CIV/A/8/80
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
THUTO MAKARA     Appellant
v
NKARA MAKARA Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice I. Isaacs
on 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
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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
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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
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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.
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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 President
said     "Respondent (Defendant) said the disputed trees
were his and he inherited them in 1938 from Mohoma      
Plaintiff disputed these trees with him in 1965          The
Court conducted an inspection in loco but this time plaintiff
is disputing a different part    The Court went on an
inspection 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
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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 to
dismiss the appeal by ordering appellant to      cease cutting
all 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 grounds
of appeal        "The Court made a miraculous judgment
by 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
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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
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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.
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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.