HIGH COURT OF LESOTHO
by the Honourable Mr. Justice J.L. Kheola on the 20th day of August.
day this appeal was heard by this Court there was no appearance for
the appellant. A few days later Mr. Phafane, counsel
appellant, came to my chambers to tender his apology for failure to
appear on the day of the hearing of the appeal. I need
not go into
the reason why he failed to appear because they are now the subject
matter in Che application for rescission of judgment
that was granted
in the absence of the appellant and his counsel.
court below the appellant sought an order of ejectment of the
respondent from a residential site and improvements thereon,
on Plot No.1225 in Mafeteng Urban Area.
common cause that the appellant is the younger brother of the
respondent. Their father died in August, 1987. He had
any will and his estate was administered according to Sesotho
customary law. Amongst the properties the deceased left were
residential site at Motse-Mocha, a residential site at Ha Seitlheko,
a residential site near the Hospital in Mafeteng. All the
registered in their late father's name.
appellant testified that his father was buried on the 29th August,
1987. On the 31st August, 1987 the respondent called all
the family who were nearby and told them that he was distributing the
deceased's property amongst his brothers and himself.
gave him a Mazda half truck with Reg. No. E1556; he gave him a house
near the hospital which is on site No.1225
and other immovable
properties. The respondent promised to prepare the documents relating
to site No. 1225 so that he could transfer
it to him. He never
transferred the site to the appellant. It is this house at Site
No.1225 that is the subject matter of this
appellant called Mothopi Michael Mokone who testified that at the
family meeting referred to by the appellant the respondent
house at Site No.1225 to the appellant.
version of the respondent is a complete denial that he allocated the
site\house to the appellant. He says that he allocated
the houses at
the Motlere and at Phahameng to the
learned Senior Resident Magistrate dismissed the applicant's claim on
the ground that her court has no jurisdiction in matters
law inheritance or succession. She was of the opinion that the matter
could conveniently be dealt with by the Local
or Central Courts or by
the High Court.
if the Local and Central Courts have jurisdiction in matters of
ejectment involving a house whose value may run into thousands
I tend to
agree with the learned Senior Resident Magistrate that before on
order of ejectment can be granted the appellant must
show that he has
a good title to the land in question. He can show this by producing a
certificate of allocation of the land to
him, a Form C or a lease.
The appellant has none of such documents. I am of the view that the
appellant misconceived his remedy.
He ought to have sought an order
to compel the respondent to transfer the site and the house to him;
and also an order compelling
the respondent to hand over the transfer
documents to him.
I am not
sure that the appellant can lawfully eject the
from the premises before the property has been transferred to him
because the property is still registered in the respondent's
in the name of the respondent's father.
above reasons the appeal was dismissed.
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