IN THE COURT OF APPEAL OF LESOTHO
C of A (CIV) N0.16 OF 2011
In the matter between:
CONSTITUENCY COMMITTEE BNP MAFETENG FIRST APPELLANT
NATIONAL EXECUTIVE COMMITTEE BASOTHO
NATIONAL PARTY SECOND APPELLANT
BASOTHO NATIONAL PARTY THIRD APPELLANT
FAROOQ ISSA RESPONDENT
Coram: Scott JA
Heard: 11 October 2011
Delivered: 21 October 2011
Bona fideoccupier, having made improvements on another’s property, and being in possession of it, entitled to claim compensation for the improvements, to employ a lien to enforce such claim and to spoliation relief following disturbance of his possession
 In 1998 The Basotho National Party (BNP) was in possession, preparatory to eventually obtaining title, of site 07471-004, Mafeteng (the property). In that year occupation of the property, then a vacant lot, was given to Mr. Farooq Issa (Issa) who caused the construction on it, at his own expense, of a shop, an office and a surrounding wall. From October 1999 until March 2008 he let the property for business purposes to Dr. Abdulla Shouman (Shouman). On 1 April 2008 Shouman entered into a further lease of the property, this time in terms of a written lease entered into with Mr Ehsan Issa. The latter lease was for a renewable period of five years. With effect from 6 February 2009 BNP became the registered lessee of the property in terms of the Land Act, 17 of 1979. On 4 November 2010 BNP addressed a letter to Shouman demanding payment of rental for use of the property and that such payment be made into its bank account. As a result Shouman paid rent for November and December 2010 as demanded and not to Ehsan Issa.
 It was against that factual background that Issa, alleging that Ehsan Issa was his agent in concluding the 2008 lease, and that he was entitled to the rentals due by Shouman, applied to the High Court for an order, in final form, interdicting BNP from collecting rent for the property and directing Shouman to pay rentals to him.
 Mahase J. granted the order. BNP has appealed. Other appellants in the case are BNP’s Mafeteng Constituency Committee and BNP’s National Excecutive Committee, both having been cited as co-respondents in the court below. Issa is the only respondent.
 The underlying legal basis for Issa’s claim to the relief sought in the court a quo may be summarised as follows. He alleged that in 1998 he and BNP agreed that his site, 07471-034, would be exchanged for the property. He accordingly took occupation of the latter and he gave BNP a lease document in respect of his site. BNP had applied for a lease of the property and the arrangement was that once BNP acquired the lease the property would be transferred to him. It was his case that the agreement of exchange was entered into in good faith and he improved the property in anticipation of such transfer. He was accordingly entitled in law to retain possession of the property, and to receive the rentals as a concomitant, until compensated by BNP for the improvements. Although the 2008 lease was concluded by Ehsan Issa, the latter was his agent and he himself was the undisclosed principal. Accordingly, Shouman was Issa’s tenant and he exercised his rights of possession through Shouman and by receiving rentals from him.
 In support of his case Issa annexed two documents, designated “D” and “E”. Their authenticity is not seriously in dispute, if at all. “D” is headed “Agreement between Mr Farrog (sic) Issa and the Mafeteng Constituency Committee of the BNP regarding the exchange of sites.” The body of the document reads:
“We hereby agree on the exchange of sites between Mr. Farooq Issa who exchanges his site N0:07471-034 with the Mafeteng Constituency Committee of the BNP which exchanges the party’s site N0:07471-004 located at Mafeteng.
Mr Farooq Issa will build an office for the Party consisting of three rooms and electrify it”
The agreement was witnessed and signed by Issa and a signatory for the Constituency Committee.
 “E” is a letter on a BNP letterhead dated 8 July 1998 on which there is a stamp of “BNP Head Office” bearing the same date. The letter was written by the then Secretary-General of BNP, Mr Lekhooana Jonathan, to the Chairman, Secretary and Treasurer of the Constituency Committee. Having stated the subject matter of the letter as Site: N0: 07471-004 Mafeteng, it reads:
“I have received your letter that you have signed on behalf of the constituency committee in respect of a swap of the party’s site mentioned above with that of Farooq Issa which is also in Mafeteng.
The headquarters does not object and it authorizes the exchange agreed upon, subject to the conditions agreed upon.”
 According to Issa the condition that he was to build an office for BNP was replaced by an obligation on him to pay BNP M60 000 which substitute obligation was fulfilled.
 The allegations with regard to the exchange and the original and substituted conditions were supported in affidavits respectively made by Mr. Jonathan and a 1998 member of the BNP National Executive Committee, Mr Jeremia Letsie.
 It is consistent with the alleged substituted condition that the property has, from 1999 to date, been occupied not by BNP but by Issa’s tenant.
