CIV/A/17/81 IN THE HIGH COURT
OF LESOTHO

In the Appeal of :

'Mampoi Letsoela - 1st Appellant Ralipoli
Letsoela - 2nd Appellant

v Paulosi Letsoele - Respondent

JUDGMENT

Delivered
by the Hon. Acting Judge Mr. Justice J.L. Kheola on the 2nd day of
September. 1983

The respondent in this case sued the appellants before
the Resident Magistrate for the district of Berea. He asked the Court
to make
an order in the following terms:-

1. 
   A declaration that the poplar tree plantation
   situated
   at Khomokhoana River belongs to him.

   
   

2. 
   An interdict restraining the defendants from
   cutting
   and removing any trees from the said
   plantation.

   
   

3. 
   An order for payment of damages in the sum
   of
   R1,000,00.

   
   

4. Costs
   of suit.

   
   

/(e)
Alternative...

-2-(e) Alternative relief.

The Court below entered judgment in favour of the
respondent. It is against that judgment that the appellants have
appealed to this
Court. Three grounds of appeal advanced by the
appellants were that:-

5. 
   The Court erred in believing the respondent
   and his
   witnesses when their evidence was
   clearly false and
   contradictory.

   
   

6. 
   The Court erred in disregarding the fact that
   all
   but one of the respondent's witnesses were
   his close relatives.

   
   

7. 
   The Court erred in disregarding the fact
   that
   respondent said he had ten plantations while
   p.w.2 Isdora
   said he had five.

   
   

Mr. Maqutu appeared for the appellants in this
Court and challenged the findings of the Court a quo on the
demeanour of the respondent and his witnesses. In his Reasons for
Judgment dated 16th May, 1980 the learned Resident Magistrate
merely
said he studied the demeanour of the witnesses but made no specific
or definite comments on witnesses on either side. The
matter was
referred back to the Court a quo and asked to make a statement
in terms of Rule 3(1) of Order No. XXIX of the Subordinate
Courts Proclamation.

Before I come to what the Court a quo said in the
statement dated 11th December 1981 I must first of all state the law
where the trial Court has made no

comment
on the demeanour of the witnesses.

/In S. v Gokoal ...

-3-

In S. v Gokoal 1965(3) S.A.
461 at p. 482. Harcourt, J is quoted as having said:

"The proper, and fairest,
approach thus seems to me to be to conclude that, where the
magistrate makes no comment, there was
nothing which was, in his
view, remarkable about the demeanour of the witnesses in question; it
was neither remarkably good nor remarkably
bad. It should thus not
be regarded as a factor tipping the balance either way in evaluating
the evidence as it appears in the record."

I respectfully agree with the
learned judge on this point because in my experience as a judicial
officer I have often made no comment
on the demeanour of the
witnesses who appear before me. Take a person who has lived all his
life in the rural areas and who has never
been in a courtroom, the
atmosphere in the courtroom often affects such a person to such an
extent that he or she becomes disconcerted,
scared or hesitant in
answering questions. On the other hand a criminal who has been in
Court several times may appear to be very
cool and confident. It is,
therefore, clear that in some cases demeanour may be a misleading
factor and the Trial Court may decide
not to make any comment. In
such a case the Appeal Court must confine itself to the evidence as
it appears in the record.

In the present case the Appeal
Court decided to refer the matter back to the learned magistrate to
make specific findings of fact.
In his statement in terms

-4-

of Rule 3(1) he commented
that "he saw Lefokisi Letsoela (p.w. 4) give evidence and he
formed the opinion that he was a truthful witness."
As regards
p.w.2 and p.w.5 he said, "I was impressed by their demeanour as
well as that of an independent witness Mosala Khoetla
(p.w. 3)."
Mr. Maqutu contended that the Court a quo made no
specific observations on the demeanour, personality or appearance of
the witnesses. He said the finding is too general and
vague. I do
not agree with this criticism because it is a common practice to say
"the witness impressed me as a truthful witness."
This is
taken as a sufficient comment which a judicial officer can make
concerning the demeanour of witnesses who appeared before
him. In
Rex v Mahlomola and Kabi 'mofu Ramokoena, 1974-1975 L.L.R. 440 at
p. 446 WHERE Cotran, A.C.J. (as he then was) said "They have
otherwise impressed me as truthful witnesses." This was a full
comment
on the demeanor of the witnesses in question.

