Rats'iu v Standard Lesotho Bank Ltd (C of A (CIV) 02/2024) [2024] LSCA 3 (3 May 2024)

LESOTHO

IN THE COURT OF APPEAL OF LESOTHO

HELD IN MASERU

C OF A (CIV) 02/2024

In the matter between:

MONAHENG CASWELL RATṤIU APPELLANT

AND

STANDARD LESOTHO BANK LTD 1^ST RESPONDENT

LESOTHO BANK (LIQUIDATION) 2^ND RESPONDENT

THE ESTATE OF LATE KEBITSA JULIUS RATSIU 3^RD RESPONDENT

ESTATE OF THE LATE MASELLO ADEL RATSIU 4^TH RESPONDENT

THE MASTER OF THE HIGH COURT 5^TH RESPONDENT

DEPUTY SHERIFF (Mr. V. Masenyetse) 6^TH RESPONDENT

MICHAEL PHALO PHATELA 7^TH RESPONDENT

LAND ADMINISTRATION AUTHORITY

(COMMISSIONER OF LANDS) 8^TH RESPONDENT

REGISTRAR OF DEEDS 9^TH RESPONDENT

MASERU CITY COUNCIL 10^TH RESPONDENT

ATTORNEY GENERAL 11^TH RESPONDENT

 

 

CORAM: SAKOANE CJ

DAMASEB AJA

DR P. MUSONDA AJA

 

HEARD: 15 APRIL 2024

DELIVERED: 3 MAY 2024

 

SUMMARY

Sale in execution – sale not challenged by judgment debtor during her lifetime – property transferred and registered in names of buyer – whether an heir has any right to seek nullification of the sale, transfer and registration of the property in the names of the buyer.

 

JUDGMENT

SAKOANE CJ:

Introduction

[1] The issue in this appeal is whether the heir has locus standi to challenge a sale in execution of immovable property processed and concluded during the lifetime of deceased judgment-debtor. Mathaba J decided the issue against the heir who is the appellant.

 

Background facts

[2] In 2001 (date is not disclosed in the record) Standard Lesotho Bank (the 1^st respondent) sued the appellant’s mother who traded as Mantšonyane Hotel and obtained judgment in its favour.

 

[3] On 16^th December 2002 a writ of execution was issued against her immovable property.

 

[4] The immovable property was bought by the 7^th respondent (the buyer) at a sale in execution on 31^st March 2003. On 19^th July 2009, the deputy-sheriff registered the property in his names and obtained a lease. He transferred the property to the 7^th respondent on 18^th May 2015 having obtained the statutory consent of the Director General of the Land Administration Authority¹ on 30^th March 2015.

 

[5] The appellant’s father and mother passed on on 3^rd February 2011 and 29 January 2011, respectively. Thereafter the appellant was appointed by the family as their heir on 27^th May 2021.

 

[6] The family letter appointing the appellant as the heir mentions the property as the residential plot at Ha Thamae Deed No. 8007. This is the deed number under which the parents of the appellant registered the plot in the Deeds Registry on 23^rd January 1969.

 

[7] After being appointed as the heir, the appellant approached the Master of the High Court for assistance to transfer and register the property into his names. After a survey was done, he discovered that a lease on it had already been issued to the 7^th respondent in 2015. Therefore, a second lease could not be issued.

 

[8] On perusal of the files of the Master, the appellant also discovered that the Bank had indeed sued his mother and obtained judgment in its favour. Issuance of a writ followed, and the immovable property attached and sold in execution. The deputy-sheriff transferred and registered it in his names and subsequently in the names of the 7^th respondent.

 

Discussion

[9] The nub of the appellant’s case is that by virtue of his status of heirship, he has locus standi and the right to seek the nullification of the attachment and sale of the property as it could not be sold without the consent of the mortgager (his late mother). To succeed in the endeavour to wrestle the property from the buyer, appellant must jump over the following seven hoops:

 

(a) Failure to service a mortgage bond or pay on the due date triggers the exercise of the right of the mortgagee to foreclose and sell immovable property in execution².

 

(b) The mortgagee’s consent to release the property from the operation of the bond, is not required for the deputy-sheriff to transfer the property to the buyer³.

 

(c) On attachment of the property in execution, the judgment creditor acquires a real right, known as pignus judiciale (judicial mortgage in favour of the judgment creditor). The effect thereof is that the attached property passes out of the estate of the judgment debtor and the judgment creditor is entitled to proceed with the sale and get its proceeds⁴.

 

(d) An invalid or defective sale in execution is perfected after delivery and registration of transfer. The sale can only be impugned on grounds that the purchaser’s acquisition was tainted with bad faith, or knowledge of defect⁵.

 

(e) Upon transfer of the dominium in the property, the estate of the judgment creditor is divested of the property⁶.

 

(f) On the death of the deceased, the heir does not acquire ownership of the estate property. He acquires a mere right to claim residual assets from the executor after the winding up of the estate⁷.

 

(g) The mother, who was the judgment debtor, did not rescind or appeal the judgment that authorized attachment and sale in execution. Thus, finality was reached in the lis between the judgment creditor and judgment debtor.

 

Disposition

[10] When the appellant was appointed as the heir to his mother’s estate, the property had long ceased to be part of the estate. His heirship does not, therefore, bestow on him any right to inherit it. The learned Judge made a correct determination that the appellant failed to go through the seven hoops, and therefore, did not deserve to be crowned the winner. In my respectful opinion, ours is to nod approval.

 

[11] En passant, the appellant is wrong to join the estate in the suit. The estate is not a legal persona. The executor is the person to sue⁸.

 

Order

[12] In the result, the following order is made:

1. The appeal is dismissed.

2. The appellant to pay costs to the 7^th respondent.

 

 

_________________________

S. P. SAKOANE

CHIEF JUSTICE

 

I agree

__________________________

P. T. DAMASEB

ACTING JUSTICE OF APPEAL

 

I agree

 

_____________________________

P. MUSONDA

ACTING JUSTICE OF APPEAL

 

 

For the Appellant: L. G. Mokhatholane

For the Respondents: S. P. Shale