 It is also appropriate to mention at this point that Issa’s having been Ehsan Issa’s undisclosed principal was not disputed by or on behalf of the appellants either on the record or in argument. The principle is well – established that an undisclosed principal may, subsequent to the contract between his agent and the hitherto ignorant third party, disclose himself and claim performance from the third party.
 In the BNP’s opposing affidavit, deposed to by its current Secretary-General, Mr. Ranthomeng Matete, it was alleged that Issa wanted to carry on business on the property. He therefore promised to construct a building on it for the benefit of BNP and that, to quote the affidavit:
“he should be allowed after constructing the said premises to remain thereon for some five years so as to recover his expenses involved in the development of the said site. After the expiration of five years [he] refused to leave the said site hence the decision of [BNP] to take over the site as it belonged to it.”
Later in the affidavit it was said that BNP took steps to retrieve the site. It was not stated what such steps were or when they were taken.
 It was BNP’s case that in so far as the content of Issa’s annexure “D” conflicted with the version just summarised, the annexure did not reflect the true position. In addition, it was alleged that there was neither an obligation upon Issa to pay M60 000 to BNP nor any such payment.
 It was also BNP’s case that neither any agreement between Issa and the Constituency Committee nor a transfer of the property to Issa was ever sanctioned or agreed to by BNP or the National Executive. This was stated in a supporting affidavit by the President of BNP.
 Finally, and this was the point which received the most prominence in the advancement of the appellants’ case on the papers (and before us), the alleged exchange of sites was invalid for want of Ministerial consent in the light of the provisions of sections 35 and 36 of the Land Act. Because of such invalidity the agreement between Issa and the Constituency Committee could not have been bona fide. It should be added that it was also the appellants’ argument that the lease of 2008 was invalid, having regard to the terms of section 26 of the Deeds Registry Act, 12 of 1967.
 For the purposes of the relief sought in the court below the facts central to Issa’s case were that he had effected improvements to the property; that the improvements would benefit BNP when it became registered lessee; this rendered BNP liable to compensate him; and that he was, at all relevant times preceding the litigation, in possession of the property. (He did not seek to rely on the alleged exchange.)
 The remaining question is whether Issa effected the improvements as bona fide possessor or occupier. He was at least the latter and in either event entitled to compensation for the improvements and a lien to enforce his claim: Rubin v Botha 1911 AD 568; Fletcher and Fletcher v Bulawayo Waterworks Co Ltd 1915 AD 636; Kommissaris Van Binnelandse Inkomste v Anglo American (O.F.S) Housing Co Ltd 1960 (3) SA 642 (A) at 649B-E.
 The relief sought a quo having been claimed in final form, the approach normally applicable to resolving disputes of fact on the papers is that what are dispositive are the facts alleged by the respondent and the applicant’s facts which the respondent admits. However, the respondent’s version will not prevail where it is demonstrably far-fetched, or there clearly is no genuine dispute of fact.
 The BNP version is in sharp conflict with the contents of annexures “D” and “E” to the founding affidavit, the genuineness of which has to be accepted. These documents point to the respective parties’ intention, at least initially, that title of the property would eventually become Issa’s. The fact that he was able to let the property to Shouman by October 1999 shows that the improvements had already been completed by then. If Issa was truly to be allowed only five years’ occupation after that in which to recoup his expenses, it is remarkable that BNP has not produced even the slightest measure of evidence to indicate that it took steps from 2004 onwards to require or achieve his or his tenant’s vacation of the property. There can in the circumstances be no genuine dispute that at the time the improvements were made Issa took occupation in anticipation of acquiring title to the property.
 In addition there has been no attempt by BNP to establish from Issa what the cost of the improvements was or what rental he was receiving so as to enable BNP to assert a claim to re-possession. Indeed, BNP has never addressed Issa on the subject of the property at all but has contented itself with making a demand on Shouman that he pay rental to BNP.
 I conclude that Issa effected the improvements to the property as bona fide occupier (if not bona fide possessor) and having since remained in possession is entitled to retain possession until compensated by BNP. Moreover, such possession is protected by the principles of spoliation, according to which his possession must be left undisturbed.
 It was an incident of Issa’s possession that he could let it to Shouman and recover rental for letting it. He was not despoiled of possession but his possession was wrongfully disturbed. This amounted to spoliation.
 It follows that the invalidity argument advanced on behalf of the appellants is immaterial and cannot assist them in this appeal.
 Issa was entitled to the relief granted by the High Court and the appeal is accordingly dismissed, with costs.
Judge of Appeal
I agree ____________
Judge of Appeal
I agree ____________ N.V.Hurt
Judge of Appeal
Counsel for the Appellants: Adv.K.E. Mosito KC
Counsel for the Respondent: Adv. S. Ratau
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