IN THE HIGH COURT OF LESOTHO

 

 

In the matter between:-                                                  CIV/APN/257/2009

                                                                                      CIV/APN/67/2007

                                                                                      CIV/A/21/2004

 

 

SELLO RAKOMETSI                                                     PLAINTIFF

 

AND

 

THABO MOSOEUNYANE                                              1^ST RESPONDENT

‘MANEO MOSOEUNYANE                                             2^ND RESPONDENT

 MOJALEFA RAKOMETSI                                            3^RD RESPONDENT

 

 

JUDGMENT 

 

Delivered by the Honourable Madam Justice M. Mahase

On the 14^th September, 2011

 

Civil Procedure – Practice – Application for the interpretation of Honourable Judge’s Order in Chambers

 

 

The applicant has approached this Court seeking an order couched in the following terms:-

 

(a)That the order granted by the Honourable Mahase J on the 14^th September 2009 rescinding the judgment and staying the order of the Honourable Mofolo J of the 12^th August 2005, rescinding such judgment and such order as far and to the extend only as the 1^st and 2^nd respondents’ contested site is concerned only, and did not affect the judgment and order of Mofolo J as far and to the extend to which that judgment and order relates to the other two sites in question which are unlawfully occupied by 3^rd respondent.

 

(b)Costs in the event of opposition hereof by the respondents.

 

(c)Further and/or alternative relief.

 

It must, from the on set be indicated that the inelegant way in which prayer (a) is couched is problematic.  This I say with the greatest respect.

 

Be that as it may, it is a matter of common cause that litigation between the parties herein started way back around the year 1991 – 1992 in the Magistrate’s Court in the Maseru district.  Vide annexure “THA1” page 59 of the record.

 

Suffice it to mention that in that case the third respondent lost the case to the now applicant in this application.  Subsequently, the now 3^rd respondent appealed to the High Court against the judgment of the court a quo.  The appeal was dealt with by my brother Mofolo J; who held in favour of the applicant in respect of the two out of the three sites.  The so called third site was awarded to third respondent herein.  I will deal with this issue in due course.

 

I must mention at this juncture that it is not very clear to this court, why on appeal, the subject-matter came to be three sites; while in the court a quo, subject-matter had been only one site.

Subsequent to the judgment of Mofolo J. dated the 12^th August 2005, the third respondent further noted an appeal to the Court of Appeal.  This appeal to the Court of Appeal was struck off the roll for lack of the necessary leave to appeal having been sort from the High Court.

 

In other words, the Court of Appeal struck off the said appeal which had been launched by the present third respondent because, the third respondent had not sort leave to appeal the High Curt judgment (being a second appeal) of Mofolo J. dated the 12^th August 2005.

 

It is noted that no further action was taken by the third respondent after that appeal to the Court of Appeal was struck off the roll.  The judgments and Orders of Court referred to above have been annexed to the papers herein.  They are as follows:-

 

-      Annexure “SRI” – per Mofolo J :- page 9

-      Annexure “SRB3” – (the C of A judgment/order) :- page 23

-      Annexure “SR3” – per Mahase J. (subject-matter in this application):- page 21.

 

It must also be indicated that subsequent to the order of this court dated the 14^th September 2009, yet another interim Court Order dated the 7^th December 2009 was granted in favour of the present applicant.

In this interim court order – granted by my brother Justice Nomngcongo, among others and in prayer 1 (b) and 1 (c), the final order of court dated the 14^th September (supra) has been stayed and rescinded.  In prayer 1 (d) the applicant has been granted leave to oppose the main application in CIV/APN/257/2009.

 

The upshot of this is that the final order of this court dated the 14^th September 2009 has effectively been rescinded.  I note however that none of the parties in this application has referred to this order of court.  In fact, the particular pages in which this application appears are not paginated.  Be that as it may, it is appropriate to mention that the said rule nisi, dated the 7^th December 2009 has since lapsed because it was extended to the 15^th February 2010 and extended by consent to the 19^th April 2010.

 

Nothing was done about same.  That is that rule nisi has not been revived but on the 21^st February 2011 both counsel for parties herein argued the present application.  No issue was raised about the rule nisi dated the 7^th December 2009.

 

This now brings me to deal with the issues raised in the instant application.  It should be indicated that after the Court of Appeal struck off the roll the appeal that was lodged by the third respondent in the instant application, nothing more was done nor heard by and or from the third respondent.

 

What then transpired is that the first and the second applicants approached the court on the 10^th August 2009; and on other subsequent days in which they were ultimately granted a rule nisi whose final effect culminated into the final order of this court dated the 14^th September 2009.

 

It must be mentioned that it is on record that counsel (a number of them) who had appeared before court on behalf of the two applicants (first and second) had first obtained the rule nisi which was ultimately confirmed and or granted by default against the current applicant because it was alleged that the now applicant had been served with the papers dated the 11^th July 2009, but that he had not responded to same.  Refer to unpaginated record after page 37 of the paginated record.

