IN THE HIGH COURT OF LESOTHO
In the matter between:- CIV/APN/159/2008
TUMO TLELAI APPLICANT
AND
MINISTRY OF LOCAL GOVERNMENT 1ST RESPONDENT
(REGISTRAR OF DEEDS)
MINISTRY OF LOCAL GOVERNMENT 2ND RESPONDENT
(COMMISSIONER OF LANDS)
ATTORNEY GENERAL 3RD RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice M. Mahase
On the 9th SEPTEMBER, 2011
Civil Procedure – Practice – Land Act 1979 – Registrable Title – failure by government official to register title – Objection to registration of title to land – when, how same to be raised – Effect of failure to raise objection within a specified time – Deeds Registry Act – Section 5 (b) -
This is an application in which the applicant has asked this court to grant him an order compelling the respondents to register, in the applicant’s names, certain plot No15351 – 001 situated at Ha Ramokotjo- Mokunutlung, Qeme Ha ‘Mantsebo.
It must be mentioned that this matter has been pending before this Court since the 9th March 2009. There are no reasons readily clear from the various court minutes why that has been so.
After a number of postponements since then, the application was argued before this Court on the 23rd August 2011. Parties herein were represented by Messrs Mots’oari and Sekati respectively.
In a nutshell, the facts of this case are that sometime in 2007, the applicant applied to the 2nd respondent to register his right to the land herein described above. It is the applicant’s case that he had followed to the letter all lawful procedures, protocols and requirements as provided for in the law(s) governing such procedures and protocols.
That ultimately this piece of land was allocated plot number 15351.001 on the cadastral map. Subsequently a lease in respect of this plot of land was prepared by the 2nd respondent after all notices inviting members of the public who might have had any objections to such an allocation were invited to do so.
- There was no such objections raised by any member(s) of the public in the stipulated period for such objections to be raised.
- That ultimately and in the absence of any such objection having been raised, the 2nd respondent transferred to the 1st respondent all the necessary documentation for purposes of registering rights and or title to that plot of land in the names of the applicant.
However, and to date, the 1st respondent has not effected such registration into the names of the applicant much to the applicant’s prejudice.
The applicant followed up on the matter and he approached the 1st respondent who then verbally informed the applicant for the first time that an objection to that application had since been raised and received by his (1st respondent’s) office. This was in October 2007. Subsequently, applicant’s counsel wrote to the 1st respondent annexure “TT1”.
This is self explanatory and it appears at page 18 of the notice of motion. There was then an exchange of correspondence between the respective counsels’ office on this issue. All of such correspondence is annexed to the applicant’s founding affidavit as being annexures TT2, TT3 and TT4. These are all self explanatory.
I pause to observe that the purported objection upon which the first respondent allegedly acted in refusing to register the lease or title in the applicant’s names is contained in a letter dated the 15th October 2007; address and copied to the following people:-
- The Registrar of Deeds
- Commissioner of Lands
- Attorney General and
- Tumo Tlelai
It is the applicant’s case that to date no action has ever been taken by the 1st respondent to return to the 2nd respondent’s offices the documents in question for the 2nd respondent to do that which he/she is required by law to do; namely to refer any dispute to title over this plot of land to the land tribunal. It is the applicant’s case that the refusal by the 1st and 2nd respondents to register the title or rights over that plot of land in his names is malicious, capricious; and highly prejudicial to him for reasons he has explained at paragraph 5 of his founding affidavit.
It is the applicant’s case that the refusal by both the 1st and 2nd respondents to register title or rights to him, and failure to also refer any dispute to the appropriate body or the land tribunal for a formal arbitration is invalid and is not supported by law.
This; it is observed by this Court the respondents; in particular the first respondent has refused and failed to do on the basis of the alleged objection which he says has been raised by one chief Masupha Seeiso.
In particular, in the last paragraph of annexure “TT2”; the first respondent states that there are conflicting claims on the same plot, but he has not followed proper, lawful procedures designed to resolve such matters. He instead says he will proceed with the registration of same only until when the matter will have been resolved by the Courts of law.