The next question I wish to
consider is the circumstance under which the Court of Appeal may be
justified to set aside the judgment
of the trial Court. I think the
law was correctly stated in Powell and wife vs Streatham
Manor Nursing Home (1935) A.C. at p. 249 where Lord Sankey is
quoted as hiving said :

"It is perfectly true that
an appeal is by way of re-hearing, but it must not be forgotten that
the Court of Appeal does not
re-hear the witnesses.

It only reads the evidence and
re-hears the

Counsel. Neither is it a
re-seeing Court. On

/an appeal ...

-5-

an appeal against judgment of a
judge sitting alone the Court of Appeal will not set aside the
judgment unless the appellant satisfies
the Court that the judge was
wrong and that his decision ought to have been the other way. Where
there have been a conflict of evidence
the Court of Appeal will have
special regard to the fact that the judge saw the witnesses."

In the present case Mr.
Maqutu cross-examined
the respondent and his witnesses at such great length that the
learned Resident Magistrate had a full opportunity
of
seeing, hearing and appraising the witnesses. He found
that on a balance of probabilities respondent had
proved ownership of the tree plantation in question. The
respondent testified that he inherited five tree plantations when his
mother died and that the plantation which forms the subject
matter of
this dispute was one of
them. He says that when he was still young his mother
was already using the disputed plantation. During the period 1948 to
1971 he used this plantation openly
and none of the defendants ever complained. During
that period he sold or made gifts of trees from the
plantation to many people. It was only in May, 1971 when
defendants and other people numbering about seventy cut all the trees
in the plantation, the stumps which were counted after
the
destruction of the forest numbered 7,463.

The location and identity of the
plantation was well established by respondent - "it is on the
left side of the path, on the
western side of the path as you go

/to Molapo's ...

-6-

to Molapo's. It runs downwards
along the land of one Mosiuoa Pitso but it used to belong to Machahe
Pitso before. It passes the
land of one Mpao Tlhoriso. It was once
used by Maria Lucia Tlhoriso". The evidence of respondent was
corroborated by p.w.2
Isdora Letsoela, p.w.4 Lefokisi Letsoela, p.w.5
Pele Letsoela and p.w.7 Apile Pitso. From my reading of the evidence
as it appears
in the record there is no indication that any of the
witnesses who gave evidence in this case could have been referring to
a different
plantation other than the one that was cut down in May,
1971. I reject the suggestion that any of the witnesses could have
been
testifying on a different plantation; therefore, there was no
need for respondent to ask the Court to conduct an inspection in
loco. For this reason, I do not agree with Mr. Maqutu that by
awarding the plantation to respondent the Court a quo has
given him a blank cheque to claim all the plantations of defendant 1
in the Khomokhoana valley. The plantation in dispute is
perfectly
identifiable and can never be confused with any other forest in that
valley. All the parties know the plantation very well
and the fact
that all the trees in it had been cut by a crowd of people and that
the operation lasted three days makes it quite understandable
why the
witnesses could not be mistaken about the identity and location of
the plantation in dispute.

Mr. Maqutu has argued
before this Court that a proper reading of the evidence in the record
will show

that respondent lied on a number
of points and ought

/not to have ...

-7-

not to have been believed by the
Court a quo. He says respondent told the Court that he could
not understand English; but at some stage he was seen answering
questions before
the interpreter had interpreted them. During the
break he was seen being used as an interpreter by Mr. Karim.
In my opinion it is not correct to brand respondent a liar for
declaring that he did not understand English. I have often seen
many
policemen who appear before me to give evidence in Court refusing to
speak English. The main reason for doing this is that they
do not
like to commit themselves and then be compelled to give their
evidence in a foreign language. It simply means that their
knowledge
of the foreign language is very limited. Respondent may have had a
little knowledge of English but not sufficient to dispense
with the
need of an interpreter.

