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CIV/APN/286/93
IN THE HIGH COURT OF LESOTHO
In the Application of:
RAMOSAMO MAKHABANE Applicant
and
OFFICER COMMANDING (CID)(MAFETENG) 1st Respondent
THE ATTORNEY-GENERAL 2nd Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 12th day of August. 1993.
The applicant seeks, inter alia, an order directing the Respondents to release to him a Datsun E.20 Combi with registration numbers A.1182. The Respondents oppose the granting of the order. Affidavits have been duly filed by the parties.
In as far as it is relevant, the facts disclosed by affidavits are common cause viz. that prior to 5th November, 1985, the applicant was in possession of the vehicle, the subject matter of this dispute. On the day in
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question, 5th November, 1985, the police in Mafeteng seized and retained the vehicle. Consequently the applicant instituted these proceedings for an order as aforesaid on the ground that the vehicle was his lawful property. The Respondents resisted the order on the ground that the vehicle was the subject matter of a criminal charge against the applicant.
It would appear that a criminal charge of theft was indeed, preferred against the applicant on 1st April, 1987 in connection with this vehicle. The charge was, on 23rd August, 1990 dismissed on the ground that some witnesses for the prosecution had failed to turn up. As he had already pleaded to the charge, the applicant was found not guilty and discharged.
It is significant that having disposed of the criminal trial against the accused in the manner she did, the presiding officer did not make an order as to the disposal of the vehicle, the subject matter of this dispute. the question that arises is whether or not the High Court should, in the circumstances, make the order. In the contention of the applicant, the High Court should make the order and finds support for his contention in the decision of the court of Appeal in Ikanenq Makakole v. The Officer
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Commanding C.I.P.. Maseru and Another C.of A. (CIV) No. 18/85.
It is, however, important to observe that in Ikaneng Makakole v. The Officer Commanding C.I.P.. Maseru and Another, supra, the court was dealing with a case in which the applicant had never been criminally charged and found not guilty by any court. In the present case, the applicant has been criminally charged and found not guilty in connection with the theft of the vehicle, the subject matter of this dispute. That being so, the case of Ikaneng Makakole v. The Officer Commanding C.I.P.. Maseru and Another, supra. is clearly distinguishable from the present case and it is no authority that where the applicant had been criminally charged and found not guilty by a subordinate court, the High Court should make the order sought by the applicant.
In my view the provisions of subsection (3) of section 56 of the Criminal Procedure and Evidence Act, 1981 are applicable to the facts of the present case. The subsection reads:
"(3) If the judge or judicial officer concerned does not, at the conclusion of the relevant proceedings, make an order under
subsection (1), such judge
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or judicial officer or, if he is not available, any other judge or Judicial Officer of the court in question, may at any time after the conclusion of the proceedings make any such order and for that purpose hear such additional evidence, whether by affidavit or orally, as he may deem fit."
(my underlining)
I have underscored the words "judicial officer of the court in question" in the above cited subsection (3) of section 56 of the Criminal Procedure and Evidence Act 1981 to indicate my view that where, at the conclusion of a criminal trial a judicial officer omitted to make an order of a disposal an application to make such order must be made to the judicial officer concerned or in the absence of that judicial officer to any other judicial officer of the court which heard the criminal trial involving the subject matter of the disposal order sought by the applicant.
In the present case the Criminal trial was heard and concluded before a judicial officer in the subordinate court of Mafeteng. That being so, this application ought to have been brought before the judicial officer concerned in the subordinate court of Mafeteng and not before the High Court.
Consequently I would dismiss this application with
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costs.
B.K. MOLAI
JUDGE
August, 1993.
For Applicant: Mr. Phafane
For Respondent: Mr. Mohapi.