In a subsequent letter, written a day after the first respondent had written annexure “TT2”, the first respondent reiterates his stance on the issue pertaining to registration of this plot of land in the names of the applicant. This time around, the first respondent refers counsel of applicant to the provisions of section 5 (b) of the Deeds Registry Act.
The applicant has challenged the legality and the basis upon which the first respondent has refused to register rights to and or title over this plot in his names. In a nutshell he argues that the alleged objection raised on behalf of Chief Masupha Seeiso is contrary to the provisions of section 23 (1) of the Land Act No. 17 of 1979 in form and content. It is the applicant’s case that chief Masupha Seeiso on whose behalf an objection to the said registration has been raised, should have filed in a proper/appropriate “Form T2” as is provided for in the relevant legislation; to wit an adverse Land Claim Form which should have been addressed to the clerk, of the Land Tribunal c/o the High Court/Subordinate Court.
To date no such form has been filed nor submitted to the clerk of the land tribunal. In other words, some four years since an alleged letter of objection was written and since the first respondent wrote annexures “TT2” and “TT3” no action whatsoever has been taken by or on behalf of chief Masupha Seeiso to rectify a clear mistake as to form and content of his alleged objection to the registration of this plot of land into the names of the applicant.
It is not the first respondent’s case that the applicant has failed to follow the proper procedures nor that he has failed to pay the requisite fees for registration of title or rights over that plot into his names. In fact it is a matter of common cause that applicant has paid a substantial amount of fees; to the tune of plus M43,000.00 for such registration. That sum of money has not been refunded to applicant. It is still with the respondents.
It is further not the first respondent’s case that the format and content adopted and used by counsel for chief Masupha Seeiso is lawfully correct. The fact that this objection has not been raised in terms of the provisions of section 23 (1) of the Land Act (supra) this has also not been denied by any of the respondents in this case. This therefore should be and is admitted as being correct and in favour of the applicant.
Vide Plascons Evans Paints LTD v. Van Riebeeck Paints (PTY) LTD 1984 (3) 623. There is also, no reasons stated nor is there an iota of evidence why it is alleged that this plot of land belongs to chief Masupha.
It is further noted that there is no formal application filed by or on behalf of chief Masupha Seeiso in which he has personally sort to be joined in this application. Instead, and without any formal mandate nor authority from the said chief Masupha authorizing the first respondent to do so, the first respondent has attested to an affidavit for or on behalf of the said chief. This, with the greatest respect is an abuse of court process and of an office of the first respondent.
The first respondent is a government official about whom the applicant is complaining. He is the very official who has, for about four years to date, been holding onto the documents relating to the registration of a title and to the transfer of rights on this plot of land to the applicant in total disregard of the fact that, strictly speaking there is objection raised by the said chief Masupha Seeiso.
He (first respondent) has nowhere in these letters addressed the issues raised by and on behalf of the applicant as to the none compliance with the provisions of the law by Chief Masupha Seeiso.
A proper reading of the provisions of section 23 of the Land Act (supra) will and clearly shows that there is no adverse claim lodged as contemplated by that Act of Parliament by and or on behalf of the said chief. This probably explains why he has not taken any steps at all to pursue that objection by any means to date.
The first respondent argues that in fact he has invoked the provisions of the Deeds Registry Act; section 5 (b) thereof – to wit see annexure “TT3” dated the 26th October 2007. This annexure was written just a day after annexure “TT2” was written. The irony of it all is that these two annexures are mutually destructive as they are inconsistent in the following respects;
- In annexure “TT2” the one and only reason why the first respondent informs the applicant why he (first respondent) cannot proceed with the registration in question, is because of the alleged “objection” lodged by or on behalf of Chief Masupha Seeiso.
- However, first respondent, in annexure “TT3”, also says the reason or the basis for such a refusal to register this plot in the names of applicant is because there are conflicting claims to the same site and on the other hand he tries to also hide behind the provisions of the Deeds Registry Act (supra).
The question now to be answered, is on which law has the first respondent based his refusal to register title and rights over this plot in the names of applicant? First respondent does not even say in which particular respect/regard the alleged objection is valid.
It is not the first respondent’s reasoning that the documents which have been submitted to him for registration of title and rights over this plot on behalf of the applicant are invalid, neither does he say the applicant has failed and or that he has not submitted proper documentation to the second respondent upon which he cannot act as provided by law.
The appropriate provisions of section 23 (1) of the Land Act (supra) makes provisions for lodgment of an adverse claim within one month from the date of publication of the notice in the Gazette. Such a claim is to be lodged before the Land Tribunal. This has not been done by and or on behalf of Chief Masupha Seeiso. The said section 5 (b) of the Deeds Registry Act (supra) makes provision for duties of the Registrar of Deeds. He must however exercise his duties according to the appropriate application laws. In the instant application, Chief Masupha Seeiso has flouted laws pertaining to the lodging of an adverse claim, but the first respondent purports to act upon such illegality. This is unacceptable and an abuse of power.
It has been submitted on behalf of the respondents that the applicant has failed to join Chief Masupha Seeiso even though applicant is well aware that the said chief has raised an objection to that registration.
I have already dealt with the above issues as well as with the lack of mandate or authority for first respondent to have raised this issue for and or on behalf of Chief Masupha Seeiso. Clearly the first respondent has acted ultra vires his official duty by purporting to act on behalf of this Masupha Seeiso. Vide Lesotho Human Rights Alert Group v. The Minister of Justice and Human Rights and 2 others 1991 – 1996 LLR (1) page 350.
Chief Masupha has not deposed to any affidavit in which he supports the first respondent thereby showing his interest in this application. There is no indication that Chief Masupha has mandated first respondent to act on his behalf. Counsel for the respondents has not denied that formal procedure for lodging an objection has not been following by Mr. S. Phafane K.C.
In fact both counsel have joined issue on the fact that a letter and not a formal format as prescribed by section 23 (1) of the Land Act (supra) has not been lodged by or on behalf of Chief Masupha Seeiso. In fact, and to be precise, Mr. Sekati for the respondents is on record before this Court as having argued that whether or not that letter is a proper format is not an issue.
He submitted that the issue whether or not the said Chief Masupha has properly lodged an objection; is neither here nor there. He argues that what is important is that the said Chief has not been joined and as such he cannot be heard. In other words, in so far as Mr. Sekati is concerned, the fact that the alleged objection filed on behalf of Chief Masupha has not lawfully and properly so been lodged is of no consequence, and this should be ignored. What matters is that the Chief be joined in this application.
This is a mind boggling submission being put forward by counsel for respondents and by an official in the Deeds Registry office who both do not have any mandate nor authority to act on behalf of the said Chief Masupha Seeiso. In fact as I see it, both and all counsel have to adhere to the provisions of the law in the execution of their official duties.
The above, coupled with the fact that these two officials are not even the authors of that letter which is incorrectly being presented as a formal objection contrary to the clear provisions of section 23 (1) of the Land Act (supra) defies logic – (This I say with the greatest respect.
These officials, viz – counsel for the respondents and the Registrar of Deeds (the author of annexures “TT2” and “TT3”) have not said in which capacity they act or they purport to act or to speak for Chief Masupha nor do they allege that they are acting in their capacities as counsel for chief Masupha. (This is said for emphasis).
It is noted that the deponent to the opposing affidavit, Ts’eliso Makhaphela, has, at paragraph 1 described himself as a male Mosotho adult and first respondent herein and as such entitled to made this affidavit on behalf of all the respondents. With the greatest respect, the first respondent cannot in law and correctly speaking depose to an affidavit on behalf of and or for the second respondent because:-
- He is himself a government official who is represented in this proceedings by the third respondent. Nothing confers powers upon him to represent another government official, (the second respondent) in a case where they are both sued in their official capacities in their respective offices. The first respondent has no mandate nor authority to depose to an affidavit on behalf of the second respondent.
