CIV/T/683/85

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

T.S.
MAHOMED Plaintiff

and

P.M.
LICHABA Defendant

JUDGMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 13th day of May,
1988.-

This is a
case in which the plaintiff claims from the defendant -

1. An
   order directing defendant to effect transfer of every right, title
   and interest in and to Plot No. 12591-006. situate in the
   Mohale's
   Hoek Urban Area, in the district of Mohale's Hoek, into plaintiff's
   name against payment by plaintiff of the balance
   of the purchase
   price amounting to M5,000-00;

   
   

2. In
   the event of defendant failing to comply with the said order within
   a time to be fixed by the Court, then an order authorising
   and
   directing the Registrar to sign and execute for and on behalf of
   defendant all such documents and papers as may be necessary
   to
   effect transfer of the aforesaid property.

   
   

3. Costs
   of suit.

   
   

4. Alternative
   relief.

   
   

2

In his
declaration the plaintiff alleges that on or about the 8th May, 1984,
by verbal agreement, he purchased from defendant all
the latter's
right title and interest in and to certain plot No. 12591-006 which
is situated in Mohale's Hoek urban area, at a
price of M12,000-00 of
which M5,000 was paid on the aforesaid date per cheque No.01231
(Exhibit "A"). It was agreed by
the parties that the
balance of the purchase price would be paid on registration of
transfer of the aforesaid property in the name
of the plaintiff.

The
plaintiff further states that he subsequently paid a further sum of
M1 000-00 per cheque number 01333 (Exhibit"C")
on the 10th
July, 1984 in reduction of the purchase price, leaving a balance of
M5, 000-00 which amount plaintiff tenders to defendant
against
registration of transfer as said above.

In his
plea the defendant admits that the plaintiff paid the two sums
mentioned in the declaration but denies that the sums were
part of
the purchase price of his aforesaid plot. He avers that the verbal
agreement was a sub-lease of Plot No. 12591-006 to the
plaintiff for
a period of twelve months. The sub-lease agreement provided that the
plaintiff had to pay M12.000-00 in advance in
order to have
sufficient space to keep plaintiff's building materials because he
was putting up some buildings at his (plaintiff's)
own plot situated
within Mohale's Hoek urban area.

The
defendant further states that there could never have been a purchase
agreement of the undeveloped site. He says that a balance
of
M5,000-00 is still outstanding and that the period of twelve months
has long elapsed but the plaintiff still remains in

3

occupation
of the plot. He intends to make a counter-claim for the balance of
M5,000-00 plus the amount for the period that the
plaintiff has
remained in occupation of the plot.

In the
counterclaim the defendant claims M5,000-00 for the ten months'
occupation between May, 1985 and February, 1986, he claims
the sum of
M10,000-00 and an order for ejectment of plaintiff from defendant's
plot number 12591-036.

The issue
between the parties is whether the agreement was a purchase agreement
or a sub-lease of the aforesaid property.

In his
evidence-in-chief the plaintiff said that he had known the defendant
since 1978. In May, 1984 the defendant approached him
saying that he
was short of money and that he would like to sell to him his
undeveloped plot number 12591-006 situated in the urban
area of
Mohale's Hoek. They agreed on a purchase price of M12,000-00. The
plaintiff would pay M6,000-00 on the day of the agreement
and that
the balance of the purchase price was to be paid on the day the
registration of the transfer of the property to the name
of the
plaintiff would be effected.

Thereafter
the parties went to the offices of Messrs. Jobodwana, Pheko & Co.
in order to draw up a deed of sale. Mr. Pheko drew
up the deed of
sale (Exhibit "B"). as well as an application for transfer.
Plaintiff says that the parties were waiting
to go and sign the deed
of sale after it had been drawn up. About three months later the
defendant came to him and told him that
he was short of money and
asked him to give him the sum of M1,000-00 which would be deducted
from the balance of the purchase price.
He gave him Exhibit "C".

4

Plaintiff
explained that the deed of sale remains unsigned because one day the
defendant asked him to fetch the file from Mr. Pheko
because he
(defendant) wanted that the transfer should be done by his attorney,
Mr. Lebona. The file was taken from Mr. Pheko and
given to Mr.
Lebona. After the file was taken to Mr. Lebona's office the plaintiff
and defendant never met at the office to sign
the deed of sale. The
plaintiff says that he trusted the defendant and never suspected that
he would refuse to sign the deed of
sale inasmuch as he (defendant)
had already started to transfer the plot into his (plaintiff's) name
by signing the application
for consent (Exhibit "H").

