CIV/T/35/82
IN THE HIGH COURT OF LESOTHO In the Matter of :
JOSINA NTALA LITELU Plaintiff
and
LEFUFA KHETHISA MOLAPO RDefendant
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 30th day of October, 1987.
Plaintiff herein has filed with the Registrar of the High Court summons commencing an action in which she claims against the defendant
"(a) The return of the buildings and improvements erected on certain plot number 154, Mankoaneng, Leribe urban area, ALTERNATIVELY payment of the sum of M30,000,
Interest of the said sum of M30,000at the rate of 6% per annum a temporemorae,
Costs of suit,
Further and/or alternative relief."
Defendant notified her intention to defend the action and duly filed her plea to Plaintiff's declaration to the summons. It is common cause from the pleadings that defendant is the only child of Elen 'Maposholi Molapo. Although she was born in 1938 defendant has never married. She is, therefore, a spinister. Both Plaintiff and her sister were married but unfortunately their husbands passed away.
Prior to 1969 Plaintiff and Elen 'Maposholi Molapo entered into a verbal agreement in terms of which the latter was to procure a residential site, in Leribe urban area, for the former who then lived in the United Kingdom and later in Canada.
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Elen 'Maposholi Molapo duly procured the site on which a building was erected with the money she had received from the Plaintiff.
However, in July 1978 Elen 'Maposholi Molapo passed away. By a family decision defendant was appointed the sole heiress to the late Elen 'Maposholi Molapo's estate. As the heiress defendant caused to be transferred into her name sites numbers 264 and 154, situated at Mankoaneng in Leribe Urban area, which were registered in the name of the late Elen Maposholi Molapo under Title Deeds numbers 5178 and 5179 respectively.
According to Plaintiff's declaration to the summons it was a further term of the verbal agreement that Elen 'Maposholi Molapo should acquire, in her own name, the residential site for the Plaintiff into whose name it would be transferred as soon as the latter had returned permanently from Canada. The site thus acquired by Elen Maposholi Molapo was number 154 Situated at Mankoaneng in Leribe Urban area. It did not therefore, form part Of the estate of the late Elen 'Maposholi Molapo and, in her capacity as heirass, defendant had wrongfully transferred it into her name. Wherefor, Plaintiff sued defendant as aforesaid.
In her plea defendant disputed Plaintiff's allegation that it was a term of the verbal agreement that Elen 'Maposholi Molapo was to acquire, in her own name, a residential site for the. Plaintiff. She stated that Elen 'Maposholi Molapo in fact procured for and registered in the name of the Plaintiff herself under Title Deed number 6701, site number 309 situated at Lisemeng in Leribe urban area. With the money she had received from her, Elen 'Maposholi Molapo built a 10 roomed house for the Plaintiff on the site. The subject matter of the verbal agreement between Plaintiff and Elen 'Maposholi Molapo was, therefore, site number 309 and not 154 which formed part of the estate of the late Elen 'Maposholi Molapo. Consequently Defendant contended that in her capacity as the heiress, she had lawfully transferred site number 154 into her name and accordingly prayed that Plaintiff's claim be dismissed with costs on an attorney and client scale.
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In my view the decision in this case pivots on whether or not the late Elen 'Maposholi Molapo acquired site number 154 for the Plaintiff. Plaintiff's contention is that she did, a fact which is, however, denied by the defendant.
In as far as it is relevant, Plaintiff testified that in 1965 she asked Elen 'Maposholi Molapo to procure for her the site in Lisemeng i.e. site number 309. In 1969 she again asked Elen 'Maposholi to obtain for her the site at Mankoaneng i.e. site number 154. Elen 'Maposholi Molapo did obtain for her the two sites. While the site at Lisemeng (No.309) was registered in the name of Plaintiff herself the site at Mankoaneng (NO.154) was registered in the name of Elen Maposholi Molapo.
According to Plaintiff, Elen 'Maposholi Molapo was a sickly person and had no source of income. The reason for registering it in her name was to enable Elen 'Maposholi Molopo to use site number 154 as security when applying (from the bank) for the necessary funds to develop the sites. Site number 154 was the first to be developed. Whilst in Canada Plaintiff sent money to Elen 'Maposholi Molapo for the development of the site. With the money obtained from the mortgage of site number 154 and the rentals collected from the building erected thereon, Elen 'Maposholi Molapo was able to develop site number 309.
In her evidence, defendant conceded that sites number 154 and 309 were obtained by Elen 'Maposholi Molapo. She contended, however, that whilst she obtained for, and registered site number 309 in the name of Plantiff, Elen 'Maposholi Molapo procured site number 154 for herself. In support of this contention defendant handed in exhibit "F" and exhibit "H" which are a title deed and a certified copy of a title deed for sites numbers 154 and 309, respectively.
According to the exhibits, it is site number 309 which was registered in the name of the Plaintiff. Site number 154 was, however, registered in the name of Elen 'Maposholi Molapo herself. On the face of it, the site therefore, belonged to Elen 'Maposholi Molapo and not the Plaintiff.
