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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C of A (CIV) No. 21/2024
LC/APN/85/15
In the matter between
‘MABAKOENA LEKHOOA APPELLANT
and
PASEKA ALBERT LEKHOOA 1ST RESPONDENT
‘MAKANANELO AMELIA MAKUBAKUBE
LEKHOOA 2ND RESPONDENT
COMMISSIONER OF LANDS 3RD RESPONDENT
LAND ADMINISTRATION AUTHORITY 4TH RESPONDENT
CORAM: MOSITO P
MUSONDA AJA
VAN DER WESTHUIZEN AJA
HEARD: 24 APRIL 2025
DELIVERED: 02 MAY 2025
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FLYNOTE
Land Law – Registered lease – Allegation of fraud – Evidentiary burden – Donation inter vivos – Improvements made in good faith – Right to compensation – Presumption of regularity – Family dispute.
Where a litigant challenges the lawfulness of a registered lease on the ground of fraud, the law insists that fraud must be pleaded with particularity and proved by clear, cogent and convincing evidence. The burden is not discharged by mere suspicion or post hoc dissatisfaction. Courts will not infer dishonesty absent contemporaneous evidence of deceit directed at the administrative authority at the time of lease issuance.
In the context of family arrangements, a donation of land need not be reduced to writing if accompanied by unequivocal delivery and acceptance. The Court of Appeal reaffirmed the rule that substantial improvements undertaken in good faith by an occupier confer upon them a legal entitlement to compensation.
Held, that the appellant had not established fraud or misrepresentation in the procurement of the lease; her prolonged acquiescence in the respondents’ occupation and development of the property undermined her claim. The High Court was correct to find that a valid donation had occurred and that the equities did not favour cancellation of the lease without compensation. The appeal was dismissed with no order as to costs, concerning the domestic nature of the dispute.
JUDGMENT
MOSITO P
Introduction
[1] This is an appeal against the decision of the High Court (Land Court Division), delivered on 28 February 2024, by Mahase J, in which the learned judge dismissed the appellant’s claim for cancellation of a lease granted in favour of the first and second respondents. The judgment below found, inter alia, that the appellant had failed to establish fraud in the procurement of the
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said lease and that there had been a donation of the land to the respondents.
Background
[2] The dispute concerns a residential plot situated at Lithabaneng, Maseru. The land in question was initially allocated under a Form C to the appellant’s late husband in 1986. Following the marriage of the appellant’s son (first respondent) and the second respondent, the couple occupied the plot and, over the years, effected substantial developments thereon. Subsequently, a lease was issued in their joint names. The appellant now challenges the legitimacy of that lease. Against this factual backdrop, the appeal presents the following principal issues for determination.
Issues for Determination
[3] Four principal issues arise
In this appeal:
(a)
Whether the High Court erred in concluding that the appellant failed to prove that the lease was obtained fraudulently;
(b)
Whether the weight of the evidence ought to have compelled a judgment in favour of the appellant;
(c)
Whether the High Court erred in finding that there was a donation of the plot to the first and second respondents;
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(d)
Whether the High Court erred in concluding that the appellant’s failure to offer compensation for improvements disentitled her to the relief sought.
[4] The resolution of these issues calls for an examination of the legal principles applicable to allegations of fraud, the assessment of evidence, the requirements for the donation of land, and the entitlement to compensation for improvements.
The Law
[5] It is trite that allegations of fraud must be pleaded with particularity and proved by clear and convincing evidence. A well-established judicial authority expressing the principle that allegations of fraud must be pleaded with particularity and proved by clear and convincing evidence is found in the South African case of Absa Bank Ltd v Moore and Another1, where Binns-Ward J held:
“Fraud is a serious allegation, and it is trite that it must be pleaded clearly and with particularity. The party alleging fraud bears the burden of proving it, and the standard of proof is one of clear and convincing evidence. Mere suspicion or conjecture will not suffice.”
[6] A court cannot infer fraud from mere dissatisfaction with events, especially where the parties have enjoyed mutual benefit from the state of affairs now impugned.
[7] Moreover, a claim for cancellation of a registered lease must surmount the hurdle imposed by the Deeds Registry Act 1967 and the Land Act 2010. Registration under these statutes confers real rights, and such rights are not lightly disturbed absent
1 Absa Bank Ltd v Moore and Another 2017 (1) SA 255 (WCC) page 267. See also Davy v Garrett (1878) 7 Ch D 473 at 489.
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demonstrable illegality, fraud or fundamental procedural irregularity.
