IN THE HIGH COURT OF LESOTHO
CIV/T/525/2004
In the matter between:-
MOPELI MOHALE 1ST PLAINTIFF
‘MAMOPELI MOHALE 2ND PLAINTIFF
and
TLALI MOHALE 1STDEFENDANT
ATTORNEY GENERAL 2ND DEFENDANT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara
on the 28th November 2008
Plaintiffs approached this Court seeking a declarator to the effect that 1st plaintiff is the legitimate son of the late Chief Nkhahle Mohale in terms of Section 10 of the Chieftainship Act of 1968 and costs of suit. In his declaration, 1st plaintiff avers that he was born of a customary union between 2nd plaintiff and the late Chief Nkhahle Mohale.
Having filed a notice of intention to defend, 1st defendant filed his plea and in his averments contained therein, he raised the plea of res judicata. It is his case that the issue of the customary marriage between 2nd plaintiff and the late Chief Nkhahle Mohale has already been decided both by this Court and the Subordinate Court of Mohale’s Hoek. He added that this Court is now functus officio for the reason that it has already pronounced itself on this issue inCIV/APN/109/81.
Although the plea of res judicata was not raised by way of a special plea, the parties through their respective counsel approached this Court, sought and were granted
permission to address it on those points of law first. The Court directed them to prepare written submissions and file their heads of argument in that regard.
I have already shown that in the present case, 1st plaintiff is seeking that he be declared the legitimate son of the late Chief Nkhahle Mohale. In his heads of argument, Mr. Ntlhoki, Counsel for defendants made the contention that this Court has pronounced the status of the 1st plaintiff herein as being illegitimate in CIV/APN/109/81. He added that the decision was not appealed against for the last twenty-six years. It was his submission that simply adding another
party to an issue that has already been decided in an attempt to technically by-pass the plea of res judicata cannot avail plaintiffs who deposed to sworn affidavits in the 1981 case.
Secondly, Counsel for defendants made the submission that the decision of the High Court was re-affirmed by the Mohale’s Hoek Magistrate Court following the consolidation of the three cases as already mentioned above. Mr. Ntlhoki added that the question of legitimacy is one of status and has been determined in Court. It was his submission that failure to take prompt action leads to the dismissal of a claim where there is unreasonable delay and manifest prejudice to the other party.
Further that where a right is abandoned the status quo ante cannot be restored because of the need to enhance the rule of law and order. That, by withdrawing the application in CIV/APN383/00 1st plaintiff abandoned his claim to legitimacy and his claim is now belated, contrived and untenable in law.
Counsel for defendants made the submission that the issue of succession on the basis of legitimacy or otherwise of 1st plaintiff has been settled by the Court and that above all, previous decisions on the issue of legitimacy or otherwise of 1st plaintiff are judgments in rem, thus, binding on everyone.
In response, Mr. Mosito who appeared on behalf of the plaintiffs, made the submission that defendants’ plea of res judicata cannot succeed because firstly, the subject matter in the present case was not definitively determined. Secondly, that it is also
arguable that the subject matter is the same as in the other previous cases and lastly that the parties are not the same. He referred this Court to the case of Sechele v Sechele LAC (1985-1989) p 297 with respect to the established requisites of the special plea of res judicata.
Secondly, Mr. Mosito made the contention that this Court is not functus officio for the reason that the defendants’ argument that this matter has already been considered by this Court is incorrect because this Court never definitively pronounced itself on the issue of legitimacy of the 1st plaintiff. He added that in CIV/APN/109/81 all that the Court did was to declare the customary marriage between the late Chief Nkhahle Mohale and the second plaintiff null and void. He added that the Court did so without even affording the 2nd plaintiff an opportunity to join as a party yet her marriage was nullified by the judgment.
Further that this Court cannot be bound by its wrong previous decision which he contends resulted from defective proceedings. He made the submission that in CIV/APN/109/81 the question of legitimacy was left open and as such, this Court cannot be and is not functus officio.
Before I proceed to consider these points of law, I find it apposite to give a brief background of this case. Sometime in 1981, ‘Mamonica Mohale, 1st defendant’s mother, instituted an application in this Court against 1st plaintiff herein for an order declaring inter alia, the latter not to be the legitimate son of the late Chief Nkhahle Mohale within the meaning of Section 10 (1) of the Chieftainship Act of 1968. Further, declaring her, applicant the sole wife of the late Chief Nkhahle Mohale to be his lawful successor in terms of the same Act.
