In considering instant appeal, Court observed that in application proceedings, (a) it is irregular to cite unnecessary parties - costs of service upon such parties should be disallowed as mark of disapproval; (b) it is a salutary practice to ensure that every application to court should bear a its own case reference number even if such application is of an interlocutory nature, (c) interim orders granted must be timeously confirmed, discharged, or extended, if not, they lapse - record of each such matter should indicate clearly whether interim order is extant;
Appellant appealing against dismissal of application to High Court where court upheld special plea that matter pending in magistrate’s court; Facts of case generally unclear and judge failing to set out in detail the particular respects in which matter in High Court is same as matter in magistrate’s court;
Several preliminary objections having been raised, including lis pendens and absence of jurisdiction, judge erring in finding lis pendens properly raised and failing to deal with objection to jurisdiction which could have been dispositive of the matter in magistrate court -failure amounting to improper exercise of discretion;
Appeal upheld - danger of lower court deciding matter on one only of several preliminary highlighted - remittal of matter where decision thereon is set aside inevitable;
On costs- order of costs on attorney and client scale not justified and set aside on appeal
IN THE COURT OF APPEAL OF LESOTHO
C of A (CIV) No. 23/2020
HELD AT MASERU
In the matter between
MAQACHA KHOALI APPELLANT
HIS WORSHIP MR SELEBELENG 1ST RESPONDENT
TIISETSO LEMPE 2ND RESPONDENT
VUSI LEMPE 3RD RESPONDENT CLERK OF COURT MOKHOTLONG MAGISTRATE COURT 4TH RESPONDENT
COMMISSIONER OF POLICE 5TH RESPONDENT
O/C MAPHOLANENG POLICE STATION 6TH RESPONDENT
MINISTER OF JUSTICE 7TH RESPONDENT
ATTORNEY GENERAL 8TH RESPONDENT
CORAM: P T DAMASEB AJA
M H CHINHENGO AJA
N T MTSHIYA AJA
Heard: 22 October 2020
Delivered: 30 October 2020
CHINHENGO AJA :-
“3. The 2nd and 3rd respondents are interdicted, prohibited and restrained from:
3.1.1 Damaging, entering, occupying, taking control or being in possession of the property occupied by the applicant as contemplated in the interim order of Mokhotlong Magistrate Court dated 19th October 2012;
3.1.2 Demanding top up of the purchase price for the landed property in issue, threatening, threatening to assault, intimidating, by way of violent action or otherwise instigating others to assault, threaten or intimidate any of the applicant’s staff, customers workmen, contractors and/or representatives;
3.1.3 It is ordered that the applicant be restored ante omnia to the occupation of the place pending finalisation of this Honourable Court.
4. The Magistrate for the District of Mokhotlong [Mr Selebeleng] and her clerk of court are ordered to dispatch the record of proceedings in CC48/2012 to this Honourable Court seven days after service of this application and/or order.
5. An orderreviewing and setting aside the proceedings in CC 48/2012) as irregular and of no legal effect.”
“1. The court a quo erred in dismissing the appellant [applicant]’s application upon holding the lis alibi pendens point in limine instead of allowing for a stay of the later order of the 6th April 2018 pending the final determination of the matter that remains seized with the Mokhotlong Magistrate Court particularly in view of the operative order of the 19th October 2012.
2. The court a quo erred with regard to the basis and context within which it determined the scope of lis pendens as a point of law.
3. The court a quo erred in holding that the procedure by which the matter was instituted was incorrect and that the case ought to have been dismissed on that basis.
4. The court a quo erred in dismissing the application on the ground of lis pendens only without pronouncing itself on the point of jurisdiction which had been argued extensively.
5. The court a quo erred in failing to pronounce itself of [on] the final nature and effect of the order of 6th April 2018, which had been granted by the court that was obviously functus officio and which indirectly reviewed the order of 19th October 2012.
6. The court a quo erred in awarding costs to the 1st and 2nd respondents on an attorney and own client scale.”
Unnecessary citation of parties
Unsatisfactory handling of matter and delay in delivering justice
Litigation preceding High Court application
First and main application - Case No. CC 48/2012
“IT IS ORDERED THAT:
“That a rule nisi be issued returnable on the 25th October 2012 at 9:30 am or so soon thereafter as the matter may be heard for an order in the following terms calling upon the respondents to show cause, if any, why the following shall not be made a final order:
1.(a) The periods and modes of service be dispensed with on account of urgency of this matter.
(b) First and Second Respondents should not forthwith be restrained and interdicted from taking control of Applicant’s business premises and/or site situate at unnumbered plot at Mapholaneng pending finalization of this matter.
(c) Interdicting 1st and 2nd Respondents from holding themselves out as owners of the field and or immovable property adjacent to the field of Tlaka Motate at Mapholeneng.
2. Granting applicant further and/or alternative relief.
3. Costs in the event of opposition.
4. That prayers 1(a) and (b) operate with immediate effect as the interim order pending the final determination of this Application.”
