CIV/A/18/80

IN THE
HIGH COURT OF Lesotho

In the
Appeal of :

ISAAC
NYOFANE Appellant

V

SELLO
LELOSA Respondent

JUDGMENT

Delivered
by the hen. Mr. Justice M.P. Mofokeng on the 17th day of March, 1982.

In this
appeal the dispute centres around respondent's land situate at
Litsepheng. both parties claim ownership of this land, and
the trial
Court had to determine the dispute in accordance with the evidence
produced before it. The trial Court found for the
appellant and so
did the Central Court while the Judicial Commissioner's Court
reversed the findings of both the lower Courts.
It is against the
decision of the Judicial Commissioner's Court that this matter is now
before this Court.

In this
judgment I shall simply refer to the parties as they were referred to
in the trial Court, namely, plaintiff (Respondent)
and defendant
(Appellant) respectively. The plaintiff described the land in dispute
as "formerly belonging to Lechesa Pelanyana.
To the west .......
there is a hillock that runs in a northerly direction and to the east
...... lies that of morena Sheaepane."
The defendant

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described
his land as the one he had previously disputed, and on each occasion
had Judgment in his favour, with Makhetla (P.W.1)
and Sheaepane
(P.W.3) respectively.

He
continues":

"There is no hill separating this land. The hill is on the
Western side of the field (land). My land is on the Eastern side
of
the hill and next to the land lies that of Sheaepane."

Makhetla
Lelosa says that the land which he and the defendant previously
disputed was situate on the Western side of the hill whereas
the land
now in dispute is on the Eastern side of the hill. He says he
represented The chief when the land presently in dispute
was
allocated to the plaintiff. He says that the same land that he and
the defendant had a dispute about is also the same land
over which
defendant and Sheaepane subsequently had a dispute, the subject
matter in J.C. 6/73.

Lechesa
Pelanyana says that the land allocated to the plaintiff was his from
1967-77 when thereafter he handed it back to chief
Sheaepane. He says
that land is near that of chief Sheaepane and there is a hill near
it." He says that plaintiff did not
dispute it with anybody
neither did defendant dispute with him (the witness).

Chief
Sheaepane says that the land in dispute was allocated to the
plaintiff and formerly it belonged to the family of "respondent's

(defendant's) sister 'Makalimo Matsela Nyofane in 1967. The land was
taken away from her on the abolition of "Lipaballo"
by
writing a letter of deprivation. Thereafter it was allocated to
Lechesa Pelanyana who subsequently surrendered it. It was thereafter

allocated

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to the
plaintiff. He says that the defendant's land was allocated to Hlabana
(not called as a witness) who was ploughing it. He
says that before
the defendant was deprived of that land, he had been given notice to
discontinue ploughing it. when the defendant
had been summoned to
come to him (chief Sheaepane) the former did not turn up and in his
absence he was deprived of that land.
Upon inquiry by the defendant,
through his chief, defendant was invited so that he could be shewn
records in the office. He says
that the land he and defendant
subsequently disputed was the one which had been allocated to
Hlabana. He says plaintiff's land
is separated by a hillock. It was
the land allocated to Hlabana which was the subject matter in J.C.
6/73 in which the Judicial
Commissioner held that the defendant had
been wrongfully deprived of his land without sufficient notice of
such intention being
given to him. That dispute had nothing to do
with present one before Court.

That was
plaintiff's case.

The
defendant, after describing the locality of his land and land mark
features, states that his land is "not separated by
anything."
He says that the messenger who executed the judgment (probably in
J.C. 6/73) found the land "undivided".
He states, when
asked by the Court, that 'Makalimo (D.W.3) has no field "near
the hill". After the said judgment he had
received no notice
from Sheaepane.

Matlamela
Motsoene deposes that the field in dispute belongs to the defendant
who previously disputed it with Makhetla Lelosa and
the Court found
in favour of the defendant. The same land was subsequently a subject
of dispute between the defendant and chief
Sheaepane and again
judgment was

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given in
favour of the defendant. It was again disputed by one Thelang against
the defendant with the same results as previously
in other cases. He
says that he "placed" the defendant on that land in 1947.
He was surprised that the plaintiff was
disputing it with the
defendant. He says that to the west of the defendant's land there is
a hill. On the north-west is a land
belonging to one Makhetso
(defendant's wife). The disputed land is on the "Eastern side of
the hill" and this is the
"one which the Court found for
respondent (defendant) against Sheaepane.

Lefu Moqa
simply deposes that the land in dispute is "separated by a hill"
and anyone who says anything to the contrary
is not being truthful.
He says that he was present when the land was awarded the defendant
"in execution." 'Makalimo
has no land in that area,
'Makalimo Nyofane deposes that she never received any letter from
chief Sheaepane and anybody who says
anything to the contrary is
lying. She describes hew this land was used by the members of the
family from Mpotjo to heki and then
to the defendant. Her field which
was seized by chief Sheaepane was situate at Moloko, far from that of
the defendant. She has
no land near Sheaepane's but that of the
defendant is. She has no land near a ridge. She says that defendant's
land is "divided
by a donga near the hill and it runs along
these lands." She denied that defendant's wife Makhetso owns any
land.

