CIV/A/8/80IN THE HIGH COURT OF LESOTHO In the Appeal of :THUTO MAKARA Appellantv NKARA MAKARA RespondentJUDGMENTDelivered by the Hon. Mr. Justice I. Isaacson the 22nd. day of May. 1981.This is an appeal from a judgment of the Judicial Commissioner, leave to appeal having been granted by this Court.The respondent (who I shall first, refer to as the plaintiff) sued the appellant (who I shall first refer to as the defendant) in the Pitseng Local Court. Plaintiff's claim, as set out in the record was "I am sueing Thuto for the trees from his plantation." (I must say that in Local Courts the "defendant") is referred to as the "respondent") but I shall use the term "defendant" so as not to confuse him with the respondent in this appeal).The reply by defendant was "The trees are not on plaintiff's field. They are still where they were planted." Plaintiff gave evidence as follows:- "The trees have encroached by twenty paces from the boundary of the field. At the corner they encroached by forty-two paces towards the centre of the field. There are three willow trees at the corner of the field. The field runs along the stream and the trees. The trees are on the field which I disputed with Motlokoa in/2.
-2-CC 321/69 and respondent testified for Motlokoe."In cross-examination he said that it was a long time since the trees had encroached. He said that the field formally belonged to Mohlakana and it later became Motlokoa's. It became his in 1964. In answer to the Court be said that he had disputed the plantation with Thuto in 1965. He said the judgment of the Court was that the chief should draw a boundary showing the extent of the plantation.The plaintiff called as a witness Maliso Masena (P.W.1). He said he knew the field on which the disputed trees grew. He was present when Nkara disputed the field with his father. He said these trees are in the field and extended for some distance into the field. They start from where the stream enters Hlotse upwards.In cross-examination he said that the field is not being ploughed because of the trees. He said the field belonged to Nkara's father Motlokoa. The second witness for the plaintiff was Nyentje Makara (P.W.2). He said he knew the disputed poplar trees and that they had encroached on to Nkara's field from Thuto's trees. He said he knew them because the field belonged to his family before it was allocated to Nkara and that it had trees in 1952 when it was allocated to him. In cross-examination he said that the trees formerly belonged to his grandfather Motlokoa and that Nkara acquired the field from his father Motlokoa. In answer to the Court he said a portion of the trees encroached on to Nkara's field and that Thuto's trees were in the stream. The next witness for the plaintiff was Mongale Nakeli (P.W.3). He said he knew Nkara's field at Hlotse river, Thekoane's and the trees which have encroached on to it from the west/3.
-3-and North/East up to the end of the field opposite the Masianokeng rock.In cross-examination he said the trees belonged to defendant, and the trees which have not encroached on the field were defendant's. Plaintiff handed in copies of judgments in CC 321/69 Pitseng Local Court and CC 76/70 Tsifalimali Central Court.The defendant gave evidence saying, inter alia. The trees Nkara is sueing me for are mine. I inherited them in 1938. They belong to Mokoma. They are in the Monnanyane stream below Thekoane from the rock to the confluence of Monnanyane and Hlotse. They are not in the field "In cross-examination he said that Mokoma had planted trees to the North and to the West of this field. The field does not extend as far as the stream. Respondent called a witness Motlokoa Makera (D.W.1). He said he knew Thuto's plantation and he knew Nkara's field. He said the plantation extends from above the river upwards to Lefikeng running along the field.In cross-examination he said that when he gave plaintiff the field, the plantation to the North already existed. D.W.2 Dickson Makara said that he knew Thuto's trees and that they were still where they had been planted and that he knew Nkara's field as well.In cross-examination he said the trees were not in the field. He referred to the trees on the West and on the North. He said Motlokoa's trees had not encroached on the plaintiff's field. The other defendant's witness D.W.3 Lobiane Mokonyane said that he knew the trees in dispute and that they belonged to Mokoma and that they do not extend into the field as/4.
-4-alleged. He said that in 1936 he had been permitted by Mokoma to gather some wood from his plantation end that in 1961 and in 1963 Thuto had permitted him to gather wood there. In cross-examination he said he did not know which trees plaintiff was disputing. He said he knew plaintiff's field and that there was nothing to divide the field from Thuto's undisputed plantation. D.W.4 Fusi Temele said he knew the disputed trees and their owner Mokoma who planted them. He said they belonged to Thuto and that he had permission from Thuto to gather wood for three years. In cross-examination he said that he knew plaintiff's field and that there were no trees on it. Defendant handed in certain judgments as exhibits which will be referred to. In case CC 321/69 which was between Motlokoe Makara end Nkara Makara (the plaintiff in the present case), plaintiff had complained that defendant had ploughed plaintiff's field and had joined it to his. In the judgment it is stated that in his defence defendant (Nkara) showed he had surrendered this field in 1954 and requested that he be allocated this same field. The judgment was that plaintiff had failed to prove his case. The plaintiff in that case evidently appealed to the Central Court. (CC 76/70) which dismissed the appeal.Exhibit "C". A judgment of the Tsifalimali Central Court which was evidently on appeal from a case between Thuto and Nkara (The parties in the present appeal) was on on appeal by Thuto from a judgment of the Local Court which had awarded Nkara a plantation in dispute and had ordered that the boundary be rectified. According to the judgment it was contended by Thuto that the disputed trees were not his while Nkara contended that the trees were on his field. The appeal of Thuto was upheld but Nkars was given the opportunity to start the case again./5.
