Litsietsti Selimo V Principal Secretary Ministry of Education & 3 Others. (C of A (CIV) No 37/2024) [2024] LSCA 31 (1 November 2024)

LESOTHO

 

IN THE COURT OF APPEAL OF LESOTHO

 

HELD AT MASERU                          C OF A (CIV) NO.37/2024

LC/APN/0001/2024

 

In the matter between:

 

LITSIETSI SELIMO                                                 APPELLANT

 

AND

 

PRINCIPAL SECRETARY OF MINISTRY OF

EDUCATION                                                    1^ST RESPONDENT

MINISTRY OF EDUCATION & TRAINING        2^ND RESPONDENT

THABA-TSEKA TECHNICAL INSTITUTE

(TTI)                                                               3^RD RESPONDENT

ATTORNEY GENERAL                                   4^TH RESPONDENT

MOSIOUA HOLOMO                                       5^TH RESPONDENT

MAMAMELLO HOLOMO                                 6^TH RESPONDENT

THABA-TSEKA URBAN COUNCIL                  7^TH RESPONDENT

 

CORAM:           SAKOANE CJ

DAMASEB AJA

                        CHINHENGO AJA

 

HEARD:           8 OCTOBER 2024

DELIVERED:   1 NOVEMBER 2024

 

SUMMARY

Dispute over tittle to land – The task of administratively resolving disputes with regard to land parcel boundaries is not a dispute over tittle to land – Jurisdiction – Land Administration Authority has the statutory competence to arbitrate disputes in terms of s 5, however such power does not delay the jurisdiction of the courts due to the fact that litigants under the s 5 arbitration process in the forum contended for by the appellants, will have lesser rights than would be the case if their dispute is adjudicated by a court of law.

 

 

JUDGMENT

 

P T Damaseb AJA

Introduction

1. In the Land Court,[1] before Ralebese J, was a dispute between the Government of Lesotho (GoL) and the 1^st, 2^nd and 3^rd respondents concerning ownership or right of occupation of a parcel of land in Thaba-Tseka on which is located Thaba-Tseka Skills Training Centre – later remained the Thaba-Tseka Technical Institute (the site or TTTI).

 

2. According to the GoL, in or about 1978 or 1979 and with the financial support of the World Bank, the site was developed to improve the skills of the people of Thaba-Tseka. Construction on the site started in 1981 and comprised an administration block, a workshop for brick-laying, textile facility and six staff houses. There were already Rondavels on the site constructed by the Agriculture Ministry.
3. The case for the GoL is that the site was owned by the TTTI and that ‘nobody ever claimed to be the owner of the whole or certain portion of the plot’. TTTI, it is said, used the site ‘without any interference’: at least not until 2018 when the 1^st respondent ‘arrived and put the building stones on the site’ – conduct which was allegedly not countenanced by the director of TTTI. 1^st respondent continued regardless and proceeded to construct a foundation, it is alleged.

 

4. In or about 2020, 2^nd and 3^rd respondents also started constructing on the site belonging to TTTI. That construction was also disapproved by TTTI’s Director.

 

5. It is further alleged that upon conducting an ‘investigation’, the GoL established that the land allocating authority had issued leases (numbers 39361 – 036 and 39361 – 037) to the respondents. That allocation, the GoL alleges, is unlawful because the site lawfully belonged to TTTI.

 

6. According to the GoL, it has title over the site and the leases allocated to the respondents by the allocating authority ‘should be cancelled’ and the 1^st, 2^nd and 3^rd respondents ‘ordered to vacate from the land of the [TTTI]’.

 

7. It is stated further that because those respondents were warned not to construct on the site prior to their doing so, the court should not compensate them for the improvements they had made to the site.

 

8. The GoL sought the following relief:

 

‘1. Declaration that the 3^rd Applicant is the lawful owner and title holder of the portion of Land in dispute.

 

2. Declaration that the occupation of the site by the 1^st, 2^nd and 3^rd Respondents is unlawful and wrongful.

      

3. Direction that the portion of the land which the 1^st, 2^nd and 3^rd respondent have occupied be restored to the 3^rd applicant forthwith.

