CIV/APN/303/2004
IN THE HIGH COURT OF LESOTHO
Held at Maseru
In the Matter Between:
MANTHABISENG RAKAIBE APPLICANT
And
MAMATSEPE RAKAIBE RESPONDENT
RULING
Delivered by the Honourable Madam Acting Justice N Majara on the 12th May 2005
Applicant in this matter approached the court for relief in the following terms;
That respondent or any persons authorized by her should vacate Applicant's house situated at Ha Thetsane in the Maseru district registered as plot NO:- 11294.
That respondent be ordered to pay costs herein.
Granting applicant further and/or alternative relief.
1
After several set downs and the matter not proceeding, it was postponed in the motion court by consent to the 25th April 2005 for hearing. On the said date, Ms Rantofi for respondent was duly before court but there was no appearance for applicant. There being no explanation offered with regard to the non-appearance, the court allowed counsel for respondent to proceed with the matter.
Ms Rantofi addressed the court on the points in limine as raised in their opposing affidavit and which were couched in the following terms;
The application is fatal in that applicant has chosen the wrong forum for this matter. The Subordinate Courts Order 1988 clearly grants the Magistrate courts with exclusive jurisdiction as courts of first instance to hear all matters of ejectment.
Applicant ought not to have proceeded by way of application in ejectment proceedings where there is a serious and material dispute of fact.
2
On the first point, respondents' case was based on the provisions of Section 17 (1) © of the 1988 Order and Section 6 of the High Court Act No 5 of 1978.
On the second point, it was respondents' case that in casu, there is clearly a dispute of fact on the claim for ejectment and that therefore, this matter can not be resolved on motion proceedings.
I now proceed to deal with the two points. With regard to the question of jurisdiction, Section 17 (1) © of the Subordinate Courts Order to which this court was referred provides as follows;
Subject to this Order, the court, with regard to causes of action, shall have jurisdiction,in any action of ejectment against the occupier of any house, land or premises within the district.
3
Section 6 of the High Court Act of 1978 in turn provides as follows;
No civil cause or action within the jurisdiction of a subordinate court (which expression includes a local or central court) shall be instituted in or removed into the High Court, save-
by a judge of the High Court acting of his own motion; or
with the leave of a judge upon application made to him in Chambers, and after notice to the other party.
In casu, applicant's claim for ejectment is stated in her first prayer in the Notice of Motion as I have already quoted above. In support of this prayer in her founding affidavit, in paragraph 14, she averred as follows;
"After some two weeks I returned to my house at Ha Thetsane where I discovered that the said house was occupied by one MATSEPE and other people placed thereat by Respondent. The matter was taken to Thetsane police where Respondent confirmed that she had allowed her children to occupy my house, the police said we should approach courts for relief."
4
Without even going into the background of this matter, the facts as stated in the affidavits are clear that indeed what applicant herein is seeking is that respondent whom she alleges has unlawfully occupied her house, should be ejected by the court.
The issue which this court has to determine therefore is whether applicant has brought her claim to the right forum. In light of the above quoted provisions, the answer has to be in the negative. It is my opinion that applicant ought to have lodged her claim in the Subordinate Court which has been granted the power to deal with claims of this nature.
This is more so as she has also failed to indicate reasons if any, why this matter could possibly be beyond the limits prescribed by the 1988 Order. Nor, did she indicate having sought leave of a judge to approach this court as prescribed by Section 6 of the High Court Act. See also the comments of my brother Nomngcongo J in Sekoala Phiri v Kamoho Phiri CIV/APN/560/02.
5
It is for these reasons that I uphold Ms Rantofi's point and accordingly dismiss the application on this point alone.
There is no order as to costs.
N. Majara
Acting Judge
For Applicant: Mr. N E Putsoane
For Respondent: Ms. Rantofi
6
