CIV/A/10/87

IN THE
HIGH COURT OF LESOTHO

In the
Appeal :

M.M.
MOHOLISA Appellant

and

THABO
SEKHESA Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr. Justice M.Lehohla on the 19th day of September
1988.

This is
an appeal against an order by the Magistrate T.V. ejecting the
defendant from a site situated at Thuathe. Defendant maintained
in
the court below that this site was allocated to him by the Chief of
the area on 2nd September, 1978. He also told that court
that the
chief gave him a form "C" signed by Chief Thebe L. Masupha.
He said the dimensions of this site situated at
a place known as
Maphorosetsa at Thuathe Hill were 200 x 72 x 24 paces. Defendant
developed this site by fencing it, making plots,
building a house,
planting trees and constructing a dam on it. He maintained that he
was never informed by plaintiff that the land
belonged to him before
being sued by him in the court below.

2

In his
particulars of claim plaintiff alleges that he was allocated a
certain unnumbered site measuring 91 x 120 feet on 21st April,
1968 .
This place is at Baruting and was allocated to him by Chief Lerotholi
Masupha. He was accordingly issued with a form C in
respect of this
site.

Plaintiff
complained that since September, 1978 till the issuance of summons in
1983 defendant had wrong­fully and unlawfully
used and occupied
this site and refused or failed to vacate it despite the demand by
plaintiff to do so.

It was
contended for plaintiff that defendant's evidence on page 98 of the
record conflicts with para­graph 3 of his plea at
page 82 which
does not deny the plaintiff's claim that he had made improvements on
this site according to his claim in paragraph
5 yet in evidence
defendant sought to say that there was nothing on this site when it
was allocated to him in 1978.

In his
examination in chief defendant said he was never informed by
plaintiff that the land was his. Vet in response to paragraph
4 of
Plaintiff's claim saying that defendant refused to vacate when told
to do so defe­ndant said in his plea he refused to
vacate because
his occupation of the place was lawful. In evidence under
cross-examination he maintains that this was not an ad­mission
of
the fact that his refusal was based on claim of right but that in his
words "I was replying the summons".

3

Implicit
in this reply is an untenable suggestion that two conflicting answers
to one and the same question are worthy of acceptance
as long as one
of them is an answer to a summons. One cannot rely on evidence that
conflicts with one's plea unless prior leave
to alter plea has been
sought and granted in line with such evidence

P.W.2
Chief Thebe Masupha who gave evidence for defendant was called upon
to say if he complied with pro­visions of the (now
repealed) 1973
Act Section 13 (5) thereof which reads

"The chief concerned shall cause a proper record of the
proceedings to be kept and any decision given in such proceedings

shall be in writing setting out adequately the grounds upon which it
is given."

This
requirement was necessitated by the fact that in response to the
request for further particulars required by plaintiff in paragraph
1
(g) defendant sold the law under which termination of plaintiff's
occupation was effected was the 1973 Land Act (now repealed).
Under
paragraph (j) plaintiff required production of the record of
proceedings in respect of defendant's allocation but the reply

thereto read "not necessary to be provided at this stage".

It turned
out in evidence given by Chief Thebe Masupha that the record of
proceedings for that allocation in favour of defendant
were taken to
the Ministry of the Interior when this witness handed over the
chieftainship

4

following
proceedings which involved him.

It was
contended for plaintiff that this witness's account of where the
record of proceedings of allocation and termination of rights
to the
land in question is, is not good enough regard being had to the fact
that he was enjoined by statute to be custodian of
such a record.
This becomes more so in light of the fact that defendant's response
to the request for further particulars held
some hope that this
record would probably be produced at some later stage. It was in this
connection that it was argued for plaintiff
that if this evidence
existed it should have been produced or else adverse inference should
follow against defendant. Hence the
submission that there was never
such records

It is in
this connection among many other ins­tances that I am of the firm
view that defendant failed to discharge the onus
pieced on him.

Even
without delving any far into the evidence with a view to evaluating
the pros and cons of this case it appears to me that defendant's
fate
could very easily have been sealed at the appeal stage by his failure
to comply with provisions of Rule 52 of the High Court
Rules the
reaffirmation of whose importance was mode by the Court of Appeal at
the beginning of this year in C. of A. (CIV) No.
20/87 'Maphillimon
Motlalentoa vs Monyane and Tlokotsi Rule 52(1) provides as follows

1. When
   en appeal has been noted from a judgment or order of a subordinate

   
   

5

court the appellant may within four weeks after noting of the
appeal apply in writing to the Registrar for a date of hearing.

2. Notice
   must be given to all other parties interested in the judgment
   appealed against that such application for a date of hearing
   has
   been delivered.

   
   

3. If
   the appellant fails to apply for a date of hearing within the four
   weeks as afore­said, the respondent may at any time
   before
   expiration of two months from the date of the noting of appeal set
   down the appeal for hearing giving notice to the appellant
   and all
   other parties that he has done 90.

   
   

4. If
   neither party applies for a date of hearing as aforesaid the appeal
   shall be deemed to have lapsed unless the court on application
   by
   the appellant and on good reasons shown shall otherwise order."

   
   

Needless
to say when confronted with provisions of Rule 52 defendant's counsel
streneously sought to have the Motlalentoa case distinguished
from
the instant one on grounds that the Motlalentoa case came from the
Judicial Commissioner's court while the instant one from
the
subo­rdinate court. Further that practical problems made it
difficult for a dote to be applied for when the record may
only be
ready months after obtaining that date.

My view
is that Mr. Mphalane's first contention places the instant case
squarely within provisions of the above rule. The second
contention
was raised in the

6

Court of
Appeal after being rejected by the High Court and it did not enjoy
the sympathy of the former. Not even when condonation
was sought
based on provisions of Rule 59 of the High Court Rules, which confers
a discretion on the Court to grant such condonation
"if it
considers it to be in the interests of Justice".

I would
therefore dismiss this appeal with costs.

ACTING
JUDGE.

19th
September. 1988.

For
Appellant : Mr. Mphalane

For
Respondent : Mr. Pheko.