-5-Exhibit "E" was a judgment in another case between Nkarp and Thuto. It was in the Pitseng Local Court. It was about the seme trees. In terms of the judgment it seems that Thuto had admitted he had no title to the trees which had encroached on Nkara's field but that he had cut away trees , belonging to his own plantation. The judgment held that the trees belonged to Nkara.In the present case, the subject of this appeal the Local Court gave judgment to plaintiff as follows:- (Respondent's Defendant) argument was that the trees were not on the plaintiff's field but there is no doubt that the trees ere on the field belonging to plaintiff. Respondent (Defendant) is by this judgment ordered to lay his hands off these trees and should concern himself with his trees from which these others extended "In the course of the judgment the Court Presidentsaid "Respondent (Defendant) said the disputed treeswere his and he inherited them in 1938 from Mohoma Plaintiff disputed these trees with him in 1965 TheCourt conducted an inspection in loco but this time plaintiffis disputing a different part The Court went on aninspection in loco on 21. 8. 71 and found that at the Masianokeng stream lies plaintiff's field a portion of which is not ploughed because it is overgrown with poplar trees which appear to be the extention of the trees across the stream so do the trees." The defendant appealed to the Tsifalimali Central Court. His main ground of appeal was "I disagree with judgment which deprived me of my plantation end awarded it to plaintiff "The Central Court dismissed the appeal. In the course of his judgment the President of that Court said. "This/6.
-6-Court after hearing the appeal by appellant went on an inspection in loco."After setting out the observations at the inspection,the President said " I therefore feel compelled todismiss the appeal by ordering appellant to cease cuttingall trees above the donga as they belong to respondent." (i.e. Plaintiff).The defendant appealed to the Judicial Commissioner who dismissed the appeal stating in his judgment inter alia "This Court is alive to the fact that the appeal is on fact. The trial Court which had an inspection in loco on 21st August, 1971 stated that the disputed trees were definitely in Plaintiff's lend and then found for the plaintiff. True it may be that the land was not formerly allocated as a tree plantation but the Courts have for a long time held that trees in the land of a person belong to him. This Court is not in a position to interfere with the finding of the trial Court." In his appeal to this Court the appellant (whom I shall now refer to as such) stated as one of his groundsof appeal "The Court made a miraculous judgmentby giving a person trees that were not alloted to him together with the field."Mr. Maqutu who appeared for the appellant contended that the evidence did not show what the boundary was between appellant field and that of respondent (whom I shall now refer to as such). He also contended that as according to Rule 19 of the Basotho Courts all evidence must be recorded and that as the inspection in loco is not recorded this was a serious irregularity.The respondent appeared in this Court in person. He/7.
-7-said that if the Court should have recorded the evidence of the inspection in loco it should be sent back to the Local Court in order that it be recorded. Mr. Maqutu said the appeal should be upheld and the judgment altered to absolution from the instance.Mr. Maqutu referred to passages in the evidence. The respondent referred also to certain passages. As will be seen from the passages referred to above, although the claim as set out seems to have been about trees encroaching on plaintiff's land, he did not claim removal of the trees and the appellant in all Courts contended the trees to be his while the respondent contended that the land on which the trees were planted was land allocated to him. (Of course no individual in Lesotho can claim to be owner of land. He merely owns all improvements on land which has been legally allotted to him). The judgments in all Courts awards the trees to the respondent. I do not think that in the Local Courts the pleadings (such as they are) should be scrutinised technically. It seems to be clear from the evidence and the judgments in cases previously between the same parties and in this Court that the real dispute between the parties is about the ground on which the trees ore rooted. I do not think that the respondent should be non-suited because his claim was not set out for the true relief he wanted. Even in High Courts pleadings are not always closely scrutinised. As was said by De Villiers J.A. in the case of Shill v. Milner 1937 A.D. 101 (at page 105) "Pleadings are made for the Court, not the Court for pleadings." In the grounds of appeal of appellant in all Courts, the trees are claimed as belonging to him because, as he claims, the land on which they were planted, is part of the lend of his allotment. There is no doubt the trees were planted by an ancestor of/8.
-8-both parties. Land has been allocated to each party. The land of the parties is odjecent and it seems the real dispute is where the boundary is between them. There is little doubt but that the Local Court decided the matter on the pointing out at the inspection in loco and the Central Court likewise held an inspection. I do not think that the irregularity, (if it were one) of the inspection in loco not being recorded on the record of evidence could have prejudiced the appellant in any way. One of appellant's grounds of appeal to the Central Court (Page 17 of the record) (ground 3) shows that the appellant was present at the inspection and knew what had happened at it.In my view it would not serve any useful purpose to send the matter back to the Local Court. The cose was heard there in 1971, ton years ago. It is doubtful whether the same personel who heard the case would still be available.Counsel for the appellant in his heeds of argument and in his submissions before this Court has pointed out portions of the evidence in support of his contention that the appeal should succeed. In my opinion, however, I am of the same view as the Judicial Commissioner had when he said "This Court is not in a position to interfere with the finding of the Trial Court."It seems to me that when two Courts (The Local Court and Central Court) have come to the conclusion after both held inspections in loco that the trees in dispute are on land allocated to the respondent and that the trees belong to respondent I cannot see how I can come to any different conclusion./9.
-9-The appeal is dismissed, the appellant to pay respondent such costs of appeal as he has incurred.ACTING JUDGE.For Appellant - Mr. W.C.M. Maqutu For Respondent - In Person.