if applicable), a land use proposal or development plan, a certified land survey report, and an EIA report if required. Additionally, applicants must obtain consent from local authorities where applicable and provide proof of payment of the relevant fees. These requirements ensure transparency, proper land use planning, and compliance with Lesotho's land administration laws.
[29] The principle that unregistered transfers of land are legally ineffective was further underscored in Tšolo v Tšolo (C of A (CIV) 14/2018), where the Court of Appeal held that an unregistered transfer could not confer any legal rights or interests in land.
[30] The Land Act 2010 and the Land Regulations 2011 of Lesotho provide a detailed and stringent legal framework for land rights administration, including provisions related to cancelling and expunging leases that may have been improperly or unlawfully registered in favour of other persons. These provisions address situations where leases have been erroneously issued, fraudulently obtained, or are otherwise legally questionable. The legal process for cancelling and expunging such leases is governed by fairness, transparency, and procedural compliance, with oversight from the relevant land authorities and courts.
[31] Section 44 of the Land Act is particularly instructive on the issue of lease cancellation. Under this provision, the Commissioner of Lands has the power to cancel a lease where it is determined that it was granted contrary to the requirements of the Act. This may include cases where the lease was issued without proper authority, where the leaseholder has failed to comply with conditions attached to the lease, or where the lease was obtained through fraudulent or deceitful means.
[32] Once a lease has been cancelled, the next step is often to expunge its registration from the official records maintained by the Deeds Registry. This is a crucial step in ensuring that the land records accurately reflect the legal status of the land and its rightful holders. Regulation 27 of the Land Regulations 2011 guides this process, stipulating that where a lease is cancelled, the relevant authorities must expunge it from the register to prevent any future reliance on it.
[33] The expungement process, as outlined in the Land Regulations, is integral to protecting the integrity of the land registration system. By ensuring that leases that have been lawfully cancelled are removed from the registry, the law seeks to prevent further confusion or legal disputes over the land. This is particularly important in cases where a lease has been issued in error or where it has been fraudulently obtained. Expunging such leases from the records safeguards the interests of the rightful landowners and reinforces the principle that land registration must be clear and unambiguous. While the Commissioner of Lands holds the statutory authority to cancel leases and initiate their expungement from the land register, the courts play a crucial role in ensuring that these powers are exercised lawfully and in accordance with the principles of fairness and justice.
Consideration of the appeal
[34] This appeal raises important questions concerning the application of the Land Act, 2010, and the Land Regulations, 2011, in determining the ownership and possession of the disputed parcel of land in Ha Tsolo, Maseru. At the heart of this appeal are rival claims advanced by the appellant, Mr. Moeketsi Monaheng, and the respondent, Mr. Richard Mahlomola. The case presents a complex scenario of competing interests, historical possession, and statutory rights under Lesotho's land laws.
[35] The appellant contends that the court a quo erred in granting judgment in favour of the respondent, asserting that his mother, and subsequently he himself, were in continuous possession of the disputed land. In contrast, the respondent claims lawful possession under an agreement of sale, which he asserts was executed between himself and the original owner of the land, Mrs. Makapotene Kori. The respondent's failure to register this sale led to the appellant being granted a lease by the Land Administration Authority (LAA) in 2013, creating the primary contention in this dispute.
Legal Framework
[36] The legal framework governing this dispute is derived from the Land Act, 2010, and the accompanying Land Regulations, 2011. Under these instruments, urban land administration is strictly governed by statutory bodies such as the LAA, while the role of traditional authorities, including chiefs, has been superseded in urban areas. Specifically, section 10 of the Land Act clarifies that chiefs no longer have the authority to allocate land within urban areas, and any such allocation must be formalised through leases granted by the LAA.
[37] Sections 24 and 25 of the Land Act further impose stringent requirements on the transfer of land rights, requiring that all such transfers be registered with the Deeds Registry. Unregistered agreements, such as the purported sale between the respondent and Mrs. Kori, cannot confer legal title or possession under the law. The appellant’s registered lease, duly issued by the LAA, holds a stronger legal footing than the respondent’s unregistered claim.
Analysis of Grounds of Appeal
[38] The appellant advances several grounds of appeal, each of which merits careful consideration.
1. Possession and Occupation
[39] The appellant claims that his family has been in continuous possession of the disputed land, a fact that was allegedly overlooked by the court a quo. However, without formal allocation or registration under the Land Act, possession alone does not confer legal rights. Section 19 of the Land Act stipulates that all land transactions must comply with formal statutory provisions, including requiring land to be leased and registered with the LAA. Thus, the appellant’s formal lease, granted in 2013, gives him a stronger claim than the respondent’s unregistered sale agreement.
2. Validity of the Sale Agreement
[40] The appellant challenges the authenticity of the respondent’s sale agreement, arguing that it was neither proven nor registered in accordance with the law. The Land Act explicitly requires the registration of all land transactions, and section 25 mandates that unregistered agreements are legally ineffective. In this case, the respondent’s reliance on an unregistered sale agreement cannot displace the appellant’s registered lease.
3. Alleged Misapplication of the Law
[41] The appellant further contends that the court a quo misapplied the law by accepting the respondent’s claim based on an unregistered sale agreement. This Court agrees that the failure to register the sale with the Deeds Registry, as required under section 25 of the Land Act, undermines the respondent’s claim. The law is clear that no legal rights can arise from unregistered agreements, and the appellant’s registered lease must, therefore, take precedence.
4. Lease Cancellation
[42] The court a quo’s decision to cancel the appellant’s lease and order his ejection from the land was based on its erroneous reliance on the unregistered sale agreement. Under section 44 of the Land Act, leases may only be cancelled where they have been unlawfully granted or obtained through fraud. There is no evidence in this case to suggest that the appellant’s lease was issued illegally or fraudulently. On the contrary, the LAA granted the lease following a formal application process, and the respondent did not contest its validity at the time of issuance.
5. Burden of Proof
[43] The appellant also argues that the burden of proof was wrongly shifted to him, with the court a quo requiring him to prove his inheritance of the land. The onus, however, lay with the respondent to prove his entitlement to the land, particularly as the appellant held a valid lease. The respondent’s failure to provide documentary evidence of his lawful allocation or registration of the sale agreement further weakens his case.
Disposal
[44] It is evident from the foregoing discussions that the appellant’s registered lease, issued per the Land Act, provides him with a stronger legal claim to the disputed land. The respondent’s reliance on an unregistered sale agreement cannot displace the appellant’s rights under the lease, and the court a quo erred in cancelling the lease and ordering the appellant’s ejection from the land. For these reasons, the appeal must be upheld, and the court a quo's judgment set aside.
Order
[45] The order is as follows:
(a) The appeal is upheld.
(b) The judgment of the court a quo is set aside.
(c) The appellant’s lease is reinstated, and he shall remain in possession of the land.
_________________________________
K E MOSITO
PRESIDENT OF THE COURT OF APPEAL
___________________________
S P SAKOANE
CHIEF JUSTICE
I agree
________________________________
P MUSONDA
ACTING JUSTICE OF APPEAL
FOR APPELLANT: Adv L. Lefikanyana
FOR RESPONDENTS: Adv M. Rafoneke