IN
THE HIGH COURT OF LESOTHO

CIV/T/525/2004

In
the matter between:-

MOPELI
MOHALE 1^ST
PLAINTIFF

‘MAMOPELI
MOHALE 2^ND
PLAINTIFF

and

TLALI
MOHALE 1^STDEFENDANT

ATTORNEY
GENERAL 2^ND
DEFENDANT

JUDGMENT

Delivered
by the Honourable Madam Justice N. Majara

on
the 28^th
November 2008

Plaintiffs
approached this Court seeking a declarator
to the effect that 1^st
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, 1^st
plaintiff avers that he was born of a customary union between 2^nd
plaintiff and the late Chief Nkhahle Mohale.

Having filed a
notice of intention to defend, 1^st
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 2^nd
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 in
CIV/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, 1^st
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 1^st
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
1^st
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 1^st
plaintiff has been settled by the Court and that above all, previous
decisions on the issue of legitimacy or otherwise of 1^st
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 1^st
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 2^nd
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,
1^st
defendant’s mother, instituted an application in this Court
against 1^st
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, 1^st
plaintiff herein launched another application against 1^st
defendant and five others CIV/APN/383/00
wherein he was seeking a declarator that the marriage between 2^nd
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. 1^st
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 1^st
plaintiff yet again instituted another application before this Court
namely, CIV/APN/86/2001
against 1^st
defendant herein, the Minister of Local Government and the Attorney
General. In CIV/APN/86/2001
the 1^st
plaintiff herein was seeking amongst others, that the placement and
inauguration of the 1^st
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,
1^st
defendant herein had also instituted two cases namely, CIV/APN/190/01
against 1^st
plaintiff and the Attorney General before this Court and another one
against the same parties
in
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 1^st
defendant’s mother) was granted only the second prayer and
costs. The Court therein came to the finding that the purported

marriage between the 1^st
plaintiff’s mother i.e. 2^nd
plaintiff herein, and the late Chief Nkhahle Mohale was null and void
ab
initio.
Rooney J. further did not accept the assertion that 2^nd
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 1^st
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 1^st
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 1^st
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 1^st
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 1^st
plaintiff (applicant therein) sought the following prayers against
1^st
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;

1. 
   The placement
   and/or inauguration of the first respondent as Principal Chief of
   Tajane … shall not be declared null and
   void.

   
   

2. 
   The
   respondents shall not be directed not to proceed with the said
   inauguration/placement pending finalization of this application.

   
   

3. 
   The applicant
   shall be entitled to succeed his father as the Principal Chief….

   
   

4. 
   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….

   
   

5. 
   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 1^st
defendant herein (applicant therein) filed an application against the
present 1^st
plaintiff (1^st
respondent therein) et
al,
for an order in the following terms in parts and insofar as it is
relevant to the present matter:-

1. Restraining
   1^st
   respondent from continuing to hold himself out as the Acting Chief
   of Pontseng…;

   
   

2. Restraining
   1^st
   respondent from interfering with the day to day administration of
   Pontseng , Mohale’s Hoek except by due process of law;

   
   

3. Directing
   1^st
   respondent to forthwith vacate the office of Chief of Pontseng,
   Mohales’ Hoek;

   
   

4. Directing
   1^st
   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/31/02
the
1^st
defendant herein (plaintiff therein) instituted an action for
ejectment of 1^st
plaintiff herein (1^st
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 1^st
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. in
CIV/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 of
res
judicata
which Mr.
Ntlhoki
also based on the fact that CIV/APN/109/81
was
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:-

“Judgments
in
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 of
res
judicata.”

I have already
shown that the legitimacy of 1^st
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 nor
is
it one
in personam.
In other words, it is not a judgment with respect to that specific
issue even inter
partes.

A valid plea of
res
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 1^st
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 1^st
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 1^st
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 1^st
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 1^st
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 1^st
plaintiff would have taken advantage of the Judge’s remarks in
CIV/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 1^st
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 1^st
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 1^st
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 1^st
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