Land Court dismissing originating application as being res judicata and not dealing with prescription, when on pleadings parties made common cause that on the face of it the land in respect of which appellants now sought to be restored in present case question was different to the land in previous litigation. Land Court’s order set aside and matter remitted to that court to determine the pleas of res judicata and prescription after hearing evidence.
IN THE APPEAL COURT OF LESOTHO
HELD AT MASERU C of A (CIV) 10/2021
In the matter between:
‘MAMAHLOMOLA RANOHA AND 30 OTHERS APPELLANTS
THE MINISTER OF LOCAL
GOVERNMENT & CHIEFTAINSHIP FIRST RESPONDENT
MINISTER OF AGRICULTURE &
FOOD SECURITY SECOND RESPONDENT
THE COMMISSIONER OF POLICE THIRD RESPONDENT
O/C MABOTE CHARGE OFFICE FOURTH RESPONDENT
LAND ADMINISTRATION AUTHORITY FIFTH RESPONDENT
ATTORNEY-GENERAL SIXTH RESPONDENT
CORAM : P.T. DAMASEB, AJA
M. H. CHINHENGO, AJA AND
N MTHISYA, AJA
HEARD : 27 OCTOBER 2021
DELIVERED : 12 NOVEMBER 2021
PT DAMASEB, AJA:
Common cause facts
‘All arable lands compounded by leporo-poro stream on the west, caldon river on the north, the track from lema to the river on the east and the leubua Highway on the North,
And delineated on miscellaneous plan 04083 held in the office of the chief surveyor, Maseru, in extent 169 Hectares situated at ha Fosa in the Berea District’.
‘In return for loss of title, compensation in respect of lawful improvements made to the land so set aside shall be paid and persons with claims are invited to lodge these with the Commissioner of Lands P.O. Box 876, Maseru 100.’
‘1985 around the month of September’ they ‘were divested of their arable land by the Government through the instrumentality of armed soldiers. The said arable Lands are situated in the vicinity of the national abattoir’.
‘All arable lands that were taken by then Government of Lesotho pursuant to legal Notice No. 88 of 1983 be restored to their respective former owners i.e. the present plaintiffs, failing which each of the plaintiffs, should be compensated appropriately.’
‘It was not in dispute that in 1983 several plots of arable lands near the abattoir at Khubetsoana previously used by the Plaintiffs were removed from their lawful possession and use pursuant to the Legal Notice No. 88 of 1983.’
‘The special plea of prescription is upheld and the action is dismissed with costs’.
5.When the said fields are/or arable lands were taken the plaintiffs were neither given a fair hearing and/or any hearing at all, nor were they compensated for their said interests in the arable land.
6. As a result thereof the plaintiffs suffered loss of their said interests in the land and have never been compensated in connection therewith to date’.
(c) That the 1st and 2nd Respondents shall not be restrained from interfering the arable land at Selakhapane …
(d) That the 5th Respondent be and is hereby restrained and interdicted from doing anything in the future to cause or authorize any transfer of the property in issue to anybody …
(e) That 1st and 2nd Respondents be interdicted from holding themselves out as the authorized people to supervise ploughing of the place in issue…
(f) And or interdicting 2nd Respondent from entering into any agreements placing encumbrance upon or creating any charge, pledge, option, mortgage or any agreement and or understanding which have the effect of binding the place in issue in favour of any third party …
2. An order interdicting 1st Respondent from interfering with, disrupting or restricting in any manner whatsoever access to or from, peaceful, undisturbed and beneficial use, occupation and enjoyment of the arable land of Applicants.
3. An order declaring the compulsory acquisition of the land at Selakhapane, Berea by the 1st and 2nd Respondents as unlawful.
5. An order permanently evicting the Respondents from the place at Selakhapane.’ (Emphasis supplied).
‘seek to be restored to their land as holders of certificates of allocation for specified fields at Selakhapane area in the district of Berea…; that their rights to the land in dispute had not been extinguished upon proclamation of all arable lands [specified in the 1983 expropriation notice]; that the purported taking away of their fields was unlawful, and that the Minister of Interior had no right to [expropriate] their arable land without first being consulted in terms of the law. As couched in their claim contemplated in CIV/T/411/2001 their stated case was that in any event even if [1983 expropriation notice] could not be declared as invalid, they could not be evicted from their fields except against payment of compensation.’
‘The true state of affairs is that the fields of present Applicants were never removed from their lawful possession and use pursuant to the said Legal Notice. The circumference of the said legal Notice relates to a totally different place to which the government still retains occupation to date. This place to which a declaration of the invalidity of the SDA [1983 expropriation notice] affects is on the east of Leporo-poro stream, not Selakhapane as it is commonly known.’ (My emphasis).