 

4. Interdicting the respondents from exercising any possession, ownership and/ or in any way whatsoever holding themselves out as title holder of the portion of the land in dispute.

 

5. Directing that the leases registered by 4^th Respondent in favour of the 1^st, 2^nd and 3^rd Respondents be cancelled forthwith.

 

6. That lease No. 39361.036 and 36361.039 in possession of the 1^st, 2^nd and 3^rd Respondents issued by the 4^th Respondents be cancelled.

 

7. An order that the applicants should not compensate the 1^st, 2^nd and 3^rd respondents respectively for the expenses they had incurred in constructing the structures on the 3^rd applicant’s site as they were being warned before they started with the construction of the buildings that the land in dispute belongs to the 3^rd Applicant.

 

 

Opposition

9. All three appellants opposed the application. In his answering affidavit the 1^st appellant (then as 1^st respondent) took the point in limine referenced by the learned judge a quo and which I will set out presently. He also specifically dealt with the GoL’s claim of ownership to the land. According to him, the disputed land ‘never formed part of the Ministry of Agriculture nor of TTTI (TSTC). Applicants are put to the proof thereof. The site in dispute were vacant and unoccupied, and have never been allocated to any person, until around 2017 when 1^st Respondent was allocated the site’. The deponent adds that the fact that the site was unoccupied was ‘confirmed by the number of persons including the Urban Council and the Town Clerk.’

 

10. It is apparent then that the real dispute between the parties was who is the true owner of a clearly defined and identifiable parcel of land. There is no issue raised that the parties were in disagreement about land boundaries or encroachment.

 

11. It is against that factual setting that the point in limine was raised and is neatly captured in the court a quo’s judgment as I show below.

 

12. The court a quo explained the appellant’s point of law thus:

 

‘[3] The first preliminary point raised by the 1^st respondent is that in terms of the laws governing the Land Administration Authority (LAA), the court’s jurisdiction is delayed as the parties ought to have submitted to mandatory arbitration prior to the institution of the instant proceedings. The first leg of this contention is that in terms of section 5(2) (d) of the Land Administration Authority Act, the LAA is vested with the power to arbitrate on land deeds registration and cadastral complaints and disputes including land parcel boundaries. The other leg of the argument is that section 3(a)(g) of the Land Survey Act (as Amendment) authorizes the Chief Surveyor to administratively resolve registration and cadaster complaints and disputes concerning land parcel boundaries. The 1^st respondent argued that the two provisions mandated the applicants to have referred their case for arbitration by the LAA or the Chief Surveyor before they could proceed to institute these proceedings. The 1^st respondent relied on the cases of Kompi v Government of Lesotho and Basotho Action Party and Others v Lebohang Thotanyana and Another for the contention that were the legislature has created an alternative dispute resolution mechanism the parties should utilize that mechanism instead of approaching the court. Counsel for the 1^st respondent contended that the applicants ought to have submitted to mandatory arbitration in terms of section 41 of the Arbitration Act as this Act applies to disputes under section 5(2)(d) of the Land Administration Act and section 3(1)(g) of the Land Survey Act (as Amendment) as if these provisions were arbitration agreements.

 

[4] The applicants on the other hand contended that their claim related to title over land and was not a dispute over boundaries as anticipated in section 5(2)(d)(i) of the Land Administration Authority Act or the registration or cadastral complaint in terms of section 3(1)(g) of the Land Survey Act (as Amendment). The gist of their argument was that their claim was not subject to arbitration…’

 

 

 

Land Court’s approach

13. The court a quo focused on the interpretation of the word "resolve" as used in the Land Survey Act 1980 and in the Land Administration Authority Act 2010. The judge below lost sight of the fact that the latter statute was amended in 2016 to replace the word ‘resolve’ in s 5 of that Act with the words ‘arbitrate deeds’.

 

14.  The court a quo therefore did not consider the import of the word ‘arbitrate’ introduced by the 2016 amendment.

 

15. Be that as it may, an appeal lies against the order and not the reasons. The significant thing is that the Land Court concluded  that the two pieces of legislation relied on by the appellants did not support the point in limine.

