IN THE HIGH COURT OF LESOTHO
In the Appeal of:
RETLATSITSDE NKOFO ...... Appellant
'MAKOPANO MANYO Respondent
Delivered by the Hon. Mr. Justice B.K. Molai on the
15th day of September, 1987.
On 22nd January, 1980 the Appellant sued one Lekhotla
Mayo before the Local Court of Sehang-hong far the return of his 82
goats and 19 kids which Lekhotla Manyo had allegedly caused
to disappear while the appellant was sway from home.
The Local Court decided the case against Lekhotlo Manya.
Unhappy with the decision, Lekhotla Manyo appealed to the Central
Makhaola i.e. he filed e notice of appeal and paid the
security fees. Shortly thereafter, Lekhotla Manyo passed away and was
available to argue the appeal before the Central Court of
Makhaola. The present Respondent who is Lekhotla Manyo's widow and
to .His estate took over and argued the appeal before the
Central Court which allowed the appeal. In turn the appellant
to the Judicial Commissioner's Court which granted
absolution from the instance. The appellant has lodged a further
appeal to this
court against the decision.
In terms of the certificate issued by the Judicial
Commissioner, the appeal was allowed to the High Court an the
of appeal and a point of law reserved for the
determination of this court. The Appellant's grounds of appeal can
be summed up in
that the Judicial Commissioner was, in the
circumstances of this case
2/ wrong in ......
wrong in granting absolution from the instance. The
point of law reserved by the Judicial Commissioner was whether or not
Central Court heard a late appeal without first hearing a
petition for leave to appeal out of time would be such a serious
as to vitiate the entire proceedings..
It may be convenient to dispose right away the point of
law reserved by the learned Judicial Commissioner. S.28(1) of the
and Local Courts Proclamation No. 62 pf...1938 provides:
"28(1) Any person aggrieved by any order or
decision of a local court may within thirty days from the date of
such order or decision
appeal therefrom to a Central Court."
There can be no doubt from the above cited subsection of
the Central and Local Courts Proclamation 7that it is the intention
legislature that any party aggrieved by the decision of a
local court may appeal to a Central Court within the prescribed
of thrity days. It follows, therefore that to note appeal
after the expiry of the prescribed period is non-compliance with the
of the legislature end for that reason an irregularity.
However, S.29 of the Central and Local Courts Proclamation supra,
"29. Leave to appeal out of time to any court
prescribed by the last preceding section may be given by such
court upon such
terms as to such court shall seem just."
This section clearly empowers the appellate court with a
discretion to grant leave to appeal out of time. Such discretion is,
always exercised judicially and not whimsically. It seems to
me there is no way in which the court can be said to have judicially
exercised its des-cretion to grant leave to appeal out of time unless
it has heard a petition in which good cause is shown why the
has not been lodged timeously. The answer to ' the question whether
or not where the Central Court heard a late appeal without
hearing a petition for leave to appeal out of time would be such a
serious misdirection as
3/to vitiate the.....
to vitiate the proceedings must, therefore, be in the
The question that immediately arises for the
determination of the Court is whether or not in the present case
Lekhotla Manyo was out
of time in noting his appeal to the Central
Court. The appellant argued that he was.
It was, however, not disputed that the Local Court
delivered its judgment on 6th June, 1980. In terms of the provisions
of the Central and Local Court Proclamation No. 62 of
1938, Lekhotle Monyo had, therefore, time until 6th July, 1980 to
appeal. The Central Court which heard the appeal found that
it was not noted out of time.
It is to be observed that in his own argument before the
Central Court, the appellant stated that Lekhatla Manyo had died an
July, 1980. When on 8th July, 1980 he had tried to issue a writ
of execution against him the appellant had learned that Lekhotla
Monyo had already noted appeal to the Central Court. The reasons for
appeal were, however, not yet filed. They were filed by one
Maqholosela Nkofo after Lekhatla Manyo himself had passed away. The
appellant's argument that the appeal was noted out of time was
obviously based on his contention that the reasons for appeal were
filed by Maqholoaela Nkofo after Lekhotla Manyo had passed away.
I must say I have lacked at the reasons for appeal-They
were, on the face of it, written by Lekhotla Manyo himself whose name
attached thereto. The appellant's contention that the appeal was
noted out of time because the reasons for appeal were filed by
Nkofo after the death of Lekhotla Manyo was, therefore,
not borne out by the reasons or appeal themselves.
In my view the onus of proof that Lekhotla Manyo had
noted the appeal out of time vested with the appellant on the well
that he who avers bears the onus.
4/ I am not .....
I am not convinced that, on a balance of probabilities,
the appellant hod satisfactorily discharged that onus.
That being so, I come to the conclusion that there was
nothing unreasonable with the Central Court's finding that the appeal
within the prescribed time. The question whether or not in
the present case Lekhotla Manyo was late in noting his appeal to the
Court must, therefore, be answered in the negative. The
decision I have made on the point of law reserved by the learned
Commissioner is also not applicable to this case.
Coming now to the merits of the case, the trial court
heard the evidence that the appellant was, at all material times
Lekhotla Manyo as a herdboy-He was looking after the
animals of Lekhotla Manyo together with his own animals at a cattle
he was allegedly found earmaking some of Lekhotla Manyo's
animals to himself. Consequently he was arrested and taken into
by the police at Mashai Police Post.
Upon his release from custody, the appellant and a
certain Tpr Tsietsi proceeded to the cattle post where they found
They were informed by Lekhotln Manya that some of the
animals had gone missing and the herdboys were unable to give a
explanation as to haw they disappeared, The herdboy
were, however, not called as witnesses. Their alleged explanation was
hearsay and of no evidential value.
Of the missing animals 82 sheep, 36 goats end 19 kids
were according to the appellant his own property. Lekhotla Manya had,
not reported the loss to the authorities. In the evidence of
the appellant it was Lekhotla Manyo who had caused his arrest and
presumably by reporting to the police that he (appellant)
had unlawfully earmarked some of his (Lekhatla Manyo's) animnls to
Lekhotlo Monyo was, therefore, responsible for the loss of
the animals. Wherefore he sued him for the return of the animals as
5/ It is significant .......
It is significant to note that in this case, the trial
court started the case by First hearing evidence without requiring
to explain the issues involved in the dispute. Indeed, it
was not until all his witness had testified before the trial court
the appellant who was the Plaintiff, gave evidence and told the
court what he was sueing Lekhotla Manyo for. After the Appellant/
Plaintiff hod closed his case, all that Lekhotla Manyo/ Defendant
told the court was that he had no defence because his witnesses
not before the court. He, nonetheless, eventually called 5 witnesses
to testify that appellant did not at all own the number
of animals he
was claiming from Lekhotle Manyo.
I must say I find the procedure followed by the trial
court in this case somewhat strange. The procedure to be followed in
Courts is clearly set out under Gover-nment Notice No. 21
of 1961 of which section 36 provides;
"The court shall before proceeding to hear
evidence, require the parties to explain the issues which are in
dispute, and such
issues shall be recorded."(my underlining)
I have underscored the ward "shall " in the
above quoted section of G.N. No.21 of 1961 to indicate my view
provisions thereof are mandatory. The procedure followed by
the trial court in the instant case, was in my opinion, in conflict
the provisions of S.36 of G.N. No.21 of 1961 and for that reason
a serious irregularity. Consequently, I take the view that there
nothing wrong with the judgment of absolution from the instance
entered by the Judicial Commissioner and it ought not be disturbed.
Accordingly I would dismiss this appeal with costs.
September, 1987. For Appellant : Mr. Kolisang For Respondent
: Mr. Matsau.
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