Mandament Van Spolie- action for restoration before all else of unlawfully deprived possession of an object to the Possessor - Rei vindicatio is a legal action by which the applicant demands that the defendant returns a thing that belongs to the Applicant. It may be used only when the Appellant owns the thing - appellants claiming both ownership and possession- court a quo only dealing with ownership, which issue was not conclusively determined- Appellants ground of appeal relating to spoliation- Effect of non-compliance with Rule 8(19) of the High Court Rules 1981 and Rule 4(5) of the Court of Appeal Rules 2006 fatal.
IN THE APPEAL COURT OF LESOTHO
HELD AT MASERU
C OF A (CIV) NO. 36/2020
In the matter between:
MOTLATSI PELESA APPELLANT
NGAKA MOHLOUOA RESPONDENT
CORAM: DR P MUSONDA AJA
M H CHINHENGO AJA
N T MTSHIYA AJA
HEARD: 15 April 2021
DELIVERED: 14 May 2021
DR P. MUSONDA AJA
 This was an appeal against the judgment of the High Court (Banyane J.). Appellant brought an application for the Court to direct the respondent to release to the applicant a motor vehicle Toyota Hilux Registration Number RU 389, Chassis Number AHTHA3CD803414855 Engine Number IGD0187912. An interdict was also sought to restrain the respondent and or interdict him from interfering in any manner whatsoever with the Appellant’s possession of the said motor vehicle.
 This matter has a long and checkered history. Aspects of it were determined in the High Court Commercial Division, Court of Appeal, High Court and is again before us, though parties are different, but the subject matter is the same.
 The facts of this case are that the respondent’s father who is deceased, along with the other directors of Big Four (Pty) Ltd formed the company with the intention of purchasing vehicles for the sole purpose of hiring them out to the Lesotho Government.
They obtained a suitable vehicle and purchased it from Heinz Motors in South Africa. Each partner contributed an amount of M50,000 to raise the initial deposit of M200,000, the balance to be paid in installments.
 The vehicle was registered in the name of Mokibe Mohlouoa, the respondent’s deceased father. The vehicle was so registered because the respondent’s father possessed a cross border permit and was familiar with Heinz Motors. Mokibe Mohlouoa died on 30th November 2017. The other directors were informed that the respondent was to walk in his deceased father’s shoes.
 The death of the respondent’s father gave rise to disputes between respondent and his late father’s business associates over ownership of the motor vehicle. The later were successful in the High Court Commercial Division. The respondent successfully noted an appeal to this Court C of A (CIV) No. 49/18. This Court held that failure to cite the Master of the High Court pursuant to Rule 8 (19) of the High Court Rules 1980 was fatal. The effect was the parties retained their pre-High Court positions.
 The appellant commenced spoliation proceedings in the Subordinate Court. Given the Subordinate Court threshold of M200,000, the Court declined jurisdiction.
 An action, the subject of appeal was then commenced in the High Court in the following terms:
 The case of the appellant in the court a quo was that he was the lawful owner of the motor vehicle and purchased it around October 2019 at the price of three hundred thousand Maloti (M300,000). He bought the motor vehicle from Big Four (Pty) Ltd. There was documentary evidence that the vehicle was owned by the company, which document was exhibited, so was the registration certificate in his name. He was from about October 2019 in peaceful and undisturbed possession until 27th January 2020, when the respondent unlawfully despoiled him of the vehicle. The vehicle had been hired by the Government of Lesotho under the Ministry of Finance and the officials of Government failed to protect the vehicle from seizure by the respondent, which matter he reported to the police.
 At the time of instituting the application in the High Court the vehicle was in possession of the 2nd respondent, the Officer Commanding Vehicle Theft Detention and Counter Robbery and Crime Unit.
 The respondent in his answering affidavit stated that the appellant had failed to establish a cause of action by failure to allege and prove the elements of the action rei vindicatio. He did not prove that he was the bona fide purchaser. The vehicle in dispute was taken by due process of the law as it was pursuant to an Order of the Court of Appeal.
 The appellant did not come to Court with clean hands as he was biological brother of the seller. The seller did not have a single document to prove the title to the property. The vehicle was sold pending the outcome of the Court of Appeal proceedings. The appellant was never in possession of the vehicle.
