CIV/A/13/80 IN THE HIGH COURT OF LESOTHO In the Appeal of : MOKEKI NTHAKO Appellant v. MICHAEL MOTLAMELLE Respondent JUDGMENT Delivered by the Hon. Mr. Justice I. Isaacs on the 23rd day of April, 1981. The appellant in this case had as plaintiff sued the respondent in the Motjoka Local Court claiming certain trees which he alleged were his own and which had been cut by the respondent. He alleged that such trees had been cut on his (Plaintiff's) site. The appellant alleged that he had bought those trees from one Monethi who appellant said had inherited them from his father Lekhoe. He said, in his evidence before the Court that after he had purchased the trees from Monethi, he and Monethi went to the headman who sent them to the chief Martins, who ruled that Monethi should be accompanied by one of the family. Monethi was accompanied by his uncle Raleholi and the chief was satisfied with the sale concluded in Raleholi's presence. The appellant in his evidence also said that Monethi then surrended the site, on which the trees were to the chief. The appellant applied for this site and completed the form which was then accepted by the chief and his advisory committee. The appellant alleged that he was /2.
-2- confirmed on the site by form "C" which form he handed to the Court. He also handed in a letter by chieftainess Makopoi in which she had barred Michael, (The Respondent) from the trees but, he alleged, Michael had defied her. In cross-examination by Michael, the appellant said that Monethi was Lekhoe's heir. He admitted that he knew about Mamabetla Motlamelle who was said to be Lekhoe's first son but whose whereabouts were unknown. He admitted that he was not a subject of 'Mamanehella in whose area of jurisdiction the trees were. He said that chief Martins had authority to allocate sites. The appellant called a witness Moitheri (P.W.1). This witness said he knew the trees had been sold to appellant by Monethi. In cross-examination he said he represented chieftainess 'Mamanehella when Monethi sold the trees to the appellant. He said that Monethi was accompanied by his uncle Raleholi when he sold the trees and that Raleholi was respondent's father. Another witness called by appellant was one Majankoko (P.W.2), who said inter alia that chief Martins who had been sent by chieftainess 'Mamanehella, after a committee had investigated, confirmed appellant with form "C". In cross-examination he said he was a witness when the trees were sold. Another witness called by appellant was one Raleholi (P.W.3). Ho said that Monethi had sold the plantation in order to remove mourning cloth from his sister. In cross-examination he said that Monethi was heir to Lekhoe and that if Mamabetla was present he would be the heir. Monethi was called as a witness by the appellant. He said that appellant had purchased the trees from him for R100. /3.
-3- In cross-examination he claimed to be Lekhoe's heir. He had not known where Mamabetla was for 49 years. The respondent give evidence to the effect that the trees had been wrongly sold by Monethi. He said that as Mamabetla was absent the family had Monethi to be a caretaker. He said the family had been surprised that Monethi had sold the plantation without notifying them. He said the family had sued Monethi before this Court and that Monethi had been defeated in his absence. He was appointed as caretaker by the family. He handed in a judgment in which Monethi had been ousted as caretaker by this Court. He denied the validity of the form "C" relied on by appellant. He said in cross-examination that the Central Court had found for him and the trees. The respondent called as a witness one Thibello (D.W.1). He said Monethi was not Lekhoe's heir and he denied the validity of the form "C". He said the heir was Mamabetla who is still alive. He said Michael was caretaking the family. Another witness named Thibello was called by the respondent (D.W.2). He said Michael, the respondent was his son. And that he was appointed by the family to be caretaker. The witness said he was the head of the family. D.W.3 was 'Mamanehella who said she had authority at Mpopo's for allocating land. In cross-examination she said she was subordinate to chief Martins Masupha. It appears that the appellant as plaintiff had, prior to the case under consideration, sued the respondent for the trees and had succeeded in the Local Court but on appeal to the Motjoka Central Court by Michael the appeal had succeeded and the judgment of the lower court had been altered to "absolution from the instance," the Central Court had held /4.
-4- that the plaintiff had not led sufficient evidence to prove his case. In the present case the Local Court gave judgment in favour of the plaintiff, the present appellant. In its judgment the Local Court found that- (1) Monethi was the heir of Lekhoe's estate. (2) There was no evidence that Mamabetla was still alive. (3) Monethi had sold the plantation in order that he could fulfil his obligation in the family by removing the mourning cloth of Lekhoe's daughter. The present respondent appealled to the Central Court which dismissed his appeal. He then appealled to the Judicial Commissioner. The Judicial Commissioner found that Monethi was not the owner of the plantation but he was the administrator for the estate and was required by Sesotho Law to have a prior consent of the paternal uncles and other relatives etitled by customary law to be consulted. The Judicial Commissioner gave leave to the plaintiff, the present appellant, to appeal to this Court on the question whether the sale could be held to be valid or not. In the grounds of appeal before this Court it is contended inter alia that "In as much as the Court believed that respondent was not heir to be estate of the late Lekhoe Motlamelle there was no valid reason in law why he had a claim against the appellant." It is also contended "there is no proof that the seller of the plantation had no right to sell." There are other grounds of appeal which I shall consider later in this judgment together with the submissions made by counsel for the appellant. /5.
