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 25TH 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
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