IN THE HIGH COURT OF LESOTHO In the Matter of
JOSINA NTALA LITELU Plaintiff
LEFUFA KHETHISA MOLAPO RDefendant
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
"(a) The return of the buildings and improvements
erected on certain plot number 154, Mankoaneng, Leribe urban area,
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
cause from the pleadings that defendant is the only child
of Elen 'Maposholi Molapo. Although she was born in 1938 defendant
never married. She is, therefore, a spinister. Both Plaintiff and
her sister were married but unfortunately their husbands passed
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.
Elen 'Maposholi Molapo duly procured the site on which a
building was erected with the money she had received from the
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,
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
acquire, in her own name, the residential site for the
Plaintiff into whose name it would be transferred as soon as the
returned permanently from Canada. The site thus acquired
by Elen Maposholi Molapo was number 154 Situated at Mankoaneng in
Urban area. It did not therefore, form part Of the estate of
the late Elen 'Maposholi Molapo and, in her capacity as heirass,
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
registered in the name of the Plaintiff herself under Title
Deed number 6701, site number 309 situated at Lisemeng in Leribe
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
an attorney and client scale.
3/ in my view
In my view the decision in this case pivots on whether
or not the late Elen 'Maposholi Molapo acquired site number 154 for
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
i.e. site number 309. In 1969 she again asked Elen
'Maposholi to obtain for her the site at Mankoaneng i.e. site number
'Maposholi Molapo did obtain for her the two sites. While
the site at Lisemeng (No.309) was registered in the name of Plaintiff
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
to develop the sites. Site number 154 was the first
to be developed. Whilst in Canada Plaintiff sent money to Elen
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,
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
deed and a certified copy of a title deed for sites numbers 154 and
According to the exhibits, it is site number 309 which
was registered in the name of the Plaintiff. Site number 154 was,
registered in the name of Elen 'Maposholi Molapo herself. On
the face of it, the site therefore, belonged to Elen 'Maposholi
and not the Plaintiff.
4/ It is to be
It is to be remembered that Plaintiff testified that it
was a term of her agreement with Elen 'Maposholi Molapo that the
procure and register in her name site number 154 for the
former in order that she (Elen 'Maposholi Molapo) could use it as
to obtain funds from the bank. No proof was, however,
produced by Plaintiff to substantiate this allegation. On the other
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
Plaintiff did sent some money to Elen 'Maposholi Molopo,
defendant contended that the money was used to develop Plaintiff's
number 309 on which a 3 bedroomed house had admittedly been
erected. She denied, therefore, Plaintiff's allegations that the
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
'Maposholi Molapo used the money she received from
Plaintiff to develop the latter's site NO. 309 is, in my view more
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
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
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
possession of certain Advocate Karim who was living in the South
African province of Natal. Advocate Karim was not called
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
that site number 154 belonged to her, Plaintiff adduced the
evidence of P.W.2, Florence Makoali Lebesa, who testified that she
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
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
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
raised the point that Elen 'Maposholi Molapo
6/ acquired site
acquired site number 154 for her. Consequently the onus
of proof vesred squarely on her shoulders. However, considering the
as a whole I am not convinced that, on a preponderance of
probabilities, Plaintiff satisfactorily discharged that onus. The
I have earlier posted viz. whether or not the late Elen
'Maposholi Molapo acquired site number 154 for the Plaintiff must,
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
her heiress and legal representative, rightly transferred
it into her name. That being so, I take the view that Plaintiff's
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
I would accordingly dismiss Plaintiff's claim with costs
on the ordinary scale.
B.K. MOLAI JUDGE.
30th October, 1987.
Plaintiff Mr. Matsau
For Defendant Mr. Maqutu.
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