-5- There seems to be nothing on the record to show that, as a result of the sale, the appellant had ever obtained delivery of the plantation except that by aquiring form "C" he obtained a right of occupation of the land. This form was given about 3 years ago but there is no evidence to show that appellant had ever occupied the site. A seller of property is not bound to give ownership. It is sufficient if he gives undisturbed possession. Thus there is nothing to prevent a person from selling another's property. (gp. Theron v. du Plessis and Schoombie 14 S.C. 192). But before a person obtains ownership he cannot sue a third party who is in possession of the property for delivery. It seems to me the proper remedy of the appellant would have been either to claim from the seller proper undisturbed possession or alternatively return of the purchase price and damages or (on the assumption that he had a valid form "C") claim from the respondent possession of the site which would have given him control of the plantation. The question of whether appellant had a title to sue the respondent on the particular claim decided on by the Local Court does not seem to have had considered by any of the Courts. Mr. Maqutu who appeared for the appellant contended that the mere possession of form "C" gave him right to sue for the trees even though they appear to have been cut down by the respondent. There was a dispute as to the validity of the issue of form "C" but on the view I take of this appeal if is not necessary for me to decide on its validity. The question may also arise as to whether section 13 of the land Act of 1973. (Which, though repealled by Act 17 of 1979, was still in force at that time) has been complied with, but I am not considering this. /6.
-6- I em of the view that until the appellant has been given occupation of the site he did not become owner of the trees whether or not they were cut. He has not, in my view received delivery so that ownership has not passed to him. He would not, therefore, in my view have a vindicatory claim and could not therefore claim delivery from anybody except the seller. But I shall also consider this question in the same way as it has been considered by all the lower courts, that is, whether Monethi was the valed heir to the estate of his father Lekhoe. One of the grounds of the appeal was that it was not proper for the Court to rule that the site could be sold separate from and excluding the improvements on the site since sites were not sold in Lesotho. I do not think that the judgment of the Judicial Commissioner suggested that sites could be so sold. Counsel for the respondent did not dispute this fact. Land in Lesotho is the property of the State and it is only the improvements which can become private property. The main ground of appeal and the main argument of counsel for the appellant was that Monethi was proved to be the heir of Lekhoe end could therefore validly give ownership to the appellant. The Judicial Commissioner came to the conclusion on the evidence that Monethi was not the owner of the plantation but he was the administrator of the estate and that he could not sell without the consent of various relatives. The Local Court came to the conclusions that there was no evidence that Mamabetla was still alive after 40 years but /7.
-7- in my view this was a misdirection as the question should have been whether he was proved to be deceased. This was contended by counsel for the respondent, Mr. Sello, and in my view he was correct. There has not been any application to any Court to have Mamabetla declared to be deceased. Mr. Maqutu contended that Monethi had acquired the inheritance by acquisitive prescription as he had been in possession for over 40 years. But to acquire ownership by prescription the possession must be Nec vi nec clam nec precerio (gp. Bisshop v. Stafford 1974(3) S.A. 1 (A.D.). The evidence shows that Monethi was put in possession by the family as a caretaker. There was a judgment in the Local Court to that effect (Ex. "C" in the record). Thus his possession was by consent and in my view precario. It was contended by counsel for the appellant that such a judgment was not binding against appellant as he was not a party. This is correct but it is evidence that Monethi had not been the heir of Lekhoe and it seems to have been ignored by the Local Court but was correctly considered by the Judicial Commissioner. The grounds of appeal include the contention that Michael is not the heir to the estate. But the Judicial Commissioner in his judgment found that Michael was not the heir but merely the caretaker. The dispute is not whether Michael was the heir but whether Monethi had been the heir. In effect the judgment of the Judicial Commissioner means he found neither was the heir and in my view he was correct. In my view on the ground that Monethi was not proved to be the heir and thus could not validly sell the trees to appellant and also on the ground that even if such trees had /8.
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Accordingly my order is that the appeal is dismissed the appellant to pay respondent the costs of appeal and the costs incurred in all the lower courts. The judgment of the Local Court is altered to absolution from the instance in favour of the defendant. ACTING JUDGE. For Appellant : Mr. W.C.M. Maqutu For Respondent : Mr. K. Sello.