Fast forward to 2000, 1st plaintiff herein launched another application against 1st defendant and five others CIV/APN/383/00 wherein he was seeking a declarator that the marriage between 2nd plaintiff herein and the late chief Nkhahle Mohale was putative and secondly, that he is the legitimate son on the late Chief Nkhahle.
He however withdrew the application. 1st defendant herein a junior brother to the late Nkhahle, was later placed and inaugurated as an heir and successor to the seat of the Principal Chief of Tajane, Pontseng and ha Ramoetsana.
In 2001 the 1st plaintiff yet again instituted another application before this Court namely, CIV/APN/86/2001 against 1st defendant herein, the Minister of Local Government and the Attorney General. In CIV/APN/86/2001 the 1st plaintiff herein was seeking amongst others, that the placement and inauguration of the 1st defendant be declared null and void, that he be entitled to succeed his father as the Principal chief of Tajane and that the marriage
between the late chief Nkhahle and ‘Mamonica be declared customary.
On the other hand, 1st defendant herein had also instituted two cases namely, CIV/APN/190/01 against 1st plaintiff and the Attorney General before this Court and another one against the same partiesin C.C 31/02 in the Mohale’s Hoek Magistrate Court. By agreement between the parties, this Court per the order of the learned Mofolo J. directed that the three matters be consolidated and heard by the Mohale’s Hoek Magistrate Court.
In the first case that was decided by this Court namely, CIV/APN/109/81, per the judgment of F. X. Rooney J. applicant therein namely, ‘Mamonica (present 1st defendant’s mother) was granted only the second prayer and costs. The Court therein came to the finding that the purported
marriage between the 1st plaintiff’s mother i.e. 2nd plaintiff herein, and the late Chief Nkhahle Mohale was null and voidab initio. Rooney J. further did not accept the assertion that 2nd plaintiff’s mother ‘bona fide believed that her marriage to the late Chief Nkhahle Mohale was lawful’. This notwithstanding, Rooney J did not make a determination on the legitimacy or otherwise of the 1st plaintiff herein so that the submission that he did so is not correct.
My finding is based on the following passage of the judgment:-
“Mr. Sello for the respondent nonetheless contended that because the customary marriage was entered into in good faith by at least the applicant’s
mother it should be regarded in law as a putative marriage the children of which would be legitimate. The difficulty that I have in deciding this question one way or the other arises from the fact that other persons besides the parties to these proceedings may have an interest in this matter and they have neither been identified nor joined as parties.
The respondent, who is a married man, has not previously sought from this Court a declaration that he is legitimate. Prima Facie, children of a void marriage are illegitimate (Isaacs A. J. in Thoka v Hoohlo CIV/T/29/77 unreported). That is the position in which the respondent stands today. Until he has established his legitimacy he can set up no rights of succession against the applicant.” (my emphasis)
By specifically using the words ‘until he has established his legitimacy…,’ the Judge, undoubtedly refrained from definitively deciding the question of the legitimacy of 1st plaintiff herein. All that he stated was that on authority, children of a void marriage are prima facie illegitimate. In other words, that is the position until the contrary can be established. I therefore do not accept the submission that was made on behalf of 1st defendant that the Court did determine the question of legitimacy in that case. Even the last paragraph of the judgment bears me out on this for it reads as follows:-
“In view of the forgoing, I am prepared to grant the applicant the prayers under (b) and (c) of her notice of motion.”
Prayer (a) being the one that sought that 1st plaintiff (respondent therein) be declared illegitimate was thus neither granted nor dismissed. On the submission by Mr. Ntlhoki that this decision was confirmed by the Mohale’s Hoek Magistrate Court, it is apposite to scrutinize the prayers sought in
the three consolidated matters to determine what the Court’s judgment effectively was.
In CIV/APN/86/01 the present 1st plaintiff (applicant therein) sought the following prayers against 1st defendant herein et al, in parts and insofar as is relevant to this issue:-
“2. …calling upon the respondents to show cause (if any) why;
The placement and/or inauguration of the first respondent as Principal Chief of Tajane … shall not be declared null and void.
The respondents shall not be directed not to proceed with the said inauguration/placement pending finalization of this application.
