IN THE HIGH COURT OF LESOTHO In the Appeal
PHOKA CHAOLANE' Appellant
VIKANENG MAKHOOANE Respondent
J U D G M E N T
Delivered by the Hon. Mr."Justice.B.K. Molai
on the 29th day of August. 1986.
This is an appeal against the decision of the .
subordinate,Court of Maseru in a certain CC. 352/83. The Respondent
to as Applicant) had filed with the clerk of
that Court an Ex-Parte application in which he moved for a Rule Nisi
against, the appellant
(hereinafter referred to as Respondent) framed
in the following terms:
"(a) Directing the Respondent forthwith to restore
to applicant the following movables :
1 filing cabinet,
1 duplicating machine,
1 queen stove,
a quantity of stationery and 5 chairs which
Respondent has unlawfully dispossessed
applicant of ;
(b) Directing Respondent to pay the costs ofthis
(6) Calling on Respondent to show cause, if any,
on the 29th day of March, 1983, in the for/afternoon
why the rule nisi shall not be made absolute."
After judgment by default and rescision thereof had been
entered on several occasions the matter finally came for argument
trial magistrate ordered that viva voce evidence of
all the people who had filed affidavits should be led. The evidence
disclosed by the affidavits and the witnesses who
the Court was adequately summarised in the trial
magistrate's written reasons for judgment dated 25th
1983 and there is no need to go over it again.
Suffice it to say after weighing the evidence and
observing the demeanor of the witnesses who had appeared
and testified on oath before him the trial magistrate
found the following facts to have been proved, on a
balance of probabilities, and granted the rule as prayed with costs :
1. In June 1980 the applicant (representingThabeng
School of Typing and Accountancy)
and one Gerard Pokane Ramoreboli (representing
Basutoland Congress Party) concluded a written agreement (annexed)
whereby the latter
leased to the applicant certain premises known as
B.C.P. Headquarters for use as a school of Typing and Accountancy.
The lease commenced on 1st July, 1980 foran initial
period of three years.
The articles mentioned in the applicationwere, at
all material time, used by theapplicant at the said B.C.P.
Headquartersfor his school of Typing and Accountancy.
On 3rd March, 1983 and before the expirationof the
lease period the Respondent came tothe B.C.P. Headquarters and
loaded away allthe articles mentioned in the applicationwithout
the approval/consent of the applicantwho was the Principal of
Thabeng School ofTyping and Accountancy.
The appeal was based on a number of grounds which could,
however, be summed up in that the decision of the
trial magistrate was against the evidence and the
applicant had no locus standi to bring the application.
The remedy sought by the applicant was clearly what is
commonly known as mandament van spolie. In order to obtain his
remedy all that the applicant had to prove was that he peacefully
possessed the property mentioned
in the application and the
Respondent wrongfully deprived him of his possession of that property
- See Kramer v. C.C.V.C. Grassy Park, 1948(1) 3.A. 748 p. 753.
I must say I was unable to
find any reasonable grounds on which to disturb the
findings of the trial magistrate in this case. On the
facts found proved it is clear therefore, that the
applicant and Ramoreboli had concluded a lease agreement whereby the
the B.C.P. Headquarters and was, at all material
time, using the property, mentioned in the application, for his
school of Typing
Accountancy. He was, therefore, in peaceful possession
of the property. However, the Respondent subsequently
and before the expiration of the lease period, loaded
away the property without the consent of the applicant
and thus wrongfully deprived him of his peaceful
possession of the property.
On the facts found proved the applicant had, in my view,
satisfied, on a balance of probabilities, the requirements of the
he had asked for.
As regards his locus standi to bring the
application before the Court it was argued that the applicant had
entered into the alleged lease agreement on behalf
Thebeng School of Typing and Accountancy. The latter,
and not the applicant, had, therefore, the locus standi to
approach the court with this application. I do not agree. Although
he may have concluded the lease agreement on behalf of Thabang
of Typing and
Accountancy, the applicant was, on the evidence the
person in charge of, or running the school. He was in
actual legal possession of the property used at the
school and, therefore, the proper person to institute the proceedings
- Muller v. Muller, 1915 T.P.D. 28.
In the result, there is no doubt in my mind that this
appeal ought not to succeed and I accordingly dismiss it with costs.
For Appellant : Mr. Mphutlane For Respondent :
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