CIV/APN/23/81
IN THE HIGH COURT OF LESOTHO In the Application of :
PEO LEBUSA Applicant
V
NTAOTE MOPHETHE Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 27th day of August,. 1986.
This is an application in which the applicant herein moves the court for an order that CIV/A/23/81
be reinstated and the Respondent pay the costs only
in the event of opposition. The Respondent has intimated
his intention to oppose this matter and affidavits have duly been filed by either parties.
It emerges from the affidavits that on 4th September, 1981 the Resident Magistrate of Maseru gave judgment in favour of the Respondent in Civil case No. 1047/77 where the latter had sued the applicant for ejectment, damages, costs of suit and further or alternative relief. The applicant was unhappy with the decision against which he noted en appeal to this Court on 21st September, 1981.
On 12th January, 1982 the Registrar of the High Court addressed a letter to the Respondent, with a copy to the Applicant's attorneys, in which letter the parties were advised that the record of proceedings in CC. 1047/77 had reached the office of the Registrar and they (the parties) should therefore, get in touch with the Registrar
/for
-2-
for purposes of agreeing on a suitable date of set down in terms of the High Court Rules 1980 of which Rule 52(1) provides, in part :
"52(1) (a) when an appeal has been noted from
a judgment or order of a subordinate court the appellant may within four weeks after noting of the appeal apply in writing to the Registrar for a date of hearing giving notice to the appellant and all other parties that he has done so , ..."
It is common cause that the applicant did not, within the time stipulated by Rule 52(1) (a) of the abovementioned High Court Rules set down the appeal for hearing. Nor, indeed, did the Respondent himself do so before the expiration of two months from the date of the noting of appeal as required by the provisions of Rule 52(1) (c) of the High Court Rules. Instead the Respondent caused a warrant of ejectment to be issued against the applicant in September, 1983 i.e. about two (2) years after the noting of appeal. Now,Rule 52(1) (d) of the High Court Rules 1.980 clearly provides :
"(d) If neither party applies for a date of hearing as aforesaid the appeal shall be deemed to have lapsed unless the Court on application by the appellant and on good reasons shown shall otherwise order."
There can be no doubt, therefore, that as both the applicant and the Respondent failed to comply with the provisions of paragraphs (a) and (c) of subrule (1)
of Rule 52 of the High Court Rules above, the appeal is deemed to have lapsed and must not, ordinarily, be
entertained unless the Court otherwise orders in terms of the provisions of Rule 52 (d) of the Rules.
The gravamen of this application is, in fact, that notwithstanding the parties''failure to comply with -
/the provisions
-3-
the provisions of Rule 52(1) (a) and (c) of the High Court Rules, 1980 the Court should exercise a discretion and resuscitate the appeal. Two grounds are advanced by the applicant in this regard viz. that failure to set down the appeal for hearing was due to attorney Jobodwana-s fault for which ho could not be punished and he had good prospects of success in the appeal itself.
In his founding affidavit the applicant deposed that in CC. 1047/77 he was represented by attorney Jobodwana of the firm G.M. Kolisang & Co.. After judgment had been delivered the appeal was noted on his behalf by attorney Jobodwana who, however, left G.M. Kolisang & Co. in April, 1982 to practice on his own. Nonetheless by mutual agreement between attorney Jobodwana, attorney
Kolisang and the applicant himself, attorney Jobodwana, who was more familiar with the proceedings, was to handle
the appeal. In June, 1983 the applicant was told by attorney Jobodwana that the appeal had been set down for hearing in October 1983. In November.1983 the applicant was, however, nerved with a writ of execution. He then went to sec attorney Jobodwana about it but was informed that the latter had already left the country. It is significant to note that attorney Jobodwana has not filed any affidavit and what he is alleged to have said remains inadmissible hearsay evidence.
The answering affidavit which was deposed to by Mr. Matsau, counsel for the Respondent, did not dispute that attorney Jobodwana of the firm of G.M. Kolisang & Co. had represented the applicant in CC. 1047/77. It, however, disclosed that the appeal was noted by attorney G.M. Kolisang also of the firm G.M. Kolisang & Co. Afters
/he had
-4-
he had left the firm of G.M. Kolisang & Co. attorney Jobodwana opened his firm styled Z.N. Jobodwana & Co.. At no stage did the firm of G.M. Kolisang & Co. file a notice of withdrawal and, indeed, all correspondence (annexures "B", "C" & "D") showed that applicant's attorneys of record were always G.M. Kolisang & Co.