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It is to be remembered that Plaintiff testified that it was a term of her agreement with Elen 'Maposholi Molapo that the latter would procure and register in her name site number 154 for the former in order that she (Elen 'Maposholi Molapo) could use it as security to obtain funds from the bank. No proof was, however, produced by Plaintiff to substantiate this allegation. On the other hand defendant handed in exhibits G1 and G2 which are a deed of hypothecation and a title deed in respect of site number 264. According to the exhibits it was site number 264, which admittedly belonged to her, that Elen 'Maposholi Molapo used as security to obtain funds from the hank.
Moreover, defendant testified that Elen 'Maposholi Molapo also worked as a tailor, she was a member of the Senata she had two brick fields on which she moulded bricks and operated a shop at a place called Khanyane. Although she conceded that whilst she was in Canada Plaintiff did sent some money to Elen 'Maposholi Molopo, defendant contended that the money was used to develop Plaintiff's site number 309 on which a 3 bedroomed house had admittedly been erected. She denied, therefore, Plaintiff's allegations that the money was used to develop site number 154 and Elen 'Maposholi Molapo had no income with which she could have developed the site.
I am not convinced that Elen 'Maposholi Molapo was as poor as Plaintiff wants this court to belief. Defendant's evidence that Elen 'Maposholi Molapo used the money she received from Plaintiff to develop the latter's site NO. 309 is, in my view more sensible. I am accordingly inclined to accept as the truth Defendant's story and reject Plaintiff's version. * as false.
That site number 154 belonged to her Plaintiff also relied on exhibic "B", a document styled "the last will and testament" purporting to have been executed on 19th August, 1976 by Elen 'Maposholi Molapo whilst she was visiting the Plaintiff in Canada. In that document Elen 'Maposholi Molapo allegedly stated inter alia, that, site number 154 belonged to the Plaintiff and did not, therefore, form part of her estate. Plaintiff also handed in Exhibit "C", a document purporting to be an affidavit deposed to by one Joseph Adetuyi who had signed as one of the
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witnesses to the execution of Exhibit "B". In his affidavit, the deponent stated, inter alia, that Elen 'Maposholi Molapo made the "will" in Canada with the understanding that she would later validate it "according to her area law when she return to her country."
I must say I have difficulties with these documents. Exhibit "B" is a photostat copy. It is, however, not certified a true copy of the original. In any event, if it were to be validated at a later stage there can be no doubt that Exhibit "B" is a draft and not the actual "will". Indeed, Plaintiff herself told the court that the actual "will" was in the possession of certain Advocate Karim who was living in the South African province of Natal. Advocate Karim was not called to testify before this court and produce the alleged "will". Exhibit "C" is also made on a photostat copy of a roneoed form which is barely legible. Although it purports to be an affidavit, Exhibit "C" does not even bear a revenue stamp. It is, therefore, not properly before this court.
It may be mentioned that in support of her contention that Elen 'Maposholi Molapo made a "will" in which she stated that site number 154 belonged to her, Plaintiff adduced the evidence of P.W.2, Florence Makoali Lebesa, who testified that she lived at Matsoatlareng here in Maseru. She and Elen 'Maposholi Molapo were intimate friends. If she were not mistaken Elen Maposholi Molapo lived at Mankoaneng in Leribe urban area where she had residential houses. One of the houses was used for hire and formerly belonged to a relative of Elen 'Moposholi Molapo. She was not sure if the relative was a paternal uncle. Elen Maposholi Molapo told her that she had built houses for the Plaintiff in respect of whom she had also made a will. She had personally never seen the will. She, however, saw the houses which were built of bricks and had tiles on the floor. She did not remember what type of bricks were used to built the houses. In her own words P.W.2 told the court that she was of a poor memory.
In my view the evidence of P.W.2 is full of so many uncertainties that no reliance can reasonably be made on it. It is Plaintiff who raised the point that Elen 'Maposholi Molapo
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acquired site number 154 for her. Consequently the onus of proof vesred squarely on her shoulders. However, considering the evidence as a whole I am not convinced that, on a preponderance of probabilities, Plaintiff satisfactorily discharged that onus. The question I have earlier posted viz. whether or not the late Elen 'Maposholi Molapo acquired site number 154 for the Plaintiff must, therefore, be answered in the negative In all probabilities this site was acquired by Elen Maposholi Molapo for herself.
Having decided that site number 154 belonged to the late Elen 'Maposholi Molapo, it must be accepted that defendant, who is admittedly her heiress and legal representative, rightly transferred it into her name. That being so, I take the view that Plaintiff's claim ought not to succeed. I am, however, not convinced that this is a proper case where the court should award costs on an attorney and client scale.
I would accordingly dismiss Plaintiff's claim with costs on the ordinary scale.
B.K. MOLAI JUDGE.
30th October, 1987.
Tor Plaintiff Mr. Matsau
For Defendant Mr. Maqutu.