[8] It is also now firmly settled in this jurisdiction that where one party has, in good faith, expended significant resources in the improvement of land belonging to another, such party becomes entitled to compensation.2 With these governing principles in mind, I proceed to consider the issues arising in this appeal."
Consideration of the Appeal
[9] The issues arising in this appeal are to be resolved by reference to settled legal principles governing, respectively, the particularity and standard of proof required for allegations of fraud, the legal sanctity of registered real rights, and the right to compensation for improvements made in good faith on another’s land.
On the allegation of fraud
[10] The appellant contended that the second respondent obtained the lease fraudulently, aided by her husband. In approaching a matter where it is alleged that a lease document has been obtained fraudulently, one must begin with the foundational principles of legal reasoning, clarity in the burden of proof, and fidelity to established evidentiary standards. Fraud, in its legal sense, is a grave imputation. It signifies not merely error or irregularity, but a conscious and deliberate act to deceive. As such, it is treated with solemnity in judicial proceedings. Fraud must be
2 Taelo Michael Kolisang v Thabiso Victor Mahase & Others C of A (CIV) No. 55/2019.
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explicitly pleaded and proved strictly. It is a conclusion of law; it must be pleaded with the facts that give rise to it.
[11] Thus, the party alleging that a lease was procured fraudulently bears the legal burden to establish it—not merely to suggest it. Allegation, no matter how forceful or indignantly advanced, is not proof. The accuser must discharge this burden on a balance of probabilities, but with an appreciation that the inherent improbability of fraud requires that the evidence be clear, cogent, and compelling.
[12] The species of proof that the law demands in such cases is particular. In their pleadings and evidence, the party must set forth the material facts that constitute the deceit, whether that be the use of false documents, impersonation, misrepresentation to the issuing authority, or suppression of material information. These particulars must be both pleaded and proven.
[13] Judicial conclusions as to fraud cannot be inferred from mere dissatisfaction or conjecture. Courts do not lightly impute dishonesty. It is one thing to say that a party feels wronged by the outcome of a lease; it is quite another to prove that the document was surreptitiously obtained through falsehoods presented to an authority.
[14] Furthermore, the practical dimension is that, fraud must be established by the party who alleges it, and the evidence must be directed when the lease is procured. That is to say, the inquiry focuses not on what occurred years before or after, but on the integrity of the process that led to the issuance of the lease.
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Evidence adduced must therefore be contemporaneous and specific to the impugned transaction.
[15] It becomes apparent that the appellant in the present matter has not discharged the evidentiary burden imposed by law. As it emerged before the Land Court and now on appeal, the appellant's case was premised mainly upon retrospective dissatisfaction following the marital breakdown between the first and second respondents. It is not insignificant that for many years prior to the institution of proceedings, the appellant acquiesced in the occupation and development of the property by the very parties she now accuses of fraud. No objection was raised contemporaneously with the issuance of the lease, nor was there any credible evidence tendered to demonstrate that, at the material time when the lease was applied for and granted, deception had been practised upon the Land Administration Authority.
[16] Instead, the alleged confession of the first respondent—her son—was made informally and only much later, during a mediation process in the absence of the second respondent, who was a joint holder of the lease. That confession, assuming it to be admissible at all, is not contemporaneous evidence of the act of procurement; it is a retrospective account, made after the fact, in a wholly domestic and informal setting, and lacks the corroborative features that the law requires when fraud is in issue.
[17] Moreover, the appellant offered no documentary proof to demonstrate that false representations were made to the Commissioner of Lands or the Land Administration Authority when the lease was processed. No evidence was placed before the
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court to establish that the requisite forms were forged, that authority was fabricated, or that the administrative process was subverted through dishonesty. There is, in short, no contemporaneous documentary or testimonial evidence that goes to the integrity of the lease issuance process itself.
[18] The court’s concern is not with what may have occurred before the lease was contemplated or after it was granted, but with whether the act of procuring the lease was tainted by dishonesty. On the facts of the present case, the appellant has failed to place any such evidence before the court. Her case rests on subsequent family discord and informal allegations, not on proof that the lease was obtained through deception directed at the registering authority.