It is also argued that
respondent lied when he said his scotch cart and planter were
captured. The question put to him by Mr. Maqutu reads: "What
things of yours were captured then?" It was in answer to
this question that he said scotch cart and planter. He goes on to say
that there had been no judgment
against him when these things were
taken. The evidence of the respondent must be understood in the
light of the prevailing state
of affairs at the time - there was a
state of emergency and some people took advantage of this and
allegedly took other people's
property for no apparent reasons.
Respondent had just seen a mob completely cut down the entire
plantation he had been

/using ...

-8-

using for more than twenty years. In my opinion it is
incorrect to say respondent lied when he said the scotch cart and
planter were
captured because:

8. the
   word "capture" was used by the cross-examiner;

   
   

9. 
   respondent did not recognize the judgment or
   order
   as valid. He says they were taken for
   nothing. It is the
   validity of those judgments
   that he was challenging.

   
   

I now come to the other point raised by Mr. Maqutu in
this Court, that there are contradictions in the evidence of
respondent and his witnesses as to the number of plantations he
(respondent)
owns. The learned Resident Magistrate correctly held
that the evidence as to other plantations owned by the respondent was
irrelevant.
It seems to me that the confusion was caused by the fact
that some plantations had grown into each other and formed one
plantation.
I do not think that it matters that one witness says
respondent has seven plantations, while another one says he has ten
or five
because each witness is expressing his or her knowledge. He
or she is under no obligation to know all the plantations of the
respondent,
and it would be illogical to say that these
contradictions should be taken into account as a factor which weakens
respondent's case.
We are here concerned with only one plantation
and the evidence of the witness should be challenged only on that
plantation unless
it can be shown that the challenge is merely
intended to discredit the witness.

/In this ...

-9-

In this case I do not see how
that could be done because the criticism is not that the witness is
contradicting himself in his own
evidence.

Mr. Sello who appeared
for the respondent in this Court argued that the biggest hurdle in
the way of the appellant's claim was the fact that
the respondent
had, at all material times, exclusive use of the plantation in
dispute. They explained it on the grounds that the
respondent used it
in his capacity as 1st appellant's "bugle". I find this
explanation to be completely untenable. For
about 23 years respondent
had been using this plantation for his own benefit but 1st appellant
never complained. Moreover, during
that same period 1st appellant
never used the plantation for her own benefit. I find it
unconvincing that a person who claims to
be the owner of property had
not used it for such a long time. In law a "bugle" can
only do what he has been told to do
by his chief and has no authority
to use his chief's property for his own benefit. In other words,
respondent could only sell the
trees from this plantation if he had
specific instructions from the 1st appellant. In my view, the 1st
Appellant did not complain
when respondent used the plantation from
1948 to 1971 because she did not regard it as her property. I should
not be understood
to mean that by exclusive use of the plantation
respondent would acquire ownership without proof of allocation by
proper authority.
What I mean is that 1st Appellant is estopped from
claiming ownership of this plantation because for more than twenty
years she never
complained when respondent

/used
...

-10-

used it for his own benefit.
Respondent's claim of ownership is based on inheritance.

Before I leave this aspect of
the case (inheritance), I think it will be convenient to comment on
the fact that respondent's key witnesses
were his close relatives.
The inheritance of family property is a family matter and must
inevitably involve members of the family
who shall decide how the
property shall be distributed. For this reason I find nothing wrong
with their evidence. The Court a quo has indicated that it
approached their evidence cautiously as quired by the law, and I find
nothing in the record to show that this
was not the case.