The
plaintiff had also signed a declaration form (Form F11) in which he
disclosed what other commercial land he held (Exhibit "D")

in terms of section 25 of The Land Regulations 1980.

Thereafter
the plaintiff went to Mr. Lebona's office and received a report from
a clerk in that office that the defendant took the
file or all the
contents of the file without her consent. The matter was reported to
the police but they took no action. The plaintiff
went to defendant
and asked him to give the file back to him. The defendant said that
he would bring it back after a few days but
never did so.

A few
days later the plaintiff received a notice from the defendant that he
must pay the balance of the purchase price before the
10th July,
failing which he would have to remove the property from the plot
(Exhibit "E"). The plaintiff ignored the
letter and sought
legal advice and finally instituted this action.

5

On the
23rd July, 1985 defendant wrote Exhibit "F1" in which he
ordered plaintiff to vacate the plot.

On the
22nd July. 1985 the defendant wrote Exhibit "L" in which he
withdrew his application for consent and asked the
Commissioner of
Lands to cancel the application because he could not agree with the
plaintiff on certain things.

The
plaintiff contends that if the agreement was a sub­lease, as the
defendant claims, he (defendant) would not have made an
application
for consent to transfer the plot into his name.

Under
cross-examination it was put to the plaintiff that during January or
February, 1985 he promised to buy for the defendant a
truck worth
M40.000 on condition that the defendant would not sell the site but
would see to it that the land authorities transferred
the plot to
plaintiff's name. Plaintiff has denied this. He said that the
defendant decided to sell the plot because at the relevant
time he
had some problems with the Standard Bank and had a broken leg.

The
plaintiff denies that the deed of sale was his matter alone and that
the defendant knew nothing about it. He says that the defendant
even
released his lease so that the deed of sale could be prepared and
that is the reason why Mr. Pheko had the plot's number.

The
evidence of Mr. Abner Mosaase (P.W.2) is that he received an
application for consent in respect of plot number 12591-006 situate

in Mohale's Hoek urban area (Exhibit "H"). He returned

6

the
application for consent to the defendant because there was no
evidence that the plaintiff was qualified to own land in Lesotho.
He
also attached to the application a Form F11 (Exhibit "D").
After he had received all the information he needed he
started to
process the application for consent and filled a Pro-Forma Minute
(Exhibit "J") with a favourable recommendation.

Before
the Honourable Minister could consider the appli­cation P.W.2
says that he received two letters from the defendant that
the
applicant for consent should be cancelled (Exhibit K1 dated 20th
July, 1985 and Exhibit "L1" dated 22nd July, 1905.
He
acceded to the application and ordered that the file be held in
abeyance.

P.W.3
Motena Lesia testified that she was a clerk in Mr. Lebona's office.
She knew the defendant and that he had a file in the office
of Mr.
Lebona. It contained a lease, a power of attorney and a form
transferring the file from one attorney to another. The file
was
about the transfer of a site from the defendant to the plaintiff.

The file
had been given to her by Mr. Lebona with a warning that she must
never allow the defendant to disturb the file in any way.
She must
not allow him to see it. One day defendant came to her office and
demanded to see the file. She refused to show it to
him. The
defendant passed her and went to the files and took it. He took all
the contents and left the file cover empty. She reported
the matter
to plaintiff and they both went to the charge office and made a
report. This witness conceded that she could not remember
minor
details because the events took place many years ago and in

7

addition
to that she worked for Mr. Lebona for a very short period from
November 1984 to June 1985. She denied that she had been
taught what
to say and insisted that what she said in her evidence was what she
remembers.

The
defendant's evidence is that it was the plaintiff who came to his
house and found him in bed with a broken leg because he had
recently
been involved in a car accident. The plaintiff said that he was
making some alterations to his buildings at his business
premises and
asked that defendant should allow him to keep his building materials
and other hardware at his (defendant's) undeveloped
site. They agreed
on a sub-lease of the aforesaid plot at a rental of M1,000-00 per
month for twelve months.

