CIV/A/1/84

IN THE HIGH COURT OF LESOTHO
In the Appeal of :

PHOKA CHAOLANE' Appellant

V
IKANENG 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 (hereinafter referred 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 :

2 desks,

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 of
this appllication;

(6) Calling on Respondent to show cause, if any,

/on the

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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 when the 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 testified before

the Court was adequately summarised in the trial magistrate's written reasons for judgment dated 25th

November, 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 (representing
Thabeng 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.

2. The lease commenced on 1st July, 1980 for
   an initial period of three years.

3. The articles mentioned in the application
   were, at all material time, used by the
   applicant at the said B.C.P. Headquarters
   for his school of Typing and Accountancy.

4. On 3rd March, 1983 and before the expiration
   of the lease period the Respondent came to
   the B.C.P. Headquarters and loaded away all
   the articles mentioned in the application
   without the approval/consent of the applicant
   who was the Principal of Thabeng School of
   Typing and Accountancy.

/The appeal

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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 former occupied the B.C.P. Headquarters and was, at all material time, using the property, mentioned in the application, for his school of Typing and

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 remedy 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 of

/Thabeng

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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 School 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 : Mr. Tsotsi.