CIV/APN/470/2005

IN THE
HIGH COURT OF LESOTHO

In the matter between:

JOHANNES TUOANE LETUKA Applicant

and

MOHAMED ISLAM
ABUBAKER Respondent

JUDGMENT

Delivered
by the Hon. Mrs Justice A. M. Hlajoane on 3^rd April, 2008.

This is an Application for a
declaratory order. The Applicant is asking the Court to declare null
and void and without force and
effect some two lease agreements JTL2
and JTL3 entered into between himself and the Respondent in respect
of Plot No.23131-001.89
and 90 purportedly entered into on the 30^th
May, 1996 and 18^th
August 1997 respectively. He is also asking for costs.

In his founding papers, the
Applicant has shown that he holds title to the plot in question,
situated along Seretse Khama road opposite
St Luke at Maputsoe Urban
Area in the Leribe district. That he has a valid registered sublease
agreement with the Lesotho National
Development Corporation (LNDC),
the owner of the site in question, for a period of 40 years. The
sublease agreement dated 29^th
July, 1986 is “JTL1”.

The said sublease allows the
Applicant to further sublet portion of that plot. The Applicant is
saying that he entered into a sublease
agreement with the Respondent
on the 30^th
May, 1996 in which he only sublet 200 square metres of that plot,
“JTL2” for a period of 25 years. But that when the Respondent

later erected a building on that plot he crossed the boundary which
called for an increase in rent from M300 to M600. He further
said
that the Respondent nonetheless kept on paying M300 which according
to the Applicant was outside their agreement.

The Applicant further said in
his affidavit that the Respondent in 1997induced him to sign yet
another sublease agreement “JTL3”
on the 18^th
August, 1997, wherein the Respondent sought to hire the entire plot
and that the agreement was that rent shall be M500.00 per month
in
addition to the M600.00. The Applicant was never left with a copy of
the subsequent lease, which was to be for a period of
35 years.

According to the Applicant the
Respondent had never paid the rental of M1100.00 per month. The
Applicant said further that though
the second sublease had been
signed, the Respondent never occupied or developed that plot. That
in the end some street vendors
took advantage of the situation and
erected their shacks. They were however removed from the plot by
demolishing their sharks
through a Court process from the
Magistrate’s Court Leribe of the 28^th
November, 2005.

To his dismay, the Applicant
said that on the 30^th
November, 2005 the Respondent offloaded sand, crushed stone and
bricks on the plot and without wasting any more time erected a
shark.
Through the office of the Town Clerk the Maputsoe Police stopped him
and removed him from the site.

The Applicant when he later came
across the second sublease, he learned that the second lease did not
cancel the first lease but
that they existed side by side. And that
on closer look at one of the agreements he became aware that it was
stated that the sublease
agreement was incapable of being terminated.

He also learned that both
agreements shared the same ministerial consent and concluded that
there was forgery. They both shared
the same receipt number for the
payment of stamp duty. And that both subleases have not been
registered contrary to provisions
of the Deeds
Registry Act.

The Applicant therefore feels
that both sublease agreements are to be declared null and void and of
no legal force and effect.

It was whilst there was that
disagreement on rent that the Applicant entered into another sublease
agreement on the same plot with
another person, Katija Bebe Anwary
and the said sublease was registered in 2003.

According to the Applicant he
has instituted ejectment proceedings at the Magistrate’s court in
respect of the two agreements
and the matter is still pending at that
Court. He says only rent in respect of the first agreement has been
paid up to December,
2006 as he no longer wanted to pursue the
agreements but wanted out. He based his argument on the provisions
of section 24 of the
Deeds Registry Act 1967.

The Respondent on the other hand
admitted that the two leases exist side by side and that both have
not been registered. According
to the Respondent he has been paying
rent to date, but that the Applicant could be the one who is not
collecting such rent as it
is still being deposited into Applicant’s
account, which Bank account had been given to them by the Applicant
himself.

What has been common cause
between the parties was that the agreements between them were not
registered, but the reason for not
being registered is not common
cause. They also are agreed that consent for both agreements was
granted and that the agreements
if not registered after expiration of
three months would lapse.

The Respondent has shown that it
was through no fault of his that the agreements were not registered.
Though it has not been specifically
stated in law as to who has to
register a lease, in casu
the Respondent
contended that it was the Applicant who had to register the lease
agreements as he was the one who was given the
necessary consent
papers to the transactions for the purpose. To confirm that, the
Applicant in his replying affidavit has shown
that he refused to sign
the consent papers as he was not being paid rent.

The Respondent had indicated
that he even had to file proceedings before this Court
CIV/APN/41/2006
asking the Court to compel the Applicant to register the two leases.
This has not been denied by the Applicant.

The Respondent submitted that
the Application was without merit and an abuse of Court process. He
showed that the Applicant had
approached the Magistrate Court for
ejectment of the Respondent and an interdict. The Respondent in
those proceedings made a counter
Application for an interdict against
the Applicant and the said Katija Anwary, preventing them from
continuing with construction
of a building on that land, pending the
ejectment proceedings.

According to the Respondent,
both interdicts were granted pending the ejectment action in a
certain CC383/2005.
The Applicant then withdrew the ejectment action thus frustrating
the interdict pendente
lite obtained by the
Respondent. The interdict by the Respondent would no longer operate
as the ejectment action by the Applicant would
no longer be pending.
The Respondent felt that the withdrawal was not genuine but meant to
evade an interdict. This has not been
denied by the Applicant, but
said he withdrew because he had been advised that a non-existent
sublease could not be cancelled or
set aside, that is why he chose to
withdraw from it.

