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:-
A declaration that the poplar tree plantationsituated at Khomokhoana River belongs to him.
An interdict restraining the defendants fromcutting and removing any trees from the saidplantation.
An order for payment of damages in the sum ofR1,000,00.
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:-
The Court erred in believing the respondentand his witnesses when their evidence wasclearly false and contradictory.
The Court erred in disregarding the fact thatall but one of the respondent's witnesses werehis close relatives.
The Court erred in disregarding the fact thatrespondent said he had ten plantations whilep.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 ...
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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
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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 ...
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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 ...
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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 ...
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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 ...
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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:
the word "capture" was used by the cross-examiner;
respondent did not recognize the judgment ororder as valid. He says they were taken fornothing. It is the validity of those judgmentsthat 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 ...
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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 ...
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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 ...
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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
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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 ...
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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