Mr. Maqutu had to concede
that the manner in which the plantation was completely cut down
leaves much to be desired; nevertheless, he said it
only showed anger
on the part of the 1st Appellant. I must reject outright the
contention that the plundering of the plantation
by the respondents
was only a sign of anger. On the day of the destruction of the
plantation 1st Appellant invited about seventy
villagers (in her plea
1st Appellant put the number at fifty, in her evidence she gave about
ten) to go to the plantation and cut
down all the trees in it. It
took the villagers three days to complete their work, and there is
evidence that women were ululating
(Lilietsa), uttering threatening
words, such as, "Ea boi a cheche" (he who is a coward must
retreat) and 2nd appellant
was carrying a gun (he

denied this). I find it very
strange that a person who

/claims
...

-11-

claims to be the true owner of a
plantation would behave like 1st Appellant. One would expect 1st
Appellant, if she were the owner
of the plantation as she claims to
be, to have instituted interdict proceedings in a Court of law as
soon as she discovered that
the respondent was using her plantation.
In the nature of things, 1st Appellant had to mitigate her loss by
asking the Courts of
law to grant an interdict against the
respondent. Instead, she authorized the villagers to cut down the
entire plantation.

In her evidence 1st Appellant
said she was sharing the trees with the people who did the cutting on
50 to 50 basis; but she says she
does not know how many people did
the cutting. She has called none of those people who did the cutting
to come and tell the Court
that they took half of the trees they had
cut to the home of 1st Appellant. All these factors point to one
thing: 1st Appellant
is not the owner of the plantation and made a
free gift to all the villagers. I think the Court a quo was
perfectly justified to disbelieve the appellants on the question of
the ownership of the plantation in question.

I was referred to the case of
Mothea v Mothea, 1974-1975 L.L.R. at p. 191. The respondent
has based his claim on inheritance and has called witnesses who have
confirmed that
he inherited the plantation in dispute. I have already
dealt with the question of the identity and location of the
plantation in
dispute and found that there was no mistaken identity
by any witness. I need not say anything more on this aspect of the
case.
I

/do not

-12-

do not think that the respondent
abandoned inheritance as a source of his ownership and based it on
something else. It was never
suggested that exclusive use of the
plantation for a very long time without any complaint from 1st
Appellant, was relied upon as
a source of ownership; it was meant to
show that after the plantation was inherited in 1948 the respondent
has had exclusive use
without any complaint from the appellants,

Mr Maqutu has shown what
he calls contradictions in the evidence of p.w.4 Lefokisi Letsoela.
At page 50 of the record this witness makes it
quite clear that
before Potfol (respondent's father) died he had already given
respondent three plantations which have now grown
into each other to
form one plantation. When his mother died respondent inherited the
plantation now in dispute. I understand this
to mean that originally
respondent had three plantations Riven to him by his father during
the latter's lifetime. When his mother
died respondent inherited the
plantation now in dispute. Supposing p.w.4 is wrong to say the other
three plantations were a gift
and not an inheritance as respondent
alleges, shall we reject his evidence that the plantation in dispute
was the only one respondent inherited simply because his
evidence contradicts that of respondent on how the other plantations
were acquired by respondent?
I agree with the finding of the Court a
quo that evidence of how respondent acquired other plantations is
irrelevant.

It was also argued that the
Court a quo misdirected

itself when it said the quantum
of damages was not

/challenged ...

-13-

challenged. The fresh stumps
were counted by respondent's son and he found that 7,463 trees had
been cut and the learned Resident
Magistrate who saw him give
evidence believed him and no grounds have been advanced to show that
he was wrong. The cutting of this
plantation by people numbering
about seventy lasted three days and this by itself proves that the
plantation must have been a very
large one. It is also true that the
trees could not be of the same size, they included twigs as well, but
it must be borne in mind
that this was a "free gift for all",
and not many people would decide to collect twigs when free firewood
was made available
to them. I do not think that sufficient reasons
exist for holding the damages to be excessive.

The appeal is dismissed with
costs to the respondent.

J.L. KHEOLA ACTING JUDGE

2nd September, 1983

For the Appellant Mr. Maqutu
For the Respondent Mr. Sello