 In his replying affidavit, the appellant restated that he was owner of the vehicle. He went on that the Court of Appeal never directed that the vehicle be released to the respondent or the respondent declared the owner. The appellant’s application in the High Court was not a review application as the appellant was not party to the matter in the High Court Commercial Division. The matter was between Mosito Motsamai and others and Ngaka Mohlouoa (respondent) under Cause No CA/011/18, the High Court decided that the vehicle belonged to Big Four (Pty) Ltd. The issue of ownership between the appellant and respondent has never been litigated.
 He restated that the issue of possession is not in dispute, he was claiming the vehicle as owner. If the respondent has sold the vehicle he should replace it.
Issue in court a quo
The issue that fell to be decided in the primary Court was whether the appellant had adduced evidence that clearly established ownership by his precursor and or his right to the vehicle entitling him to the reliefs sought.
 The learned Judge was of the view that one of the incidences of ownership is the exercise of possession of the res. The res should be with the owner. Chetty v Naidoo, was cited in support of that proposition. Rei vindicatio is a remedy intended to protect ownership. It can be used to claim the return of property, movable or immovable. Two main requirements must be proved by the applicant; (a) ownership of the thing, and (b) that the thing is in possession of the defendant. (see Silberberg and Schoeman’s: The Law of Property, 3rd edition, Butterworths, p274)
 The legal requirements for the transfer of ownership under section 11(2) of the Road Traffic Act of 1981 provides as follows:
on changing ownership of a motor vehicle, the registered owner shall within seven days from the date of transfer where the vehicle is registered with the registering authority in Lesotho:
 It was the learned Judge’s view that the appellant had not complied with the above section. Flowing with such a finding was that appellant had failed to establish a clear right, which would entitle the appellant to an interdict.
 Big Four Company and the 1st respondent had engaged in litigation, which the Company won in Commercial Court. There being no stay of the Judgment, the Company proceeded to register the vehicle. The sale of the vehicle to the appellant was concluded during the pendency of the hearing of the appeal, which was on 22nd October 2019. Unfortunately the Court of Appeal judgment had the effect of restoring the status quo as regards possession and registration of the vehicle.
 In absence of the Judgment holding that Big Four owned the vehicle, it meant that ownership of the vehicle between the company and the 1st respondent is still under the radar. Until the issue of ownership is determined between the two by the Commercial Court, the appellant’s right being derivative, cannot be clearly established, so also his ownership. The learned Judge dismissed the application with costs. Dissatisfied with the dismissal the appellant noted an appeal to this Court.
 The appellant filed what is characterized as two grounds of appeal, when in essence it is one ground;
 For the appellants it was argued that the foundation of his case as pleaded was actio rei vindicatio. In order to succeed, it was and is incumbent upon the claimant that ownership of the res vests in him. Goudini Chrome (Pty) Ltd. V MCC Contracts (Pty) Ltd., Concor Construction (Cape) (Pty) Ltd. V Santam Bank Ltd. Secondly the dispute still exists and that it is clearly identifiable, Sovvaag v Pettersen and Others. Thirdly, that the defendant was in possession of the thing at the time of the initiation of the proceedings, Graham v Ridley, Chetty v Naidoo.
 It was valiantly canvassed that the appellant was in possession of the vehicle until when the vehicle was taken on 27th January 2020 on the basis of an order issued by this Court and executed by the Deputy Sheriff. The court a quo ought to have held that the appellant herein had established the requisite of the actio rei vindicatio regard being had to the fact that this Court did not in any way declare the 1st respondent as the owner of the vehicle.
 It was canvassed that the court a quo imported extraneous matters into the pleadings. The issue of whether the vehicle requirements of the transfer of the vehicle the subject matter hereof was not the issue before the Court and further that the Court was not called upon to interpret the judgment of this Court in C of a (CIV) No. 49/2018. A plethora of decisions of this Court in which we have deprecated the practice of relying on issues which are not raised or pleaded by the parties to litigation were cited, Frasers (Lesotho) Ltd. V Hata-Butle (Pty) Ltd. Sekhonyana and Another v Standard Bank of Lesotho Ltd., Theko and Others v Morojele and Others, Attorney General and Others v Tekateka and Others, Mota v Motlokoa, National Olympic Committee and Others v Morolong. Had the matter been decided on the basis of the pleadings, it could have found that the appellant herein had proved his ownership of the vehicle on the basis of the registration issued by the relevant authority on the 24th October 2019, so it was argued by Advocate Setlojoane.