 

16. I will therefore proceed to consider if the order of the Land Court is correct in law.

 

The appeal

17. According to the appellants, the subject-matter of the dispute is arbitrable by the Land Administration Authority or the Chief Surveyor in terms of the Land Administration Authority (Amendment) Act 2016 and the Land Survey (Amendment) Act 2012, read with the Arbitration Act 12 of 1980. On that approach, the Land Court’s jurisdiction was delayed until the conclusion of the arbitration ‘as statutorily prescribed’.

 

 

The Role of the Chief Surveyor

18. Section 3 (1) of the Land Survey Act 1980 as amended by the Land Survey (Amendment) Act of 15 of 2012, creates the office of Chief Surveyor within the Land Administration Authority[2]. That office has several powers and functions not all of which are relevant to the outcome of the present appeal. As far as it is relevant to the present appeal, in terms of s 3 of the Land Survey Act 1980[3], the Chief Surveyor functions include:  

 

“(g) To administer the Land cadastre system, which includes the following tasks[4]:

(i). . .

(ii) . . .

(iii) . . .

(iv). . .

(v) To resolve, administratively registration and cadastre complains and disputes will regard to Land parcel boundaries.”

 

19. It admits of no doubt from the nature of the dispute as defined by the pleadings, that the dispute between the GoL and the appellants concerns title to land.

 

20. There is a compelling reason why it could not have been the intention of the Legislature that the courts’ judicial power should yield to the Chief Surveyor as submitted by the appellants. In my view, the statutorily assigned ‘task’ of the Chief Surveyor to “administratively” resolve “disputes” with regard to ‘land parcel boundaries’ is a far cry from adjudicating disputes over tittle to land.

 

21. The adjudicating function involves making findings of fact and rendering a binding decision. An arbitration is a quasi-judicial proceeding: Estate Milne v Donohoe Investments (Pty) Ltd and Others 1967 (2) SA 359 (A) at 373H and the principles which govern the procedure in judicial proceedings apply to an arbitration: Shippel v Morkel and Another 1977 (1) SA 429 (C) at 434A – E.

 

22. Adv. Nyabela’s argument on behalf of the appellants is that the power to “resolve” in the course of “arbitration” includes the power to make a final decision as contemplated by the Arbitration Act. Final in the sense that no appeal would lie against such “resolution”, save a review. Attributing such judicial power to the Chief Surveyor is irreconcilable with the Legislature’s chosen word “administratively” before the word “resolve”. Administrativley resolving a dispute cannot be equal to taking a binding decision as contemplated in the Arbitraion Act.

 

23. I am satisfied that the Chief Surveyor does not enjoy the quasi-judicial power which would exclude the jurisdiction of the Land Court.

 

The Land Administration Authority

24. The appellants also posit that the Land Administration Authority has the statutory competence to arbitrate the dispute between the parties, and that that power delays the jurisdiction of the courts.

 

25. The particular power relied on is located in s 5 of the Land Administration Authority Act 2010 as amended by the Land Administration (Amendment) Act 2016. The amended provision reads (in relevant part):

 

“Functions of the Authority

5 (1)   The Authority shall be an agency of the Government of Lesotho responsible for Land Administration and shall operate under the general supervision of the Minister.

 

(2)      Without prejudice to the generality of subsection (1) of the functions of the Authority shall be-

(a)      to administer the Land registration system and shall include the following tasks:

 

1. establish and maintenance of accurate and complete database containing information on Land holding in Lesotho;
2. granting consents for land transactions whenever necessary;
3. registering all land transactions requiring registration;
4. issuing leases to land;
5. maintain a record of all rights and interests in land;
6. providing information regarding land holdings and other interests in land upon request;
7. initiating research for improvement of the efficient functioning of the land administration system.

(b)      To administer the surveying and mapping functions.

(c)      To perform functions created under the Deeds Registry Act 1967 in so far as they relate to land administration.