[19] Without such evidence, the presumption of regularity attaching to administrative acts must stand. It is a principle of deep constitutional value that administrative documents properly issued under statutory authority carry an aura of legality, unless displaced by cogent and contemporaneous proof of impropriety. That threshold has not been met in this case. Accordingly, and consistent with the principle stated, the allegation of fraud against the second respondent cannot succeed, for it is not grounded in proof directed at the transaction's integrity, but rather in post hoc grievance and unsubstantiated narrative.
[20] Indeed, in the absence of such evidence, and especially where the alleged perpetrator has, for an extended period, exercised the rights and endured the obligations associated with the lease without opposition, the courts will be disinclined to disturb what
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is presumed to be regular and valid administrative action. This presumption of regularity is not easily rebutted.
[21] The judgment of the court a quo reveals that the appellant provided no direct evidence of deception or forgery. On the contrary, her own case suggests acquiescence to the couple’s occupation and development of the land over several years, including the handing over of Form C. She only challenged the lease following the collapse of the 1st and 2nd respondents’ marriage. The learned judge a quo, in our view, cannot be faulted for concluding that no fraud had been proven.
On the weight of evidence
[22] The second ground of appeal is lamentably vague. It neither identifies which evidence was overlooked nor shows how it should have led to a different result. Fundamentally, an appellate court should not interfere with the trial judge's conclusions on the facts unless it is satisfied that the judge was plainly wrong. The mere assertion that “the weight of evidence” favours the appellant does not satisfy appellate scrutiny. An appellate court will not interfere with a trial judge's findings of fact or evaluative judgments unless satisfied that the judge was plainly wrong. Mere disagreement or assertion that the weight of evidence favours another conclusion is insufficient.
On the issue of donation
[23] The third ground attacks the finding that the land was “donated” to the respondents. It is evident from the record, however, that both the appellant and her late husband permitted the respondents to settle on the land and develop it without
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objection. The evidence of the second respondent, that the appellant’s husband gave them allocation certificates (Form C), stands unchallenged. In law, a donation need not be formalised if accompanied by delivery and acceptance, particularly in family arrangements. No statutory or customary requirement invalidates such a donation merely for want of formalities where the context confirms intention.
[24] A judicial articulation of the principle that a donation, particularly in a domestic or familial context, need not be formalised in writing if accompanied by delivery and acceptance, is found in the judgment of the Lesotho Court of Appeal in Mofoka v Mofoka3, where Grosskopf JA observed:
“In cases of donation inter vivos within the family, the courts have long recognised that such gifts may be valid even in the absence of formal documentation, provided there is clear evidence of the donor’s intention to give, coupled with acceptance by the donee and, where appropriate, delivery or possession. The law does not insist on rigid formalities in such circumstances, as long as the essential elements of a donation are present.”
[25] This passage affirms the principle that, especially within the family setting, the courts will look to the substance of the transaction rather than its form. The donor's intent, the donee's acceptance, and the transfer of control or possession constitute a valid donation in law, even where formal legal instruments do not accompany the act.
On the question of compensation
3 Mofoka v Mofoka LAC (2000–2004) 492 at 497F–G.
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[26] The appellant did not explain why she did not object to the occupation and improvements over an extended period, nor did she propose compensation for the erected structures. As held in Kolisang (supra), compensation must be made for such improvements if eviction is sought. This failure reflects negatively on the appellant’s bona fides and reinforces the correctness of the court a quo’s conclusions.
Disposal
[27] Considering the merits of the appeal against the applicable legal principles and the evidence on record, it remains to set out the appropriate disposal. None of the grounds of appeal has merit. The claim of fraud was not substantiated; the evidence does not support the version advanced by the appellant; the law on donations in domestic settings was applied correctly; and the court rightly considered the improvements in determining the equities of the matter.
Order
[28] The appeal is dismissed in its entirety. Given the domestic and familial nature of the dispute, and in line with the court a quo’s approach, there shall be no order as to costs.
______________________________
K E MOSITO
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PRESIDENT OF THE COURT OF APPEAL
I agree
______________________________
P MUSONDA
ACTING JUSTICE OF APPEAL
I agree
______________________________
J VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
FOR THE APPELLANT:
FOR THE RESPONDENT: