IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/A/29/2010
In the matter between:
MAKHAOLA MAKOANYANE MOLOMO Appellant
MOLOMO SOLOMON MOLOMO 1st Respondent
THE PRINCIPAL CHIEF OF PHAMONG 2nd Respondent
THE DISTRICT ADMINISTRATOR 3rd Respondent
THE MINISTER OF LOCAL GOVERNMENT
AND CHIEFTAINSHIP AFFAIRS 4th Respondent
ATTORNEY GENERAL 5th Respondent
Delivered by the Hon. Mr T. E. Monapathi
On the 10th Day of August 2011
1. This is an appeal arising out of an application before the Subordinate Court for the District of Mohale’s Hoek. It was argued in this court by Mr Mosito for Appellant that succession to “chiefly office” was not at the heart of this dispute, in that the prayers sought were not about succession. On the other hand, Mr Mohau for Respondent contended that in every sense the above prayers were about succession “recognizing the headman of Ha Nkhetheleng”, which matter correctly stood out for resolution by the court a quo. Counsel felt that the learned Chief Magistrate (Mrs Nthunya) had properly granted the prayers sought.
2. Mr Mosito’s case was that the court had further and by misdirection relied on issues which were not raised or pleaded by the parties to the litigation. Counsel felt that it was accordingly in error that the learned Chief Magistrate (Mrs Nthunya) had ordered that “the application is therefore granted as prayed”.
3. Other issues such as costs were also raised. The above issues were the more important issues.
4. In the court a quo the following orders were sought, namely:
a) The Respondents herein shall not be interdicted forthwith from installing the first Respondent as Chief of Ha Nkhetheleng Mekaling pending the outcome hereof;
b) The Respondents shall not be directed to recognize and install the applicant as the Headman of Ha Nkhetheleng, Mekaling Mohale’s Hoek;
c) The First Respondent and the rest of the Respondents only in the event of their opposition hereto, shall not be directed to pay the costs hereof;
d) The Applicant shall not be granted further and/or alternative relief as this court deems fit;
e) That prayer 1 (a) operate with immediate effect as an interim interdict;
f) Further the notice of motion was amended to include the following prayers;
g) Amending the notice of motion in CC 93/2009 to incline the following additional prayers;
h) Setting aside the presentation and installation of Makhaola Makoanyane Molomo as the chief of Ha Nkhetheleng, Mohale’s Hoek District;
i) Directing Makhaola Makoanyane Molomo to handover to the Applicant or anyone acting on his behalf the office stamp and all property that belongs to the office of Chief of Ha Nkhetheleng;
j) Directing the Respondents herein to pay the costs hereof in the event of their opposition hereto; (my emphasis).
5. The Appellant sought to dispute First Respondent’s right of succession on the following grounds, the Appellant had acted as headman of Ha Nkhetheleng for 21 years. The Appellant did not know the First Respondent herein. There was a case pending in the High Court wherein Appellant was seeking to be installed as headman of Ha Nkhetheleng.
6. When summing up the learned magistrate had proceeded as follows:
“To sum up the application before me, the issue to the determined is whether the Applicant and not the First Respondent is the right person to succeed in the office of the Headman of Ha Nkhetheleng, Mekaling Mohale’s Hoek. It is also common cause that when Applicant heard about this development he approached this court to have the Respondents interdicted from recognizing and installing First Respondent as the Headman of the village which of Ha Nkhetheleng. Applicant did obtain an interdict which was served upon the Respondents but they nonetheless went ahead to install First Respondent as Headman of that village, hence the supplementary Heads of Argument.
Nowhere in the papers do the Respondents deny that the Applicant is the rightful successor to the chieftainship of the village of Ha Nkhetheleng by virtue of being the sole surviving relative of the late chief Nkhetheleng who is the elder brother to Applicant’s grandfather.” (my emphasis).
7. Mr Mosito submitted that the remainder of the judgement clearly revealed that what the learned magistrate did was to determine the issue of succession to the chieftainship of Ha Nkhetheleng. That it was in those circumstances that the learned magistrate came to the decision that the families decision to appoint a successor had not been consistent with the provisions of section 10 of the Chieftainship Act 1968. As a result she erroneously decided to grant the application as prayed.
8. Counsel argued further that as clearly appeared from the prayers in the Notice of Motion, the issue before the learned magistrate was not one as to the right to succeed. It related to issues around interdicts aimed at preventing presentation and installation of the Appellant, as well as the handing over to the Applicant of the office stamp and all other property belonging to the office of chief of Ha Nkhetheleng.
9. In relation to the first ground, as Applicant’s Counsel submitted, the legal position was that, in several of its decisions the Court of Appeal has deprecated the practice of granting orders which are not court for by the litigants. He referred to Nkuebe v Attorney General and Others 2000-2004 LAC 295 at301 B-D; Mophato oa Morija v Lesotho Evangelical Church 2000-2004 LAC 354. In the latter case the court per Grosskopf AJ said the following at page 360:
“The appellant’s first ground of appeal was that the court a quo erred in making the above order when neither the Appellant nor the Respondent had asked for it. Counsel for the Respondent, on the other hand, submitted that the court a quo was fully entitled to grant such an order since the notice of motion included a prayer for further and/or alternative relief.
I do not agree. The relief which a court may grant a litigant in terms of such a prayer cannot in my view be extended to relief which he has never asked for and which is not even remotely related to what he has asked for. It is equally clear that the order was not granted at the request of the Respondent and it does not appear on what grounds the court a quo could order the Respondent.”
10. Similarly, as submitted further the Court of Appeal had in many decisions deprecated the practice of relying on issues which are not raised or pleaded by the parties to litigation. See Frasers (Lesotho) Ltd. V Hata-Butle (Pty) Ltd 1995-1999 LAC 698; Sekhonyana and Another v Standard Bank of Lesotho Ltd. 2000-2004 LAC 197; Theko and Others v Morojele and Others 2000-2004 LAC 302; Attorney General and Others v Tekateka and Others 2000-2004 LAC 367 at 373; ‘Mota v Motokoa 2000-2004 LAC 418 at 424 and National Olympic Committee and Others v Morolong 2000-2004 LAC 449. It was therefore wrong for the learned Chief Magistrate to have determined the issue of the right to succeed to the Chieftainship of Ha Nkhetheleng Mekaling when no party had asked for it. The learned magistrate therefore had no competence to determine an issue which was not before her.
11. The second ground was that, the learned Chief Magistrate erred and/or misdirected herself in holding as she did that there was an interim interdict which interdicted the Respondents and which was served upon the Respondents interdicting them from installing appellant herein as headman of the village of Ha Nkhetheleng when no such interim interdict ever existed. A perusal of the record would reveal that there was no such an interim interdict. In my view even if this had been the case, the court a quo had dealt fully with the substantial prayers, so if her decision was correct this complaint was inconsequential.
12. As submitted next was that the learned magistrate erred and/or misdirected herself by making an order as to costs on the basis of the papers before her. The complex of rules governing costs comprises four dimensions: (1) the traditional principles applicable to costs orders (the first of which was that an award of costs is in the discretion of the court of first instance) and their relationship: (2) the requirement that the court’s discretion be exercised judicially: (3) the test for interference in the discretion of the court a quo: and (4) closely related to this, the characterization of the nature of the judicial discretion to award costs in both the court a quo and court of appeal and the underlying rationale thereof. A closer examination of the rules and principles within each area was required. This was not pursued most wisely.
13. Following on above was that; as submitted, the two principles which have governed costs orders in our law since the earliest time are, firstly, that the court of first instance has a judicial discretion to award costs and secondly, that costs follow the event in that the successful party is usually awarded costs. The learned magistrate did not do this. She erred and/or misdirected herself by making an order as to costs on the basis of the papers before her, moreso because none of the parties had pleaded the issue or prayed for it. This should warrant the interference of this court. The test for interference in the discretion of the court a quo was foreshadowed in the dictum of De Villers JPin Fripp v Gibbon 1913 AD 354, 357. Where he held that if the presiding officer indeed weighs all issues in the case and makes an order as to costs that is fair and just between the parties
“and does not act capriciously or upon any wrong principle, I know of no right on the part of a court of appeal to interfere with the honest exercise of his discretion.”
The learned magistrate did not weigh the issue in the case and made an order as to costs that was fair and just between the parties. This was not argued most wisely.
14. It was therefore prayed that the appeal be upheld with costs.
15. In response Mr Mohau had submitted as follows: firstly, it was significant that it was not in dispute that there was a vacancy in the headmanship of Ha Nkhetheleng that needed to be filled. Indeed, the dispute before the court a quo had been about nothing else but the right of succession to the headmanship of Ha Nkhetheleng. The affidavits filed in support of the application extensively canvassed, almost exclusively, that issue of succession and why the First Respondent herein had had a better title to succeed than the Appellant. Even the prayers sought were about who was entitled to “recognition” as headman of Ha Nkhetheleng and who was not.
16. Again it was accordingly submitted that the court a quo granted an order the granting of which had been canvassed in the papers and which was not substantially different from that sought in the notice of application. The Appellant could thus not suffer any prejudice from granting the order in those terms. See Mposho v Mofammere and Others LAC 2007-2008 127 at 129 (1) and Mangamthi v Mbangamthi LAC 2005-2006 295 at para 9.
17. It was submitted that this ground on whether the court had erred in its holding about the interim order had had absolutely no merit as indeed, there was an interim court order which had been served. In any case, appeals were directed at the decisions of the court and not their reasons. Thus even if the court a quo had erred in saying that there was an interim court order which had been served upon the Respondents, that could not vitiate the orders granted by the court as on the facts and law; those orders are unchallengeable. See Lefosa v Mooki and Others LAC 1995-1999 at557 H where Gauntlett JA aptly stated that:
“This appeal proceeds on the mistaken premise that the appeal competently lies against findings in a judgement. This is not so. It is trite that an appeal only lies against a judgement or order, in the sense analyzed in Dickinson and Another v Fisher’s Executors 1914 AD 424 at 427.”
18. This answered though indirectly the most serious question whether in the matter of her decision the learned magistrate could have been wrong. I agreed with Mr Mohau that since her decision could not be faulted her orders were indeed unchallengeable as is made clear below. A judgement and an order were respectively described in the Dickinson’s case (supra) as “a decision of a court upon relief claimed in an action” a similar decision upon relief claimed not by action but by motion, petition or other machinery recognized in practice. This appeal ought to fail, in my finding.
19. It was trite that ordinarily costs follow the result. There were no circumstances in the instant case that justified a departure from this general principle when it cannot be said that the First Respondent herein had no right to approach the court in order to protect his rights from being usurped by the Appellant herein. See Lefosa v Mooki and Others LAC 1995-1999 551 at561 D.H.
20. Consequently this appeal fails with costs to the Respondent.
T. E. Monapathi
For Appellant : Mr Mosito
For Respondents : Mr Mohau
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