 The court a quo ought to have held in favour of the appellant herein on the principle expressed in the maxim qui prior est tempore, potior est jure, which translates that he who is earlier in time is stronger in law.
 Augmenting the written heads Advocate Setlojoane further argued that after the Court of Appeal judgment there was need to comply with Rule 8 (19). The question of ownership was not decided. This Court can decide the issue. The appellant does not believe the version of the respondent that the vehicle was sold. In a nutshell that was the appellant’s case.
The Respondent’s Case
 Advocate Sehapi, prefaced his heads by discussing facts which were common cause and these were:
 A question was posed whether this Court had jurisdiction to adjudicate an appeal based on actio rei vindicatio while the grounds of appeal before are based on actio mandament van spolie. Whether the appellant was the lawful owner of the vehicle the subject matter hereof.
 Although the appellants are confined to argue their case on their grounds of appeal, it is open to the respondent to support the validity of the court a quo’s decision on any other grounds. Grounds of appeal play the role of pleadings, and only one issue is to be drawn from a ground of Appeal, albeit, one issue may be extracted from more than one ground of appeal. Although appellants reserve their right to file further grounds, such grounds were never filed with adequate notice of the same, and/ or at all.
In African Bank PLC v Yelwa, the Court said:
“I must, however, observe that both the appellant’s Counsel and respondent’s Counsel guffed in their appreciation of the law, with regards to formulating issues of appeal from grounds of appeal. The operative rule is that appeals are argued on issue(s), distilled from ground(s) of appeal, which must arise from a ratio in the Judgment appeal against. And only one issue can be distilled from a single ground of appeal, though two or more grounds of appeal can combine to give rise to a single issue for determination.”
 Appellant cannot be permitted to direct the attention of the respondent to spoliation and then purport to canvass vindicatio. In CPC v Inec, the Court held:
“Any grounds of appeal which do not rise from the ratio of the Judgment appealed against cannot stand for reason of incompetence.”
In Kotove v Saraki, it was said:
“where a ground of appeal cannot be fixed and circumscribed within a particular issue in controversy in the Judgment challenged, such ground of appeal cannot justifiably be regarded as related to the decision.”
 Various recovery actions under our common law were alluded to in arguing for the respondent, e.g. actio mandament van spolie, which is restoration before all else o of unlawfully derived possession of an object to the possessor, actio rei vindicatio is a legal action by which the appellant demands that the defendant returns a thing that belongs to the appellant. It may be used only when the appellant owns the thing. Actio ad exhibendum, under this action the appellant was obliged to claim the restoration from the respondent on the restoration from the respondent on the grounds that the 2nd respondent intentionally and/ or negligently sold the res knowing that the appellant is the owner of the res and actio condition furtive, this is recovery of property from a thief.
The elements of actio rei vindicatio are that the appellant must have a clear title to the res and the respondent must be in possession of the res.
 The respondent proved and/ or established that he had since sold the vehicle. Hence delivery and/ or restoration of the same is impossible on the facts. It was never alleged let alone proved that the respondent lost possession and/ or ownership of the vehicle negligently and/ or unlawfully. Appellant could not have had peaceful and undisturbed possession of the vehicle when the same vehicle had been a subject matter of dispute in the Courts of law nor could title pass when the current appellant actually and/ or imputedly or constructively knew that the vehicle was a subject matter of litigation at the material time of the alleged sale. Appellant unlawfully opted to shut his eyes and allegedly purchased the vehicle.
 The appellant had attended the Court of Appeal proceeding in C of A NO. 49 of 2018 and the appellant is a biological brother to Mojalefa Pelesa who was a party in the initial Court of Appeal proceedings. The current appellant cannot be labeled as an innocent third party in the whole scheme of things. Appellant is also bound to fail under actio ad exhibendum and actio condition furtive because he failed to allege or let alone prove that the respondent had negligently and/ or unlawfully lost possession of the vehicle in issue. In any event, appellant had not served let alone cited the Master of the High Court, which is fatal to this appeal.
 Rule 8 (19) of the High court Rules 1980 is couched in these terms:
“When an application is made to Court, whether ex parte or otherwise, in connection with the estate of any person deceased, or alleged to be a prodigal or under legal disability, mental or otherwise, a copy of such application, must, before the application is filed with the Register, be submitted to the Master for his consideration and report. If any person is to be suggested to the Court for appointment of curator to property such suggestion shall also be submitted to the Master for consideration and report. There must be an allegation in every such application that a copy has been forwarded to the Master.”