I have had the occasion to look at the notice of appeal (pp. 47 and 48 of the record of proceedings) which clearly show that the appellant/applicant's attorney of record was "G.M. Kolisang Esq." It seems to me there is substance in Respondent's suggestion that if it were true that after he had left the firm of G.M. Kolisang & Co. attorney Jobodwana handled the appeal under the new firm styled Z.N. Jobodwana & Co. the firm G.M. Kolisang & Co. which then ceased to act for the applicant, would have filed a notice of withdrawal in accordance with the provisions of the High Court Rules 1980 of which Rule 15(4) provides, in part :
"(4) Where an attorney acting for any partyceases so to act he shall forthwithnotify the Registrar and all partiesaccordingly "
I have underscored the word "shall" in the above cited subsection (4) to indicate my view that the provisions thereof are mandatory and the attorney concerned has no discretion in the matter. Taking into account the fact that the notice of appeal was filed by G.M. Kolisang & Co., the subsequent correspondence was always between the Respondent or his attorneys and the firm of G.M. Kolisang & Co. and no notice of withdrawal was ever filed by the firm of G.M. Kolisang & Co., it seems to me the balance of
/probabilities
-5-
probabilities is against the applicant's contention that attorney Jobodwana of the firm Z.N. Jobodwena & Co. should bear the blame for non-compliance with the provisions of Rule 52(1) (a) of the High Court Rules.
As regards the prospects of success it is worth noting that the trial magistrate found as proved that . prior to 1969 the area of Ha Thamae was within the jurisdiction of chief Seqobela. In 1969 chief Moshe was, by a new gazette, proclamed the chief of Ha Thamae, It was, however, not clear that the area known as Ha Molipa was included in the area of Ha Thamae for there was a boundary dispute between chief Seqobela and the new chief Moshe, over the area of Ha Molipa, Shortly before April, 1971 and before the boundary dispute could be resolved, one Pulumo Sehlabo surrendered his arable land situated in the area of Ha Molipa to chief Seqobela for allocation of residential sites On 20th April,
Respondent was one of the people who were allocatedresidential sites on the field by chief Seqobele. Heobtained a Form C (Certificate of allocation) for theallocation, fenced the site on which ho errected aprefabricated structure in preparation for the buildingof a house In September 1971 the Ministry of Interiorintervened in the boundary dispute between chief Seqobelaand chief,Moshe when the area of Ha Molipa was lawfullydeclared an integral part of Ha Thamae. On 31st May,
chief Moshe re allocated the site, the subjectmatter of this case, to the applicant who was also issuedwith a Form "C" end subsequently had the site registeredin his name
It is clear from the proven facts that until
/September
-6-
September 1971 it was not settled that the area of Ha Molipa was an intergral part of Ha Thamae. There is no doubt, however, that prior to 1969 the area of Ha Molipa was under the jurisdiction of chief Seqobela. The fact that the new chief Moshe disputed the area of Ha Molipa did not, in my view, automatically oust chief Seqobela of his jurisdiction over the area, Until the Ministry of Interior intervened and lawfully declared Ha Molipa an integral part of Ha Thamae, Chief Seqobela still had jurisdiction over the area and could lawfully allocate the site, the subject matter of this case, to the Respondent,
It follows, therefore, that when after the area of Ha Molipa had lawfully been declared an integral part of his area (Ha Themae) chief Moshe purported to reallocate the site to the applicant he could not lawfully do so for the simple reason that the site was still lawfully allocated to the Respondent end, therefore, not available for re-allocation. He could do so lawfully only after he had revoked or derogated the allocation to the Respondent in terms of S. 9 of the now repealed Land Act Mo 24 of 1967 which was,however the law applicable in 1972,
That being so, the applicant has on the merits of the appeal no prospects of success.
It was argued before me that when on 4th September, 1981 the trial magistrate entered judgment for the Respondent the law applicable was the Land Act, 1979 in . terms of 3. 82 thereof judgment should have been entered in favour of the applicant who had developed the site.
/I am
-7-
I am unable to agree. CC. 1047/77 was instituted in 1977 when the applicable law was the Land Act No. 20 of 1973. To suggest that the magistrate should have invoked the provisions of the Land Act, 1979 which was not in force at the time of the institution of CC. 1047/77 implies that the Land Act 1979 should have been applied with restrospective effect. I am not aware of any provisions of the Land Act, 1979 or any law for that matter, authorising the trial magistrate to have taken such a course.
In my view this application ought not to succeed and I accordingly dismiss it with costs.
J U D G E. 27th August, 1986.
For Appellant : Mr. Kolisang For Respondent : Mr. Matsau.