This
concludes the defence's case. however, the trial Court for reasons
which are not stated on the record before me allowed plaintiff
to
call two more witnesses.

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Tlali
Nyofane is the first brother of the defendant. He says that the
disputed land "belong to heki." He says that the
land to
the East of the hill belongs to 'Makalimo and the one to the Vest to
'Makhetso. He did not know the land over which the
defendant and
chief Sheaepane had a dispute, but there was such a dispute. He
conceded that he had lied when he had said that the
land had been
allocated 'Makalimo by chief Motsoene.

Mohapenyane
Nyofane is a younger brother of the defendant. He says after the
death of heki the land was handed to his elder brother
Matsela (the
late husband to 'Makalimo). The allocation had been done by chief
Letsie.

'Makalimo was not being truthful when she said that she did not own
that land. He says 'Makalimo's land is on the Eastern side
of the
hill while that of the defendant is on the Western side. He says "I
saw the Court messengers at this field and recognised
that it was the
one he disputed with Sheaepane."

An
inspection in loco was held and it is there recorded what took place
and there is a general agreement about the locality of the
land
except that defendant stated that his land extended by 15 feet beyond
whore plaintiff said his ended. about this inspection
in loco the
trial Court said :

"On 24. 1. 81 I conducted an inspection in loco of the land to
the North-West of the hill to ascertain hew it is connected
to the
portion on the Eastern side of the hill. I found that on the North
there is a strip which undoubtedly joins these two portions
and
nobody would argue that. The portion on the West appears to have been
ploughed by someone else ......."

The
importance of this finding is that the two lands are

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in fact a
single unit with no divisions as some witnesses purported to
describe.

It is
further argued that the decision in J.C. 6/73 is vague as it does not
describe with precision the boundaries of the land which
was in
dispute, I do not think that that is correct. It was unnecessary for
that Court to elaborate the precise details of the
land involved
since there was only one such land. The trial court found that that
piece of land involved in J.C. 6/73 now had one
portion of it
allocated to somebody else by chief Sheaepane and that in doing so
the xxxxxxx had not been given proper notice,
in terms of the law, to
vacate it and instead the notice was given to a wrong person. The
trial Court could not, therefore, be
faulted when it held that the
land presently in dispute was previously held to belong to the
plaintiff. It is against that background
that the evidence of chief
Sheaepane cannot be looked upon as being neutral. He had a score to
settle with the plaintiff. As for
the relations of the defendant who
gave their evidence so belatedly their motives for doing so (and out
of turn so to speak) is
rather obscure. Whatever their motives, the
procedure followed by the trial Court was most unusual even for that
Court. however,
and since the trial Court reached its decision on a
different point, it was not necessary to have analysed the evidence
of these
witnesses. But since it would seem that the learned Judicial
Commissioner, having thought that the witnesses1 evidence was crucial

to the decision of the case, did not consider it necessary to go into
that aspect of the matter I thought it was only fair to shew
briefly
that their evidence was for from faultless and so readily

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acceptable
to tilt the scales in favour of the plaintiff.

The
plaintiff is in possession of a certificate styled "Form 'C'".
It is now settled, through the decisions of this Court,
that the mere
possession of such a certificate does not per se confer ownership in
the land mentioned therein. (Majoro v Sebapo,
1981(1) LLR. 150).
Similarly in the present case the trial Court was not impressed by
the mere production of such a certificate.

The trial
Court, having arrived at the conclusion that the land in dispute had
previously been awarded the plaintiff it did not
bother to go into
the question of the conflict of evidence. It was not necessary in the
circum­stances. I find myself unable
to disagree with it. It,
therefore, becomes quite unfair for the learned Judicial Commissioner
to attack the trial Court's decision
on the ground that it had
misdirected itself on the facts and made no definite findings thus
affording himself an opportunity of
reviewing the whole of the
evidence afresh. The absurdity of this encroachment is that the
learned Judicial Commissioner himself
arrived at a conclusion that
two different pieces of land were involved whereas the trial Court,
which held an inspection in loco
found that there was only one piece
of land involved; it also varied the trial Court's judgment to simply
read

"Judgment for appellant (defendant) on the land on the Eastern
side of the hillock."

Its
boundaries are not stated.

The
judgment of the trial Court came on appeal before

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Tsifalimali
Central Court, Its Judgment in dismissing defendant's appeal, was
very brief and to the point, namely, that there had
been no evidence
to prove that the land in dispute was a different one from that
disputed in J.C. 6/73. I would not disagree.

In my
view of the matter the trial Court arrived at a Just decision
considering the suspicions circumstances revealed in this matter
and
that the learned Judicial Commissioner erred in setting aside, not
only the trial Court's decision but also that of the Tsifalimali

Central Court which had confirmed it on appeal. This appeal,
therefore, ought to be upheld with costs, in all the Courts, and it

is accordingly so ordered.

JUDGE

17th day
of March, 1982

For
Applicant : Mr. K. Sello

For
Respondent : Mr. C. Maqutu