The applicant shall be entitled to succeed his father as the Principal Chief….
The purported marriage between the late Chief Nkhahle Mohale and Chieftainess ‘Mamonica … shall not be declared null and void and of no force and effect….
It shall not be declared that the valid marriage between the late Chief Nkhahle Mohale and Chieftainess ‘Mamonica was the customary marriage….”
In CIV/APN/190/01 the 1st defendant herein (applicant therein) filed an application against the present 1st plaintiff (1st respondent therein) et al, for an order in the following terms in parts and insofar as it is relevant to the present matter:-
Restraining 1st respondent from continuing to hold himself out as the Acting Chief of Pontseng…;
Restraining 1st respondent from interfering with the day to day administration of Pontseng , Mohale’s Hoek except by due process of law;
Directing 1st respondent to forthwith vacate the office of Chief of Pontseng, Mohales’ Hoek;
Directing 1st respondent to handover to applicant or his nominee all equipment and stationery in the office of Chief of Pontseng, Mohale’s Hoek;
In the third case,CC/31/02the 1st defendant herein (plaintiff therein) instituted an action for ejectment of 1st plaintiff herein (1st defendant therein) from the office of the Chief of Pontseng.
These are the three matters that were consolidated by consent with the two sides and heard by the Mohale’s Hoek Magistrate Court. In his judgment, the Magistrate made the following finding as gleaned from the record attached in the Court’s file:-
“Judgment granted in favour of the plaintiff Tlali Mohale with costs and all the prayers in CIV/APN/86/01 are granted and an order of ejectment is also granted.”
A proper reading of all the prayers as quoted above does not reveal any prayer having been sought for the determination of the legitimacy of 1st plaintiff herein by either party in all the three matters. It is my view that at best, it could be argued that some of the issues are related and might have been touched on in the pleadings and/or oral evidence merely because of their inter-connectedness. However, it cannot be correct to accept that that factor per se, translates to the issue herein having been definitely determined by the Court. I therefore do no accept the contention that the
Magistrate’s judgment confirmed that of Rooney J. inCIV/APN/109/81 as discussed above.
In addition, it is trite that Subordinate Courts do not have the power to make a determination on any person’s status. Matters of status fall exclusively under the jurisdiction of the High Court. At any rate, even assuming that the Magistrate Court did have such powers, I have already stated that the Judge in CIV/APN/109/81 unequivocally refrained from making a determination of the issue of legitimacy for the reason of non-joinder of interested parties
amongst others so that the Subordinate Court cannot correctly be said to have confirmed that issue. I accordingly find that the plea ofres judicata which Mr. Ntlhoki also based on the fact that CIV/APN/109/81was a judgment in rem was improperly raised herein.
In his discussion on what a judgment in rem presupposes, the learned Isaacs states as follows in Beck’s Theory and Principles of Pleading in Civil Actions at p163:-
“Judgmentsin rem affect either the status of individuals or their property. So far as concerns persons domiciled within the jurisdiction or property
situated therein a judgment in rem of a court of competent jurisdiction is conclusive against all the world in respect of what the judgment settles as to the status of such persons or property or as to the right or title to the latter and as to whatever disposition it makes in regard to the disposition of the property or even to the proceeds thereof. When an issue is raised in an action which was previously determined by a judgment in rem there is no difficulty whatever presented by the plea in abatement ofres judicata.”
I have already shown that the legitimacy of 1st plaintiff herein was not determined by the Court, therefore in so far as this particular issue is concerned the judgment of the Court is not one in rem noris it one in personam. In other words, it is not a judgment with respect to that specific issue even inter partes.
A valid plea ofres judicata has to satisfy three essential requisites, namely:
(i) The prior action must have been between the
same parties;
(ii) The prior action must have concerned the same
subject matter;
(iii) The prior action must have been founded on
the same cause of action.
In this regard see Isaacs (Supra) at p 164 – 165, the case of Sechele Supra) quoted to this Court and other authorities referred to therein.
In CIV/APN/109/81 the plaintiff was ‘Mamonica whereas the defendant was the present 1st defendant. Clearly, one of the parties was not the same as in casu so that the first requisite falls off. In the other three cases which were consolidated and heard by the Mohale’s Hoek Magistrate the parties were the same although others who were found to have an interest were joined. However, I have already stated that although the prayers might have flown from the same facts, none of the prayers and/or issues were on the legitimacy or otherwise of 1st plaintiff herein which would be the subject matter properly so called.
