C.of A. (CIV) No.10. of 1984
IN THE LESOTHO COURT OF APPEAL
In the Appeal of:
ZAKARIA MATOOANE Appellant
And
TEBOHO PHILLIP Respondent
HELD AT MASERU
Coram:
SCHUTZ P.
AARON J.A.
WENTZEL J.A,
JUDGMENT
Aaron J.A.
This matter started off in Ramokoatsi Local Court where the present respondent sued the present appellant for compensation for 5 of his cattle which had been speared to death. For the sake of clarity I shall refer to the present respondent as plaintiff, and to the present appellant as defendant.
The Local Court gave judgment for plaintiff; ordering defendant to replace the 5 head of cattle and to pay M15.50 in costs. Defendant took the matter on appeal to the Central Court but the appeal was dismissed. He appealed again, to the Judicial Commissioner, and this time his appeal was allowed. Plaintiff then took the matter on appeal to the High Court, which allowed the appeal and restored the judgment of the Local Court.
Now the defendant wishes to note a further appeal to this Court. His right to note such as appeal is limited. The effect of section 17 of the Court of Appeal Act, 1978, is that a person aggrieved by any judgment of the High Court in its civil appellate
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jurisdiction may appeal to this Court only
on a ground of appeal which involves a question of law, but not on a question of fact;
and with the leave of either this Court or that of the judge who heard the appeal in the High Court.
Defendant did not place before us a certificate from the trial judge, but applied to this Court for leave to appeal. The application was coupled with an application for condonation of the late noting of the appeal.
After argument was heard, the application was dismissed with costs, with an intimation that reasons would be given later. These are now the reasons.
There are two sections in the Court of Appeal Act which impose limitations on the right of a party, where there has already been an appeal to the High Court, to note a further appeal to this Court: these are section 8, which regulates criminal appeals, and section 17, which regulates civil appeals. Some such limitation is necessary because unless the right of further appeal is restricted to only those cases where the interests of justice require that the parties have such further right, the work of the Appeal Court would become unnecessarily clogged, and the smooth administration of justice will suffer.
The basic criterion adopted in deciding which cases may be taken on appeal, once there has already been an appeal to the High Court, is whether the issue involved is one of fact or of law. The justification for this is that an issue of fact generally concerns only the parties involved in that case, and it is considered that their interests have been sufficiently protected if they have
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had the opportunity to argue their case in at least two Courts, one of which is the High Court, An issue of law, on the other hand, has a broader application, and will probably after the rights of persons other than those involved in the particular case. Parties are accordingly permitted a further right of appeal, to this Court. But even this is not an unlimited right: here the second requirement comes into play, for even if the issue is a legal one, it is still necessary for the party who wishes to appeal to obtain leave, either from the Court of Appeal itself, or from the judge a quo.
There are some questions of law which come very close to being questions of fact. One example is whether the judge a quo misdirected himself in any respect in considering the evidence. Such misdirection may take the form of having misconceived the issue that was before the Court (such as occurred in the case of Lesotho Union of Bank Employees v. Barclays Bank Limited, a judgment of the Court of Appeal, Civil Appeal No. 14 of 1984), or of having taken a wrong view of the onus. In such cases, the effect of the misdirection is that the appeal before the High Court was not a proper or adequate adjudication and so justice requires that the parties should be afforded another opportunity of arguing the matter on appeal. In cases where there has been a misdirection, it is not sufficient for the Court of Appeal to find this: it must also consider whether the misdirection caused the judge a quo to come to a wrong conclusion. The test adopted is whether a reasonable Court, properly directed, would on the evidence before the trial Court have come to the same conclusion as the High Court.
A practice has developed, even where there has been no misdirection or irregularity in the Court a quo, of formulating a
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question along these lines: "whether a reasonable Court could, on the evidence before the trial Court, have come to the same conclusion as the trial Court". Strictly speaking, this is a question of law, as has been held by this Court in the case of Letsoela and Letsoela vs. Letsoela, (CIV/APP. 11 of 1983).
In truth, however, where there has been no misdirection or irregularity, it amounts to no more than dressing up a question of fact as a question of law. It is possible to do this in every case, and by so doing, to create on paper a "question of law" even though the real and substantial issue between the parties is only a factual one. This practice should not be encouraged; and it must not be thought that merely because the question is cast in this form, leave to appeal will automatically be granted. The leave of this Court or of the judge a quo is still needed, and in considering whether leave to appeal should be granted, consideration will be given to whether the issue is, in substance, purely a factual one (which could include questions of credibility, probabilities, and the balancing of one version against the other),or whether it is necessary to reconsider the facts because there has been a misdirection, irregularity or procedural defect in the Court a quo.
In the present case, there is no suggestion of there having been any misdirection by the judge a quo, or that he approached the issues before him in an incorrect manner. In the trial Court, the President had decided the case on circumstantial evidence; no one had actually seen the defendant spear plaintiff's cattle, but the President took into account prior threats by the defendant, and applied the idiom that "a man may be trapped by his tongue".
The Judicial Commissioner had disagreed, because he felt chat the President should have considered the possibility that
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'someone with a grudge against the plaintiff might have heard defendant utter the alleged threatening statement, and during the night in question he went and killed the plaintiff's cattle so that it could be inferred that it was the defendant who did so".
In the High Court, the learned Judge considered this speculation to be coo remote and far-fetched, end while possibly an approach that might be adopted in a criminal case, not one to be adopted in a civil matter. He pointed out that the Judicial Commissioner had not seen or heard the witnesses, and could not therefor gauge their demeanour or the atmosphere of the trial. The approach of the learned judge was perfectly correct, and cannot be criticized, and it follows that what this Court will in effect "be asked to do, if leave to appeal is granted, is simply to reconsider the evidence. This is apparent from the grounds of appeal, which contains language such as "the learned presiding Chief Justice misdirected himself by also overlooking these facts and probabilities, or by not attaching due weight to them". If the judge a quo did overlook facts or probabilities in his assessment of the evidence, that is not strictly speaking a misdirection, and the ground of appeal raises in substance merely a factual issue.
All of the grounds upon which applicant seeks leave to appeal are of this nature. There is the added consideration that this matter has already been heard by four different Courts. It follows that, notwithstanding the formulation of the issues as "question of law", this was not in the view of the Court a matter in which leave to appeal should be granted. The application was accordingly dismissed with costs.
Signed S. Aaron
S. AARON
Judge of Appeal
I agree Signed W.P. Schutz
W.P. SCHUTZ
President
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I agree Signed E.M. Wentzel
E.M. WENTZEL
Delivered on this 28th day of January 1965 at MASERU.
For Appellant : Mr. Kolisang
For Respondent: Mr. Maqutu