Second application – May 2014
“(a) Respondent and/or persons authorised by her shall not be interdicted from working and/or making any developments on an unnumbered plot situated at Mapholaneng which belonged to the late Jan Lempe (Plot No. 45244-040) pending the outcome hereof.”
Third application - April 2018
(a) Respondent shall not be interdicted from carrying on any business on an unnumbered site situated at Maphalaneng which belongs to the late Jan Lempe pending the outcome [hereof].
(b) Respondent shall not be directed to remove all temporary structure(s) she erected on the site herein concerned pending the outcome of the main application in CC: 48/12 which is pending before this honourable court.
Order of High court to produce record in magistrate court
1.The Magistrate for the district of Mokholong [Mr. Selebeleng] and/or his clerk dispatch the record of proceedings in CC 48/12 to this Honourable Court within 7 days of receipt of this order.
2. The proceedings in Mokholong under CC 48/12 are stayed pending finalization hereof.”
Requisites for plea of lis pendens
“If an action is already pending between the parties and the plaintiff brings another action against the same defendant on the same cause of action and in respect of the same subject matter, whether in the same or in a different court, it is open to the defendant to take the objection of lis pendens, that is, that another action respecting the identical subject matter has already been instituted, whereupon the court in its discretion may stay the second action pending the decision of the first.”
Issue between the parties in magistrate court and High Court
“The purpose of this application is to recognize and protect my rights of occupation in respect of the property described as Plot No. 45244-040, Mapholaneng, against invasion by the 2nd and 3rd respondents. In addition, I seek interdictory protection against further unlawful conduct and acts of violence by the 2nd and 3rd respondents or their supporters who have denied me ownership and access to my premises and threatened further interference and physical violence against persons associated with me and my property.”
“The place in issue was subsequent to the order of this Honourable Court dated 19 October 2012 surveyed as fully shown on Plot No 45244-040… their [2nd and 3rd respondents] late father allocated me the place in issue in terms of the deed of sale dated 27th January 2011. It has the seal of the chief stamp.”
“For the record, the only available pleadings in this case are the exchanged affidavits attached above such that this Court is at liberty to decide this matter without dispatch of the record which may take long to be dispatched given the compromised position of the Clerk of Court. The issue here is a narrow one of jurisdiction and I have rightly taken it on review.”
Preliminary issues and contentions in High Court
“the present matter [arising from the interim order of 6 April 2018] relates to land which had not been occupied all along and which the Applicant occupied during Easter Holidays of this year against an order of Court which had interdicted him (sic) from occupying or making developments on the said land pending the outcome of the matter in the court a quo. Applicant violated this order by erecting a caravan on the said land hence the proceedings herein concerned. Applicant has failed to disclose this material aspect and is guilty of material non-disclosure.”
“… The recent order [that of 6April 2018] does not invalidate the October 2012 order. Neither does it invalidate [the] May 2014order. All that it does is to maintain [the] status quo pending the outcome of the main application in CC:48/12 as the court is yet to determine the rights of the parties in the site. This order does not amount to a review of the earlier order/orders.”
Approach of High Court
“ To the applicant’s founding affidavit, the respondent have raised the following points in limine, viz,
(a) Lis pendens
(c) cause of action
(d) presence of alternative relief.
 Because of the view I take of this matter, only lis pendens will be considered. It is common cause that the application with similar prayers to the current one is pending before the Mokhotlong Magistrate Court.”
While the main matter of interdict is still pending judgment, as already said, it cannot be fair or convenient for this court and to the parties to deal with essentially the same issues which are pending decision in the court a quo. In respect of ex parte interdict application, it will be observed that the applicant is seeking its review when it is still pending closure of pleadings and argument. This court, in respect of both these mattershas not been shown the existence of “just and equitable” considerations justifying it to become seized with this matter while CC48/2012 in the main and ex parte interdict application are still pending judgment and argument respectively before the court a quo. In the exercise of my discretion therefore, this application ought to be dismissed on the basis of these reasons.”
“The matter where applicant seeks to interdict 2nd and 3rd respondents in dealing with the site subject-matter herein is still pending in the Mokhotlong Magistrate’s Court in CC:48/12. That matter has been argued and is still pending judgment. Applicant is now duplicating the said matter by seeking interdict once again before this Honourable Court.”
“The said objection is not valid as the Order objected torelates to events that occurred during Easter holidays of the year 2018 and has nothing to do with the Order obtained by Applicant in 2012. In addition, the 2012 Order did not confer any rights on Applicant. All it did was to interdict us from interfering with the land herein concerned pending the determination of the rights of parties thereto. Whereas I note the attached affidavits to applicant’s papers, I deny that the Applicant has rightly taken a review. She has already filed these papers in the court a quo. She is therefore estopped from stopping and having the said proceedings reviewed.”
ACTING JUSTICE OF APPEAL
DR P MUSONDA
FOR APPELLANT: ADV C J LEPHUTHING
FOR RESPONDENTS: ADV J T MOLEFI
Para 10 answering affidavit
Para 9.1 answering affidavit
Para 7.9 answering affidavit
Para  of judgment
Para 3 answering affidavit
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