For these reasons, it is my finding that the special plea of res judicata was incorrectly raised in the present case. Consequently, this Court cannot be and is not functus officio in that regard.
Mr. Ntlhoki also made the submission that 1st plaintiff herein failed to take prompt action which factor leads to the dismissal of a claim where there is unreasonable delay and manifest prejudice to other parties. To this end he referred this Court to the case of Molapo vs Molefe LAC (2000 – 2004) 771 at 783 – 784 and that of Khang vs Mokuku LAC (2000 – 2004) 600 at 605.
In the Molapo Case (Supra), the appellant had amongst others failed to take prompt action to appeal the judgment of the Court a quo in a dispute over allocation
of land having discovered the overlapping of the boundary of his claimed land and that of the respondent. On the aspect of delay, the learned Ramodibedi JA (as he then was) stated as follows in parts and in so far as it is relevant to this issue at p 783 - 784 of his judgment:-
“In my view the appellant’s case further fails on the point of delay. The point arises in this way: in paragraph 20 of his founding affidavit the appellant alleges that the survey he is challenging took place in 1982. That is a period of 19 years before he instituted the present proceedings in 2001. Although he conveniently omits to give the date when he first became aware of the survey in question, he does provide useful information…..
It is self-evident therefore that, at the very least by 1992 the appellant was already aware that this site was disputed and yet he did nothing for 9 years.
On his own version, however, he did nothing from 30 March 1999 until May 2001 when he launched the present proceedings. That in my calculation is a delay of more than two years and, given the history of the matter, I have no hesitation in coming to the conclusion that it amounts to unreasonable delay.”
Although the issue of delay was considered at the appeal stage, the Ramodibedi J’s comments were in reference to the averments contained in the founding affidavit. In my opinion, the question and effect of unreasonable delay was not confined to the stage of appeal.
In the present case, the judgment of Rooney J which was never appealed and in which the 1st plaintiff herein was given the leeway to institute proceedings for a declarator that he is legitimate was delivered in 1982. He however only instituted the present action in 2004 after a period of twenty-two (22) years since the judgment was delivered in 1982. This is undoubtedly a very unreasonable delay especially given the fact that at some stage he did institute such an action, only to withdraw it before the matter could be determined though I might add that his actions were already belated even at that time i.e. in the year 2000 almost nineteen (19) years later.
In the meantime, he and 1st defendant herein engaged in lengthy litigation which dealt with a lot of issues but that of legitimacy. I find this quite strange to say the least. One would have thought that the 1st plaintiff would have taken advantage of the Judge’s remarks inCIV/APN/109/81 that; ‘until he has established his legitimacy he can set up no rights of succession against the applicant.” For some unfathomable reason, he failed to do so but contented himself with litigating on every other issue but that crucial one.
The issue of delay was also dealt with by the Court of Appeal in the case of Rev. Khang v Bishop Mokuku (Supra) wherein at page 605 of the judgment, the Court stated as follows:-
“Finally there is the question of delay – a delay of eight years. The prejudice to the respondents is manifest both from the judgment and the legible parts of the record. In review proceedings the proceedings must be brought within a reasonable time.”
While the Court therein was specifically referring to matters that are brought on review, it is my opinion that the same principle is equally applicable to the present matter for the reason that it had already been placed before the Court and the 1st plaintiff had been advised to take action to have his status declared by a Court of law before he could even make other claims with respect to his rights of succession to the chieftainship of Pontseng. He failed to do so for a period spanning twenty-two (22) years.
It is my view that the resultant prejudice to the 1st defendant who has been placed and gazetted as the rightful person to take over the office which would be occasioned by such a delay cannot be disputed. It is my view that noone can be blamed for coming to the conclusion that the 1st plaintiff herein had practically abandoned his right (if any) as a result of this delay. See also the Court’s remarks on the issue of unconscionable delay in the case of Monyane v Manager of the Mafeteng LEC Primary School and Another LAC (2000 – 2004) p364 at 366 (C).
It is for the reason of the unreasonable delay that I find that 1st plaintiff’s application ought to fail with costs and I accordingly so order.
N. MAJARA
JUDGE
For plaintiffs : Mr. K. Mosito
For defendants : Mr. Ntlhoki
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