The
plaintiff paid a rental of M6,000-00 in advance. He later paid
M1,000-00 making a total of M7,000-00 leaving a balance of M5,000-00.

The plaintiff failed to pay the balance and even overstayed for two
months and he (defendant) had no choice but to demand immediate

payment of the balance. The plaintiff suggested that they should
forget about the sub-lease and enter into a purchase agreement.
He
promised to buy a truck worth M40,000-00 for the defendant and in
consideration thereof the defendant would transfer the plot
to
plaintiff. The defendant agreed to the suggestion and started to
process the application for the transfer of the title to the
plot to
plaintiff.

The
plaintiff again failed to fulfill his part of the agreement by not
buying the truck. As a result of that failure he decided
to stop the
Commissioner of Lands from taking any further

8

action in
the processing of the application. In actual fact he ordered him to
cancel the application.

Under
cross-examination the defendant categorically denied that he knew the
deed of sale and that he had his own copy. He denied
that he ever
released his lease to Mr. Pheko so that a deed of sale could be
prepared. He further denied that he took a file from
Mr. Lebona's
office. When asked why he did not draw up the sub-lease, he said the
plaintiff never asked him to do so. He trusted
the plaintiff and
hoped that he would remain in occupation only for the period agreed
upon. He did not eject the plaintiff after
seven months because the
latter asked him to wait until the end of the period of twelve
months. He denied that his counterclaim
is an afterthought. He says
that there is no mention of the truck in the letters because the
plaintiff had changed his mind and
there was no need to mention the
truck.

I must
point out straightaway that there is no provision in the Land Act
1979 that the agreement to dispose of one's rights in land
shall not
be valid until the due execution of a written document. In the case
of Woods v. Walters, 1921 A.D. 303 it was held that
where parties are
shown to have been ad idem as to the material conditions of a
contract, the onus of proving an agreement that
legal validity shall
be postponed until the due execution of a written document lies upon
the party who alleges it.

In the
present case the defendant denies the entire contract and claims that
the agreement between the parties was a sub-lease.
In his pleadings
and in the oral evidence before this Court the

9

plaintiff
says that he regards the purchase agreement as an oral agreement
because the deed of sale was never signed by both parties.
It seems
to me that there was no agreement that the legal validity shall be
postponed until a deed of sale had been drawn up and
signed by both
parties.

I do not
think that much importance can be attached to the deed of sale
because it is not signed by the parties. Moreover, the defendant

denies that he had anything to do with it and the plaintiff has also
abandoned it and alleges that the purchase agreement was oral.

It seems
that there are a number of circumstances which must be considered in
order to decide in whose favour the balance of probabilities
lie. The
defendant admits that in February, 1985 he authorised the
Commissioner of Lands to obtain the Ministerial consent for
the
transfer of plot 12591-006 to the plaintiff because the latter had
promised to buy a truck for him for M40.000. According to
defendant
the plaintiff had already failed to pay rent in the amount of R5,000
because he had just started a new business and had
no money. If the
plaintiff was unable to pay M5,000, how could defendant expect him to
pay M40,000 for a truck.

On the
18th February, 1985 when the defendant made an application for
consent (Exibit "H") to part with his plot he was
well
aware that the plaintiff did not have the money to pay the alleged
rentals and was already in arrears for over two months
because the
sum of M7,000 paid by the plaintiff covered the period from the 8th
May to the 8th December 1984, I do not think that
the defendant is
such a simpleton as to give away his valuable property to a man who
had shown that he had no money because or
the new business

10

he had
started. The truck was worth almost twenty tines the rental which
defendant alleges the plaintiff owed in February, 1985.

The
logical thing a reasonable man would have done would have been to
cancel the sub-lease agreement and to claim payment of arrear

rentals. It is improbable that the defendant trusted the plaintiff to
the extent that he could give him his valuable plot without
any
deposit on a hope that the plaintiff would buy him an expensive truck
when the latter had already failed to pay a mere M5,000.

