CIV/APN/3/85 IN THE HIGH COURT OF LESOTHO
In the appeal of
MPHOLO MPHOLO Appellant
v MPHONGOA JACOBS SELIANE Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molaion the 30th day of September, 1985.
On 7th February, 1984 the Respondent (hereinafter referred to as Plaintiff) instituted before the Subordinate Court of Thaba-Tseka summons commencing action in which he sued the Appellant (hereinafter referred to as Defendant) for a claim framed in the following terms.
"(a) Ejectment and/or eviction of the
Defendant from the said portion of the site.
(b) Repair of the said fence.
ALTERNATIVELY
Payment of the sum of M400 as compensation and/or damages for the repair of the said fence.
Payment of the sum of M500 as compensation and/or damages for the occupationof the said portion of the site.
Costs of suit.
Further and/or alternative relief."
The hearing was before G.T. Jane, the magistrate who entered judgment for the Plaintiff in terms of (a) and (b) above. As alternative to (b) payment of M150-00 being damages suffered by Plaintiff and M100 as compensation for occupation of the said portion of the site by the defendant plus costs of suit. It is against this
2/ decision that
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In a nut shell the facts were that in 1968 Defendant was allocated a site at Mantsonyane. In 1977 the Plaintiff was also allocated a site adjacent to that of the Defendant.
It was common cause that both the Plaintiff and the Defendant were issued with forms C In respect of their sites. There was a dispute as to the legality of the Form C issued to the Plaintiff on the ground that it was not certain that the chief who signed the Form C had made the allocation in consultation with his land committee. Howeyer, the Form C is in my view, a prima facie evidence of allocation and it can safely be said that the site was on a balance of probabilities allocated to him.
Furthermore, it was common cause that the sites allocated to both the Plaintiff and the Defendant were for commercial/residential purpose. The Defendant neither registered nor fenced his site. At the time of allocation Plaintiff's site was, however, already fenced by the previous owner from whom he had bought it.
When Plaintiff's site was allocated to him, its measurements encroached on the site previously allocated to Defendant to the extent of 7 paces x 35 paces. Subsequent to his allocation, the Plaintiff registered his site and adjusted the fence so that it enclosed the encroached portion. He was therefore, a holder of a Title Deed in respect of the site. The Defendant afterwards removed Plaintiff's fence from the encroached portion of his site and erected his own fence.
The salient question was whether or not at the time the Plaintiff was allocated the site whose measurements encroached on the Defendant's site the encroached portion was available to the allocating authority for re-allocation. In this regard, it is perhaps useful to bear in mind the provisions of the now repealed S. 15(2) of the Land Act No. 20 of 1973 which was,however the law
3/ applicable ....
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applicable at the time the allocation was made to the Plaintiff.
The Section read
"(2) A person to whom an allocation or grant
of an interest or right in or over land -
situated in an urban area or
situated in a rural area for commercial or industrial purposes, shallcause such allocation or grant to beregistered in accordance with theprovisions of the Deeds Registry Act12 of 1967."
Now the relevant provisions of the Deeds Registry Act No. 12 of 1967 were laid down under S. 15 thereof. The section read in part
" (2) Save as is otherwise provided in the
Administration of Lands Act 1973 or any other law, every person or body holding a certificate issued by the proper authority authorising the occupation or use of the land shall within three months of the date of issue of the certificate apply to the Registrar for a registered certificate of title to occupy or use.
(3) Every person or body who prior toto the commencement of this Act wasissued with certificate by the properauthority authorising the occupationor use of landshall likewise apply tothe registrar within a period of (nine)months from the date of commencement
of this Act for a registered certificate of title to occupy or use.
(4) Failure to lodge with the registrarthe said certificate of occupation oruse for registration in terms of subsections (2) and (3) within the prescribed period or within such extendedperiod (as the Registrar may allow(and the Registrar is hereby empoweredso to allow extensions of that period)or within such period as the court mayallow) shall render the certificatenull and void and of no force and effectand the rights of occupation and useshall revert back to the owner of theland, being the Basotho Nation ...."(My underlinings)
4/ I have underscored ....
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I have underscored the word "shall" in the above cited subsections to indicate my view that as the site was allocated to Defendant for commercial use, it was mandatory for him to have it registered and failure to do so since 1968 did not only render his certificate of allocation or Form C null and void but automatically reverted his rights of occupation and use back to the Basotho nation.
That grant, it must be accepted that the question I have earlier asked, viz. whether or not at the time the Plaintiff was allocated his site the portion by which its measurements encroached on the Defendant's site was available for re-allocation must be answered in the affirmative. The Defendant could not, therefore be heard to say he still had the rights of occupation and use over the encroached portion of the site. As he had forfeited his rights over the disputed site, the Defendant was, in my opinion correctly ordered to quit. Plaintiff testified that by the action of the Defendant he had suffered damage to the tune of M400.00 calculated on the current rate of M10 per meter for erecting a new fence As only the repair of the fence and not the erection of a new fence would be involved I would not quarrrel with the amount of M150 allowed by the trial magistrate.
However, the encroached portion of the site was
undeveloped and so small that I find it difficult to see how the Plaintiff could have possibly hired it for the amount claimed as compensation for damages. I am of the opinion that Plaintiff had failed to prove any damages at all on this aspect and his claim should have been disallowed. It is so ordered.
In the premises, the appeal is dismissed in respect of (a) (b) and (d) but allowed as regards (c) of the claim.
B.K. MOLAI
JUDGE.
For Appellant Mr. Ramolibeli 30th September, 1985For Respondent Mr. Pheko.