Indeed the first and second respondents have distinct duties prescribed by the relevant laws. None of them is empowered to usurp the powers and or duties of the other.
I note that it is not very clear from annexure “TT2”, which court the first respondent refers to. One is not so sure as to whether or not the first respondent has a right or power to dictate, as he has done in this annexure “TT2” as to which route an aggrieved party should follow or take. What is clear from the provisions of section 23 of the Land Act (supra) is that the starting point for lodging an adverse claim, is that such a claim has to be directed to the Clerk of the Land Tribunal. The decision of the Land Tribunal is appealable to the High Court and not the other way round. Vide section 23 (2). The Commissioner referred to thereat is the Commissioner of Lands and not the Registrar of Deeds – vide the interpretation section 2 of Land Act (supra)
In the instant application there is no claim lodged for the simple reason that all prescribed and known procedures for lodging an adverse claim have not been followed. Even assuming without conceding that such a claim has been properly lodged, the claimant or the alleged claimant has not prosecuted his claim for over to four years now. For that reason the applicant is exercising his rights by having sort the intervention of this Court.
I wish to note further that for the simple reason that it is undisputed that no advance claim has been properly or lawfully lodged, the provisions of section 23 (4) of the Land Act (supra) come into play. The submission that for the none lodging of or for the illegality in lodging that adverse claim, by the said Chief Masupha; then the applicant is entitled to have that plot transferred and registered in his names holds water. The applicant has correctly invoked the provisions of this subsection in having lodged this application. In fact, the subsection automatically conveys rights to land where no claim has been lodged.
The first respondent is not an appropriate government official designated to execute the duties of the second respondent as envisaged by the provisions of section 23, 75 (2) (a) and (7) of the Land Act (supra). His refusal to effect a transfer of title or rights to applicant in respect of the plot of Land in question is not supported by nor is it based on any compliance with the provisions of any relevant statutory laws and procedures.
Indeed it is highly procedurally irregular for the first respondent to refuse to effect the transfer of rights in this plot to applicant on the basis of an irregularly and unprocedurally lodged claim or objection submitted on behalf of chief Masupha Seeiso.
That alleged objection to registration of the said plot is accordingly declared null and void. This Court takes judicial notice of the fact that these are a number of cases pending and or already finalized before this court in respect of this particular land but nowhere in any of them has the said chief Masupha demonstrated any interest of any nature in such cases. These are CIV/APN/86/2009, CIV/APN/297/2009 AND CIV/APN/19/2011. This is despite his unsubstantiated claim that he was allocated this plot of Land in 1979.
In the premises, the first respondent is ordered to have rights and title over this plot No15351 – 001 situated at Ha Ramokotjo (Mokunutlung, Qeme, Ha Mant’sebo) transferred and registered into the applicant’s names within a period of 30 (thirty) days from today. This is so as to avoid this issue being left unattended for many more years to come.
Costs are awarded to the applicant.
By way of conclusion, I wish to place it on record that on the 29th April 2008, this Court per an order of court, (by my Sister Chaka-Makhooane J.) as appears in the court file , an application for intervention/joinder which is dated or which was filed before this Court on the 18th March 2009 was struck off the roll of this Court because it was never moved even though it had been filed on urgent basis. The applicants therein are Lehlola Mofoka and one Ramatsoso Mofoka.
Authorities cited herein are
- The Land Act No, 17 of 1979
- The Deeds Registry Act of 1967
- N.E.C. of the Lesotho National Olympic Committed and Others v. Morolong C of A (CIV) no 26 of 2002 (unreported)
- Lesotho District of the United Church v. Reverend Mothonyana Lawrence Moyeye C of A (CIV) No 12 of 2006.
- Masupha v. ‘Mota 1985 – 1989 LAC page 59
M. Mahase
Judge
For Applicant - Adv. Mot’soari
For Respondents - Mr. Sekati