The
application for consent to transfer the title to the plot by the
defendant to the plaintiff (Exhibit "H") is a very

important document in these proceedings because it clearly shows the
intention of the defendant at the time he signed it; his intention

was to dispose of his title to the plot. At that time his mind was ad
idem with that of the plaintiff. In terms of their agreement
he could
get the balance of the purchase price only on registration of the
lease into the name of the plaintiff. He (defendant)
was apparently
eager to effect the transfer so that he could get some cash because
as the plaintiff said defendant was in some
financial difficulties.
He signed Exhibit "H" in February, 1985 and changed his
mind on the 29th June, 1985. (see Exhibit
"E1"). It is not
clear why he changed his mind but from the cross-examination of the
plaintiff it was made clear that
the plot in question is now regarded
as a prime commercial site. The defendant must have concluded that
the price was too low for
the plot.

The
defendant is not telling the truth that he signed

11

Exhibit
"H" (application for consent) because the plaintiff had
promised to buy a truck for him. In the first letter defendant
wrote
to plaintiff (Exhibit "E1") he sets out in great detail the
sub-lease agreement, the deposit, the balance and the
addi­tional
M2,000 for overstaying. There is no mention of the agreement to buy a
truck nor the allegation that plaintiff has
failed to deliver the
truck. If the defendant were to be believed, then the only contract
that was enforceable on the 29th June,
1985, when he wrote Exhibit
"El", was the contract that the plaintiff would buy a truck
for him. It seems rather strange
that the defendant demanded payment
of rentals and said nothing about the latest contract which had
legally extinguished the alleged
original contract.

The legal
position is that the parties had entered into a novation which means
a new contract between the original parties to an
existing contract,
which extinguishes the original obligation and substitutes a fresh
one in its place (Short v. van der Merwe,
1907 E.D. 240). I am
mentioning novation on the assumption that the story of the defendant
is true. He cannot be allowed to enforce
the original contract
because the new contract extinguished it. If there were no novation,
that would still not resuscitated the
original contract because the
defendant agreed to abandon the sub-lease (Acacia Mines v. Boshoff,
1958 (4) S.A. 330 (A.D.). In
his evidence-in-chief defendant deposed
that plaintiff came to him and said that they should leave the rent
(sub-lease) and that
he (plaintiff) would buy a truck for him
(defendant) for M40,000 and in consideration plaintiff would transfer
the site to plaintiff.

It is
clear from defendant's evidence that the parties novated. The
original contract was abandoned. Under cross-

12

examination
defendant denied that the original contract was abondoned. His denial
has no substance because he agreed to leave the
sub-lease.

What I am
saying is that even if the story of the defendant were to be
believed, his counterclaim would still have to fail because
the
parties agreed to novate the original contract, 1, however,, do not
believe the defendant because all documentary evidence
before the
Court clearly show that there was no agreement about the purchase of
a truck. He was effecting a transfer in compliance
with the purchase
agreement he entered into with the plaintiff.

The
evidence of P.W.3 Motena Lesia proves that at some stage after the
parties had reached a purchase agreement, the defendant surrendered

his lease to the plaintiff to enable a lawyer to draw up a deed of
sale. When he changed his mind he went to Mr. Lebona's office
and
took the lease from the file without the permission of P.W.3. I have
no reason to disbelieve P.W.3, she impressed me as a truthful
and
honest witness. She satisfactorily answered questions in
cross-examination and admitted that because the events happened about

four years ago, she may have forgotten other things but was adamant
that what she told the Court was what she remembered well.

Much was
made of the fact that in the application for consent to transfer
(Exhibit "H") the plaintiff said that the amount
of
consideration involved was M2,000 and not M12,000. In my view, the
fact that the applicant (now defendant) entered a sum much
less than
the true amount, shows how untrustworthy and dishonest he is He
failed to explain why he did not enter M40,000 if the
transfer was
for consideration of that amount. In other words, he was

13

prepared
to tell the Commissioner of Lands a lie. A court of law cannot
readily believe a witness who has previously told a lie
unless he can
give a reasonable explanation why, on that occasion, he told lies.
The plaintiff impressed me as a truthful and honest
witness and the
balance of probabilities is on his side.

For the
reasons stated above I formed the opinion that the plaintiff has
proved his case on a balance of probabilities.

There
will be judgment for the plaintiff as prayed in. the summons with
costs. The time fixed by the Court in terms of prayer 2
of the
summons shall be sixty (60) days.

J.L.
KHEOLA

JUDGE

13th May,
1988.

For
Plaintiff - Mr. J.A. Koornhof

For
Defendant - Mr. W.C.M. Maqutu.