 

Put differently, the rule nisi dated the 17^th August 2009 was confirmed by this court against the current applicant (Sello Rakometsi) because this court was referred to a return of service dated the 18^th and 23^rd July 2009 which had allegedly been served upon Sello Rakometsi/applicant herein.  The court was erroneously informed that he (applicant) had not filed any notice indicating his intention to oppose that application.

 

The applicant (Sello Rakometsi) denies ever having been served with such papers.  Indeed, this return of service indicates that only the 1^st, 3^rd and 4^th respondents were served with papers therein.  It is indicated that 1^st respondent received court process herein on behalf of the 2^nd respondent.  Obviously, the 2^nd respondent was never handed this court process hence why he never responded to court process issued in July 2009.

 

I pause to note here that in fact since Sello and Mojalefa have been at logger heads over these sites in question, Mojalefa deliberately refrained from handing that court process to Sello.  This explains why Sello has been reported to have not responded to the said application.

 

A copy of this return of service dated the 12^th and 23^rd July 2009 is filed as the last unmarked/unpaginated page in this court file.  I now deal with the issue(s) raised herein in the instant application. 

 

To do so, this court first notes and observes that after his appeal to the Court of Appeal was struck off the roll of that court for the reason that the third respondent had failed to seek leave of the High Court to note that second appeal, the third respondent then irregularly and lawfully transferred or had the said third site transferred to the first and second respondents.

 

The third respondent did the above well aware that having not prosecuted his appeal and his appeal to the Court of Appeal having been stuck off the roll, the status quo ante was restored.  The net effect of the above i.e. the striking off of that appeal filed by the third respondent to the Court of Appeal was that the three sites in question reverted to the applicant in the instant application.

 

In respect of the Court Order i.e. final order of this Court dated the 14^th September 2009, the proper interpretation of same is as clearly as therein stated.  It is that the Order or judgment of the 12^th August 2005 has been rescinded and set aside for having been granted by error.  The effect of which is that the third site which was granted to the third respondent and which site the third respondent irregularly or unlawfully had transferred to the first and second respondents has to revert back to the applicant in the instant application.

 

There is no doubt that:-

-      The third respondent had deliberately refrained from handing to the applicant court process in relation to the application in which or in respect to which a Rule nisi dated 17^th August 2009 was granted and subsequently confirmed by this court on the 14^th September 2009.  Obviously, and regard being had to the contents of the return of service dated 12^th and 23^rd July 2009, which has been alluded to above, this court would not have confirmed the said Rule nisi dated the 17^th August 2009.

 

In fact and to be precise, although in the court minute dated the 10^th August 2009; it is written that all the respondents were served court papers but that they have not responded, it is now clear that it was only the first, third and fourth respondents who were actually and physically so served.  Refer to return of service dated the 12^th and 23^rd July 2009 which has been referred to above.

 

The above, read together with the applicant’s averments in paragraphs 4 up to 6 of his founding affidavit is the correct or proper interpretation of the final order of this Court dated the 14^th September 2009.

 

Mindful of the fact that the third respondent is not empowered nor does he have any right to transfer or allocate the site in question site to 1^st and 2^nd respondents herein and most importantly mindful of the fact that when in 1994 the deed of transfer annexure LINI was allegedly executed in the names of the second respondent that was done some three or two years since the applicant herein and the third respondent were already embroiled in litigation over this site; it is highly suspect that this lease document was executed in this life time or by consent of Mr. Makalo Rakometsi.

 

This court is fortified in this regard by the fact that litigation in respect of these sites has been going on since around 1991 throughout 1992 to date.  Both the applicant and the third respondent could not have been engaged in litigation over those sites during the lifetime of the said Makalo (Nako) Rakometsi through whom they both claim to have acquired the site(s).

 

Also refer to letter dated the 10^th July 1995, page 10 hereof.  The deed of transfer document herein referred to above is highly suspect.  Its authenticity is highly questionable to say the least.  However since this court has not been asked to pronounce on the authenticity or not of it, it will not comment on it any further.

 

The crux of the matter is that until such time that the final order of this Court dated 14^th September 2009 has been appropriately and successfully challenged by those aggrieved by it; it stands as a valid order or judgment of this court.

 

In the circumstances this court has come to the conclusion that as per the final order of Court only one site which is now allegedly and or which is under very dubious circumstances, contested or occupied by the now 1^st and 2^nd respondents was rescinded and stayed by the said order of court.

 

For emphasis, not the whole of my brother Mofolo J. has been rescinded and stayed.  The rescission relates to the so called third site which was allegedly occupied by the third respondent, and which has since been transferred to the first and second respondents’ under very suspicious circumstances, alluded to above.  Failure by third respondent to prosecute his appeal has negated that transfer; which should, in the first place, not have been effected by the third respondent; and which transfer is highly suspect.

The judgment of my brother Mofolo J is to the effect that actually the applicant is the heir to the estate of the late Makalo Rakometsi.  That in the result sites in dispute are the property of the applicant in his capacity as heir to the estate of both his father and his uncle Makalo except the property on which a café stands and all that goes with it is the property of the third respondent by reason of the said Makalo being indebted to the third defendant.  Vide page 9 of the said judgment – page 19 of the record.  However, having failed to prosecute his appeal, all the three sites remain inherited by the applicant from Mr. Makalo Rakometsi.  There is no formal application of intervention by the 1^st and 2^nd respondents in this application.

 

What we now know as a fact is that the appeal filed on behalf of the now third respondent against the judgment of my brother Mofolo J was never prosecuted.  It was struck off the roll because the appellant/ now third respondent had not sort leave of the High Court to note an appeal to the Court of Appeal.    Effectively there was no appeal before the Court of Appeal.  The third respondent cannot therefore claim ownership over the three sites referred to in that judgment.

 

As for the final order of this Court dated the 14^th September 2009 it still stands for the reasons that:-

 

-      Firstly, the applicant was never served or that he ever received court process or notice of motion dated the 1^st or 11^th July 2009 for (the Court date stamp is not clear) the reason being that, that process was left with the first respondent for him to deliver to 2^nd respondent.

 

I have already alluded to this kind of service above.  It was improper for the deputy sheriff to leave that court process with the 3^rd respondent herein for the reasons that actually the main or real contenders over these three sites are the applicant and the third respondent in the instant application.  It is therefore not surprising that the said Mojalefa (now third respondent) did not deliver this Court process to the applicant (Sello).  It is a matter of common cause that this process was received by Mojalefa Rakometsi on the 23^rd July 2009.

 

These is no indication that the present applicant was ever served with it.  Refer to the return of service dated the 18^th and 23^rd July 2009.  One cannot ignore the contents of this return of service.  In a nutshell the final order of this Court dated the 14^th September 2009 was given erroneously by default against the present applicant for the fact that this Court was informed that applicant (Sello) had been served with a court process while in fact that was not the case.  This Court has already alluded to this fact above.

 

-      Secondly, even further, this very order, now subject-matter herein dated the 14^th September 2009, has also since been rescinded and its execution stayed by an order of court dated the 7^th December 2009, per my brother Momncongo J.  He has further ordered that applicant (Sello) be and is given leave to oppose the main application in CIV/APN/257/2009.  See also order of court per my brother Peete J. dated 2^nd September 2009.

 

It is apposite to indicate that in annexure “SR3” – page 21 of the paginated record, an order of court referred to at paragraph (a); viz, that dated the 23^rd April 2007, which has allegedly been stayed is not in existence.  I have perused this court record but I have not come upon such an order.

 

In conclusion, it is a matter of common cause that indeed the court was erroneously informed on the 14^th September 2009 that the applicant (then 2^nd respondent as appears in annexure “SR3”) had been served with Court process; while that is not so.

 

The issues raised by and on behalf of the respondents that the applicant is trying to obtain an order rescinding or for variation of the order of Court or of the judgment of Mofolo J. holds no water.  This I say with the greatest respect.

 

Counsel for respondents has raised an important well known principle of the law to the effect that every judgment is presumed right, and that it can only be challenged on appeal.  He has however not addressed the issue that the third respondent’s appeal was struck off roll for want of leave to appeal.  He has not said what the effect of that order of having the appeal struck off the Court of Appeal roll is.  He has therefore joined issue with the applicant on this fact.

 

The issue that the third respondent has also subsequent to those  dates; the 12^th August 2005 and 14^th September  been preventing and interfering with the messenger of court from ejecting him from the sites in question has not been gainsaid; as such it remains unchallenged.  The applicant has been trying to have that judgment of court executed but he was prevented from doing so by the third respondent.  Vide paragraph 6 and 7 – founding affidavit.

 

No reasons have been advanced on behalf of the third respondent why it is averred that the applicant has not approached the court within a reasonable time to seek the relief which applicant has since sort before this Court.  The question is, what is the basis for such an averment?  It is noted further that in fact, once more third respondent has joined issue herein with the applicant because he has not denied that fact of the third respondent having prevented the execution of the judgment of court.

 

It is for the foregoing reasons that this Court has come to the conclusion that the only reasonable interpretation to be placed on the final court order dated the 14^th September 2009 is that in that court order, the court stayed and rescinded the judgment and order of Mofolo J. in as far and to the extend only as first and second respondents’ contested third site is concerned.  That did not affect the whole judgment or order of Mofolo J.; in as far as and to the extend to which that judgment/order related to the other two sites in question.   These remain the sites of applicant.  It is noted that nowhere is it indicated that the application for rescission dated the 1^st July 2009, was ever prosecuted by the 1^st and 2^nd applicants’ thereat.  These are now 1^st and 2^nd respondents.

 

This application is granted as prayed in so far as the judgment of my brother Mofolo J. has since been rescinded in so far as concerns the third site only.  Costs are awarded to applicant.

 

 

M. Mahase

Judge

 

 

For Applicant           -       Adv. S.J. Maqakachane

For Respondents      -       Adv. R. Thoahlane