(d)      To arbitrate on land deeds registration and cadastre complaints and disputes, including which those relating to :

 

(i) land parcel boundaries …’’

 

 

26. The appellant relies on the said para (d) for the proposition that the Land Court’s jurisdiction is delayed until all domestic remedies have been exhausted.

 

27. According to the appellant’s counsel, para (d) engages s 41 of the Arbitration Act 12 of 1980 which states:

 

“41. Application of this Act to arbitration under special laws-

This Act shall apply to every arbitration under any law passed before or after the commencement of this Act, as if the arbitration were pursuant to an arbitration agreement and as if that other law were an arbitration agreement.

 

          Provided that if that other law is an Act of parliament, this Act shall not apply to any such arbitration in so far as this Act is excluded by or it inconsistent with that other law or is inconsistent with the regulations or procedure authorized or recognized by that law”.

 

28. In other words, according to the appellants, s 5 (2) (d) is a ‘special law’ as contemplated in s 41 of the Arbitration Act.

 

29. Under the present statutory scheme[5], an appeal lies from a decision of the Land Court to this Court as of right where the land Court sits as a court of first instance. On such appeal, this Court will be able to test the correctness of the Land Court’s decision, both on its interpretation of the law and the facts.

 

30. On the theory advanced by Adv Nyabila on behalf of the appellants, and if their interpretation of s 5 of the LAA is correct, an arbitration award made in terms of the Arbitration Act, read with s 5(d) will be final. In other words, it will not be appealable at all and may only be reviewable to the High Court.

 

31. Now, as a matter of law, a review is not concerned with the correctness of the decision but regularity and validity of the procedure followed by the decision-maker.[6]

 

32. In other words, disputants under s 5(d) of the Land Administration Authority Act arbitration process in the form contended for by the appellants will have lesser rights than would be the case if their dispute were adjudicated by a court of law. That could not have been what Parliament intended.

 

33. The interpretation contended for by the appellants therefore produces an absurd outcome.

 

34. Even on its own terms, s 5(d)(i) does not support the appellant’s case. The provision is concerned with ‘arbitration of deeds registrations, complaints and disputes . . . and cases relating to (i) land parcel boundaries.’

 

35. It will be recalled that the pleadings make clear that the parties’ dispute concerns who is the true owner of the land in question. In other words title to the land. This Court has held in Shale v Shale^[7] that:

 

“From the pleaded facts there cannot be any denying that the gravamen of the appellant’s case in the court below was the assertion of title to landed property. He challenged the 2nd respondent’s allocation to the 1st respondent and the consequential invalidation of the 1st respondent’s certificates of title over the same land. The dispute is over land and title thereto. It did not matter that the assertion of title is through inheritance.”

 

36. On the contrary, s 5(d) (i) is concerned with disputes ‘relating to land parcel boundaries’.

 

37. I am satisfied, therefore, that the appellants’ objection to the Land Curt’s jurisdiction was not supported by either the Land Survey Act 1980 (as amended) nor the Land Administration Authority Act 2010 (as amended). The Land Courts’ order dismissing the objection to its jurisdiction is, therefore, correct in law.

Costs

38. Costs were awarded against the appellants in the court below. That order remains undisturbed since the appeal fails. The only question is whether the appellants should be condemned in costs for the unsuccessful appeal.

 

39. The GoL did not insist on costs in the appeal.  That is to be commended because the issues raised in the appeal are of utmost public importance and assisted in the clarification of the law. It would therefore be inappropriate to mulct the appellants in costs.

 

Order

40. In the result, the following order is made:

 

1. The appeal is dismissed.
2. There is no order as to costs.

 

 

_____________________________

P.T. DAMASEB

ACTING JUSTICE OF APPEAL

 

 

 

 

 

I agree:    

_____________________________

S.P. SAKOANE

CHIEF JUSTICE

 

I agree:    

_____________________________

M. H. Chinhengo

ACTING JUSTICE OF APPEAL

 

For the Appellant:           Adv. K. Nyabela           

For the Respondents:      Adv M.J. Nku