CIV/APN/312/88

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

LOUIS
JOAS t/a LESOTHO FUNERAL SERVICES Applicant

V

QUTHING
DISTRICT POULTERY CO-OP SOCIETY Respondent

JUDGMENT

Delivered
by the Hon. Mr Justice M.L. Lehohla on the 30th day of April. 1990.

The
applicant Louis Joas trading as Lesotho Funeral Services brought his
application to court on notice of motion seeking an order:

1. Directing
   the respondent to effect transfer of every right, title and interest
   in and to plot number 26, situate in the Quthing
   Urban Area, into
   the applicant's name.

   
   

2. Authorising
   and directing the Registrar to sign and execute on behalf of the
   respondent all necessary documents for the transfer
   of the property
   in question, should the respondent fail to comply with the order
   prayed for in prayer 1 above. And (see further
   para. 10 of the
   applicant's founding affidavit).

   
   

3. Awarding
   the applicant costs, or

   
   

4. Granting
   applicant an alternative relief.

   
   

In his
founding papers the applicant sets out that

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he and
the respondent entered into a verbal agreement (by which I am made to
understand is meant oral agree­ment for indeed
whether written or
oral an agreement is verbal as long as it is composed of words. But
if oral it is not written and vice versa)
in terms of which the
applicant was to build a new storeroom for the respondent at the
latter's new site.

In
pursuance of this agreement the applicant avers that he fulfilled the
following conditions:-

1. He
   obtained a building permit a copy of which is attached marked "A".

   
   

2. Within
   the ninety six day stipulated period for completion of the building
   he had completed the undertaking and handed the keys
   thereof to the
   respondent.

   
   

It
appears that condition (c) was not met by the respondent. This
condition according to the applicant was that when he had completed

the building in (b) then a certain site No. 26 which before being
registered as a Corporative Society belong in to the Egg Circle
would
be transferred by the respondent to the applicant.

In the
preliminary arguments the applicant's counsel submitted that there
are no real disputes of fact in this application and invited
the
court to be wary of deliberately created disputes of fact.

He
submitted that it was desirable to dispose of these spurious disputes
of fact. He pointed out that it is not proper for the respondent
in
reaction to the applicant's averment to keep on saying "I deny
these and put the applicant to proof thereof!? without stating
why it
questions the authority of the applicant to bring these proceedings
or stating what qualification its deponent has to say
its chairman is
authorised to oppose this application.

It is of
fundamental importance to bear in mind that applications are not only
pleadings but evidence. It is

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not
proper therefore to withhold information which, if supplied, would
have the effect of curtailing lengthy proceedings and the

accompanying costs with the hope that oral evidence would later help
ventilate possible areas of dispute.

It was
with this in view that the applicant's counsel sought to implore the
court to direct the respondent to file supplementary
affidavits in
which full evidence as to its authority is set out.

When the
respondent's counsel opposed the move proposed on behalf of the
applicant Mr Sello stated that he was then withdrawing
that
application and asking the court to grant application as set out in
the papers.

It was
contended for the applicant that it was not proper for 'Neko to say
he is entitled to make the affidavit he made instead
of saying he was
authorised to do so as well as making an indication of that
authority.

It was
further pointed out that ex facie the papers there is not even any
remote indication that he is authorised to make his affidavit
. It
seems that he thinks that because he is a chairman he is entitled to
interfere in proceedings in which he has no locus standi.
The
applicant was however not keen on having this applica­tion dealt
with on this technical ground alone.

With
regard to the merits the applicant relies on Annexure "C"
which shows that he entered into an agree­ment with
the
respondent respresented by people listed in that annexure. It was
submitted that annexure "C" is a prima facie document

executed by the respondent for it bears the respondent's date stamp
and is signed by people representing the respondent.

Annexure"C"
shows that in her capacity as the chair-lady Mrs Mary Damane was
authorised by the undersigned persons, to
wit, 'Maphabo Makotoko,
'Mathabo Khoathane and 'Mahlomohang Tsekoa acting on behalf of the
respondent

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to effect
all the necessary arrangements for the transfer of site No. 26 to Mr
Louis Sello on ful­filment by the latter of conditions
referred
to earlier in this judgment.

'Neko on
behalf of the respondent avers that he knows nothing about annexure
"C" and goes further to say that even if
it could be said
he is aware of its existence it was not effected with the authority
of the respondent.

But
whatever 'Neko's attitude is to the applica­tion it seems to me
untenable to support his self-defeating stance in the face
of the
applicant's un-contradicted evidence that he has performed his side
of the contract.

The
application is granted with costs.

JUDGE.

30th
April, 1990.

For
Applicant : Mr Sello

For
Respondent: Mr Hlaoli.