In Mphalali v Anizmland & Others, it was held:
“This rule in providing specifically that even if application in connection with a deceased estate are brought ex parte they must still be first submitted to the Master before filing with the Registrar, leaves very little discretion with the Court to grant condonation for failure to comply. Not only that, the Master is further enjoined to consider the matter and then make a report. Such a report might lend a totally different color to the outcome of proceedings. A copy of this application must therefore have been forwarded to the Master’s territory ex parte a proceeding that is specifically not allowed by the rules.”
 Advocate Sehapi, wound his submission by asserting that the appellant was not an innocent purchaser as the title of the vehicle was being contested at the time of the sale. Failure to serve and cite the Master of the High Court is fatal to these proceedings.
 The issues arise for determination in this appeal are:
Consideration of the Appeal
 This Court stated in Maphunye Qacha and 3 Others v Hape Nthongoe,and Ngaka Mohlouoa v Mosito Motsamai & 12 Others , per Mosito P and Mtshiya AJA, respectively, that failure to comply with the Rule 8(19) is fatal. Any application which does not comply with the Rule, such an application is not properly before the High Court. Consequently, there was no proper application for determination by the High Court, the High Court should have declined jurisdiction. Accordingly on that ground alone the appeal in this case must fail.
 Advocate Setlojoane, had implored this Court, while graciously conceding the non-compliance with Rule 8 (19) to determine ownership of the vehicle. He went on that the appellant was the earlier in time and should be the stronger in law. I respectfully disagree. This is not a primary court to make determinations, which are supposed to be made by first instant courts, secondly the earlier in time was respondent’s father, such a submission is a shot in the foot.
 The grounds of appeal, was against the refusal to grant mandament van spolie while the Judgment dealt with rei vindicatio, so are the heads of argument on appeal. These are two distinct causes of action. The grounds for appeal were at variance with the decision of the court a quo. The heads fly in the teeth of Rule 4(5) of the 2006 Rules of this Court which is couched in these terms:
The appellant shall not argue or rely on grounds not set forth in the notice of appeal unless the Court grants him leave to do so. The Court in deciding the appeal may do so on any grounds whether or not set forth in the notice of appeal and whether or not relied upon by any party.
 It is apposite to clearly state and extensively quote from passages from the Zambian Supreme Court and the Kenyan Court of Appeal cases when dealing with situations where the Court has no jurisdiction. In JCN Holdings Limited v Development Bank of Zambia, the Court had his to say:
“It is clear from the Chikuta and New Plast Industries cases that if a Court has no jurisdiction to hear and determine a matter it cannot make any lawful Order or grant any remedies sought by a party to the matter.”
In more compelling terms, the Kenyan Court of Appeal in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Limited, said:
“It is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything, without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceeding…… A court of law downs tools in respect of the opinion that it is without jurisdiction…. Where the Court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing….”
 The rationale of submitting a copy of the application before filing it with the Registrar to the Master of the High Court… when the application touches on the deceased’s estate is that the Master is the administrator and therefore has an interest in the deceased’s estate and is a proper party to be cited. This will obviate asset stripping of the deceased’s estate unjustifiably. The philosophy underlying Rule 4(5) is to cast an obligation on the appellant to prosecute his or her appeal within the confines of the notice of appeal, while permitting this Court to decide the appeal on any other grounds, which may come to the fore during the hearing. An example could be the Ugandan Court of Appeal decision in Makula International Limited v His Eminence Cardinal Nsubanga & Another, it was held that:
“It is an established position of law that illegality can be raised at any time before a Court of Law and it should be investigated. A Court of law cannot sanction what is illegal and illegality once brought to the attention of Court overrides all questions of pleading, including admissions made thereon.”
 This appeal suffers the same fate for being in violation of Rule 8(19), the application before the High Court was incompetent and the appeal before this Court is not compliant with Rule 4(5) of the Court of Appeal Rules 2006.
 The appeal is dismissed, with costs.
ACTING JUSTICE OF APPEAL
M H CHINHENGO
ACTING JUSTICE OF APPEAL
ACTING JUSTICE OF APPEAL
FOR APPELLANT: ADV R SETLOJOANE
FOR RESPONDENTS: ADV F SEHAPI
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