The Respondent called this an
abuse of Court process relying on the case of Hudson
v Hudson and another 1927 AD 259 at 268
where it was decided that:-

“When therefore the Court finds an attempt made to use
for ulterior purposes the machinery devised for the better
administration
of justice, it is the duty of the Court to prevent
such abuse.”

It was also held in the case
cited therein that:-

Litigating identically the same question in a subsequent
action is an abuse of the process of the Court.”

And A.L. Smith L.J. expressed
himself as follows:-

“I do not base my judgment upon the ground that the
question is res judicata,
but upon another ground-namely that the issue raised in this action
is identically the same issue as that which was raised in
the
proceedings before the County Court Judge.”

What the Court said in Hudson’s
case was that it is
an abuse of Court process to litigate identically the same question
in a subsequent proceeding. In casu,
the Applicant withdrew the ejectment proceedings at the Magistrate’s
Court thus frustrating the interdict pendente
lite by the
Respondent. He just withdrew without any change of circumstances.

The Court on the authority of
Hudson
supra would
not allow that kind of litigating and considers it an abuse of Court
process. In those proceedings the Applicant still claimed
that the
subleases were of no legal effect for reasons given and also before
this Court he still challenged the validity of the
subleases.

It has been clear from
paragraphs 8 (b) of the Applicant’s replying affidavit that
Applicant’s intention in withdrawing the
ejectment proceedings at
the Magistrate’s Court was to frustrate the interdict pendente
lite by the
Respondent.

The case of Hudson
was cited in Levy v
Levy 1991 (3) S.A 620
and the Court stated that,

“it is after all not ordinarily the function of the
Court to force a person to institute or proceed with an action
against his or
her will or to investigate the reasons for abandoning
or wishing to abandon one.”

And quoting from Hudson’s
case that ‘where … the Court finds an attempt made to use for
ulterior purposes machinery devised for the better administration
of
justice, it is the duty of the Court to prevent such abuse. But it
is a power to be exercised with great caution, and only
in a clear
case.’

At paragraph 10 © of his
replying papers the Applicant indicated that he refused to sign the
consent papers because he was not
being paid any rent. At paragraph
12 (b) of the Respondent’s opposing affidavit he mentioned that in
terms of Annexure “AB2”
attached to his papers, he had even paid
rent in advance for the whole year of 2006. The document has the
Applicant’s signing,
his signing because he never commented on
annexure “AB2” but he admitted that he received rent for 2006.

Declaratory Order

The Respondent pointed out that
where the statute already puts the matter beyond doubt, a declaratory
order cannot be decreed as
the position is already defined by
statute, Ex Parte
Norikson 1962 (1) S.A 857
where the Court said that, “The Court should not make a declaratory
order where the legal position has already been clearly defined
by
statute and there appears no dispute on the papers as to the legal
effect.”

Section 24 of the Deeds
Registry Act No.12 of 1967
deals with leases over immovable property. Subsection
(1) clearly
stipulates that every lease or sublease for more than three years
shall
be registered. (My emphasis)

Subsection (5) stipulates that
if lease or sublease is not registered within three months of
granting consent, shall
render the agreement null and void and of no force and effect.

It was common cause that the
subleases were for more than three years, and therefore had to be
registered.

It was also common cause that
consent from proper authority for both subleases for 1996 and 1997
were obtained. Also that the subleases
were not registered.

Again the Respondent showed that
the present application seeks a declaration of a fact that the leases
since unregistered therefore
are null and void. He said, the court
could not grant a declaration as to a fact, but that declaration must
relate to a right,
citing the case of Electrical
Contractors’ Association (South Africa and Another (ECA) v Building
Industries Federation (South Africa) (BIFSA) 1980
(2) S.A 516 at 520.
The Court there was asked in the Notice of Motion for a declaration
that the circular contained false statements. The Court
decided that
it could only make a declaration as to a right not fact.

Presence of Another Remedy

The Respondent indicated further
that the granting of a declaratory order was discretionary. That
relevant to the exercise of discretion
by the Court, was the presence
of alternative remedies. In Safari
Reservation (Pty) Ltd v Zululand Safari’s (Pty) Ltd 1966 (4) S.A
165 at 171 the Court
had this to say that:-

“the fact that remedies other than a declaration of
rights are available is certainly a consideration which the Court
will take into
account in exercising its discretion as to whether or
not to make a declaration of rights.”

The Applicant in casu
still had the remedy of ejectment proceedings available to him, which
remedy he chose to withdraw at the Magistrate’s Court.

The Court in the exercise of its
discretion refuses to grant a declaratory order for reasons shown
above.

The Court was also concerned
that the agreement was entered into in 1996 and 1997 respectively.
It has not been denied that rent
has been paid and accepted till
2006, at least for the first lease. Applicant has shown that the
Respondent had crossed over to
something like 800 metres, so that
even if a declarator were to be granted that would also affect the
land not covered in the two
lease agreements.

The Applicant has also not
denied that there have been some improvements on the plots in
question though the value of such improvements
could not be
ascertained on the papers before Court.

For the reasons stated above,
the Application is dismissed with costs.

A. M. HLAJOANE

JUDGE

For Applicant: Mr Nteso

For Respondent: Mr Teele.