CIV/A/2/84
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
LEHLOLA MOFOKA Appellant
and
LINEO LIHANELA Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molaion the 28tn day of August, 1986.
The Appellant and the Respondent were Plaintiff and Defendant before the Matsieng Central Court, sitting as the court of first instance, where the former claimed against the latter, for an order barring her from interfering with his chiefly rights over Ha Mokoena.
The trial court dismissed Plaintiff's claim on the ground that Ha Mokoena fell under the jurisdiction of the Defendant and not the Plaintiff who did not. therefore, have chiefly rights over that place. The Plaintiff was unhappy with the decision against which he appealed to the court of the Judicial Commissioner. The appeal was dismissed and it is against this decision that the Plaintiff has now appealed to the High Court on a long list of grounds which can, however, be summed up in that the decision was against the evidence.
In short, the evidence heard by the trial court was that Plaintiff was a gazetted chief and the Defendant (also gazetted) a headman responsible to him (Plaintiff). The Plaintiff and the Defendant lived in the villages of Ha Mofoka and Ha Lihanela, respectively. The villages of Ha Mokoena and Ha Lihanela were divided by Malehlakana stream. Ha Mokoena was on the east whilst Ha Lihanela was on the west of that stream. There was no gazetted headman at Ha Mokoena.
2/ According to
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According to the evidence adduced on his behalf Ha Mokoena had always been administered directly by the Plaintiff or his predecessors. However, in 1980 the Plaintiff was told by one 'Mamokete (who did not testify before the trial court) that the defendant was allocating arable lands and residential sites at Ha Mokoena. It was Plaintiff's contention that the aforesaid action of the defendant constituted an interference in his chiefly rights at ha Mokoena. Wherefor he instituted the present proceedings against her.
Defendant did not dispute that she had been allocating arable lands and residential sites at Ha Mokoena as alleged by the Plaintiff. She, however, contended that her action did not amount to interference in the chiefly rights of the Plaintiff for Ha Mokoena had always been administered directly by the Headman of Ha Lihanela and not the Plaintiff or his predecessors. As proof thereof defendant handed in a number of exhibits the most important of which were exhibits "1" and "10".
Exhibit "1" was a letter which, in 1967, the chief of Ha Mofoka or the predecessor of the Plaintiff had addressed to the headman of Ha Lihanela requesting the latter to send before his (Plaintiff's) administrative court two prospective litigants who were apparently living at Ha Mokoena. Likewise exhibit "10" was a letter which, in 1979. the Plaintiff himself had written to the headman of ha Lihanela advising that the people of ha Mokoena had been before him to recommend a certain 'Mamokete Mokoena as the head of the family of Mokoena. In the absence of the headman of Ha Lihanela Plaintiff said he was unable to accept the recommendation of Mamokete Mokoena as the head of the family because the people of Ha Mokoena were reportedly her (headman of Lihanela's) subjects. Wherefor, ho instructed the headman of ha Lihanela to appear before him at 10 a.m. on Saturday, 20th October, 1979, and personally recommend 'Mamokete as the head of the family of Mokoena if her recommendation were, at all, to be given proper recognition.
3/ As mentioned
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As mentioned earlier, the trial court found, on evidence, that Ha Mokoena was under the jurisdiction of the Defendant and not the Plaintiff. If,as far back as in 1967 Plaintiff's predecessors were summoning prospective litigants from Ha Mokoena through the headman of ha Lihanela and, in 1979, Plaintiff himself required the recommendation of 'Mamokete as the head of the family of Mokoena to be made through the headman of Ha Lihanela, it would appear that there was a recognition of long standing by the Plaintiff himself and his predecessors that ha Mokoena fell under the jurisdiction of the headman of Ha Lihanela. There was, therefore, nothing unreasonable in the trial court finding, as it did, that Ha Mokoena was under the direct administration of the defendant and not the Plaintiff.
That being so, it seems to me that the defendant, who is admittedly a gazetted headman, was entitled to, and could lawfully, allocate arable lands and residential sites at Ha Mokoena. Plaintiff could not, therefore, be heard to say by so doing she interferred with his chiefly rights.
In the circumstances, I come to the conclusion that Plaintiff hod, on a preponderance of probabilities, failed to establish his case against the defendant and the court a_ quo correctly upheld the decision of the central court of Matsieng.
I would, therefore, dismiss this appeal with
costs.
B.K..MOLAI
JUDGE 28th August, 1986.
For Appellant : Mr. Tsotsi, For Respondent: Mr. Moorosi.