‘This matter has already been decided by court of competent jurisdiction in C of A (CIV) No. 63/2013, in the matter between Attorney General v Mahlathe Majara and 40 others.
Their claim was based on the fields at Selakhapane which they allege were taken from them in 1985, that is still their claim even in this application. Therefore this matter is not rightly before this court on the basis of res judicata and/ or judgment in remand (sic) it should be dismissed on this point alone’.
‘their claim has prescribed by law. Respondents have enjoyed peaceful and undisturbed occupation and use of the disputed land herein until to date. The law provides that no action may be brought against the Government after the expiration of a period of two years from the time when the cause of action arose. As the applicants pointed out in CIV/T/411/2001, The cause of action herein arose sometime in 1985. This Honourable Court can therefore not entertain this application on the basis that it has prescribed.’
‘the land was set aside more than 30 years ago by the Government of Lesotho for its use and for the establishment of the Selakhapane abattoir.’
‘matter had been put to rest by the Court of Appeal in C of A (CIV) No. 63/2013. Applicants cannot be heard to be claiming the rights over the land after that decision. The land had been fenced by the Ministry of Agriculture and Food Security and as such, Applicants cannot allege that they had been in possession thereof. Furthermore, the applicants were lawfully disposed of the land as it was selected for public purposes.’
‘Applicants are not being candid with this Honourable Court. In CIV/T/411/2001 their claim was basically that their rights were divested from them by use of force not in respect of legal Notice No. 88 of 1983.
[I]t is important …to note that applicants’ claim in CIV/T/411/2001 was never based on legal Notice No. 88 of 1983 but rather on the use of force by Armed Forces.’ (Emphasis supplied).
‘Only the judgment of the High Court focused on Legal Notice No. 88 of 1983. The judgement of Court of Appeal is based on prescription and nothing more.
[R]egrettably applicants’ attorney misconstrued the decision of Court of Appeal in the matter. They mistakenly relied on the High Court decision and applied it to the Court of Appeal decision. This led them into believing that Court of Appeal decision is based on Legal Notice No. 88 of 1983. It is clear from Court of Appeal decision that the fact that the applicants’ cause of action emanates from action occurred in 1985, their claim could not be enforced against the Government’. (My emphasis).
The High Court
‘However, after perusal of the judgment of the Court of Appeal, in particular, paragraphs 14-15 of the judgement, I reconsidered this position and directed the parties to address the point of Res judicata only. I adopted this position because prescription had been addressed by the Court of Appeal and it formed the basis on which the Court dismissed the applicant’s claim.’
‘ The cause of action first accrued when the rights in the fields were extinguished through expropriation per the 1983 Legal Notice. This is when the plaintiffs sustained loss of Rights in this arable Land. The applicants filed the prior claim on the basis of this ‘taking’. Before this Court, they do not plead a separate act of expropriation that gives rise to the complaint before this Court. All they do is to question the extent of the expropriated Land and the effect of the Legal Notice on their rights. They do not specify as to “when” they lost the right they seek to enforce in these proceedings as a result of the respondents’ act or omission. My reading of the originating application reveals only one cause of action, the 1983 expropriation. This means their claim before this court is founded on the same cause of action as the prior action. In other words, the same matter is in dispute before this Court.
 With regards to the subject matter, the applicants aver, as stated earlier, that the prior litigation relates to land envisaged under the legal notice No. 88 of 1983, as such, the earlier decision(s) are inapplicable to the land at Selakhapane, the subject matter of dispute before this Court.It should be noted that in their declaration in the initial action, they averred at paragraph 4 that the fields are situated in the “vicinity of the national abattoir”. In casu, they claim the Land at Selakhapane.An abattoir translated into Sesotho in Selakhapane.’ (My emphasis).
Grounds of appeal
‘ The Court erroneously determined the application on the basis that there was no need to lead evidence on prescription or investigating the requirements thereof.
 The Court a quo erred I deciding this matter on the basis that a loco inspection was not necessary as a preliminary to any enquiry or investigation of the merits of the respective claims of the parties to the fields excluded by the Legal Notice No. 88 of 1983.
ACTING JUSTICE OF APPEAL
M. H. CHINHENGO
FOR APPELLANT: ADV. C.J LEPHUTHING
FOR RESPONDENTS: ADV. T. MOHLOKI
 Section 2 of the Government Proceedings and Contracts Act 4 of 1965 provides that after the expiry of two years any claim against the Crown arising out of any contract or out of any wrong committed by any servant of the Crown or of the Government shall prescribe.
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