IN
THE HIGH COURT OF LESOTHO

CIV/T/56/2009

CC: 100/2000

In the matter
between;

NONYANA LEBEKO
…..........................................................................................APPLICANT

AND

SETHO
MOREMOHOLO
…..................................................................................RESPONDENT

JUDGMENT

DELIVERED BY
THE HON. MRS JUSTICE K.J. GUNI

ON THE 25^TH
DAY OF AUGUST, 2010

The
parties in this matter have approached this court in terms of a
special case for the adjudication of the court. The two parties
have
been to the Subordinate Court in respect of the certain residential
site. Each party claims to be the rightful owner of the
site in
dispute.

They
approached the MASERU subordinate court at two different times. They
also used two different methods of instituting legal proceedings
at
that court.

Being
a creature of statute, the subordinate courts must operate strictly
within the perimeters set out in the empowering statute
- SUBORDINATE
COURT ACT 1988. This said Act is still in force. The two parties
in this matter, did not only go by different routes to the MASERU
Subordinate
Court, they also went there at two different times.

Considering
the case numbers shown in the special case for adjudication by this
court, the respondent approached MASERU MAGISTRATE’S COURT
by way of an application proceedings – commonly known as NOTICE
OF MOTION proceeding. The respondent in this matter was
the applicant in CC/240/98. He sought and obtained a declaratory
order to the effect that he
is the rightful owner and possessor of
the site in question.

Subsequently,
as the case number indicates, the applicant instituted an action
proceedings in CC/100/00 against this respondent. He was
successful in that action because he obtained judgment against this
respondent. They have now approached
this court; each one is holding
the MASERU SUBORDINATE COURT judgment made in his favour by the same
court - SUBORDINATE COURT
sitting in MASERU in respect of the same
subject matter, the unnumbered residential site in dispute.

In
the Motion proceedings in which the respondent sought and obtained a
declaratory order that he is the rightful owner and possessor
of the
site in question, there is no indication as to whether or not the
matter proceeded unopposed or opposed. There is no indication
as to
whether or not an appeal was noted and abandoned. From Mr Ntlhoki’s
argument when asked why an appeal was not noted
instead of
instituting a new and different action, it is obvious an appeal was
never considered.

Mr
Ntlhoki pointed out that the SUBORDINATE COURT had no power to
entertain and determine an application seeking a declaratory order.
The SUBORDINATE COURT had no power to make such an order.
Since the SUBORDINATE COURT had no power to act in the manner
it did, the result was a nullity. It was not a valid and appealable
order. The powers of the
SUBORDINATE COURT are set out in Part
V in respect of civil jurisdiction.

There
is nowhere in the said ACT, where the subordinate court is empowered
to make declaratory orders. The Subordinate Court cannot
competently
make a valid declaratory order – challenging by an appeal an
invalid order would tantamount to lending it the
validity and
finality of a competent court order.

The
applicant launched a civil suit by way of an action for ejectment
against the occupier of that site in dispute. This was in
terms of
SECTION 17(c) SUBORDINATE COURT ACT 1988. The result was a
valid final and appealable judgment. The order obtained under the
said action must be and it is a valid and competent
order. The
respondent appealed. This respondent noted an appeal against it, and
rightly so because that was the best way of challenging
that judgment
and order. But unfortunately he did not pursue the appeal to its
finality. As a result that appeal lapsed –
leaving the
Subordinate Court judgment as the final valid judgment in the matter.

In
contempt proceedings, it is essential to prove that the respondent
who is accused of being in contempt was aware that there is
a valid
and competent court order which he is

alleged
to be in contempt of. If the order was not a valid and competent
order of the court, it does not qualify to be described
or defined as
a final order of court. But every order of the court must be
respected and be complied with even if it is invalid.
The respondent
can only challenge its validity but not by disobedience of the said
order.

The
parties must be given an opportunity to show before a competent court
who is the rightful owner of the disputed site. In my
view the rights
of the parties must be determined properly. This can be done in an
action, where full blown trial will take place,
with evidence to show
the court who is the rightful owner of the disputed site. The matter
cannot rest on mere technicalities.
Therefore the order I am making
is that the case should be started de nove before the
competent court by way of an action.

K.J.
GUNI

JUDGE

For
Applicant: Mr. Ntlhoki

For
Respondent: Mr. Letsika