CIV/APN/268/87

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

SELLOANE
PUTSOANE Applicant

and

MOTLATSI
LEKATSU Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 17th day of August, 1990.

The
applicant herein seeks, against the Res-pondent, an order of this
court framed in the following

terms:

" 1. Ejecting Respondent from a certain unnumbered site, or
portion thereof at Thoteng Ha Scout, Roma, in the district of
Maseru
shown as plot Number 012 in the Lesotho Cadastral plan No. 18333.

2. Granting costs of this application to applicant.

3. Granting applicant such further and or alternative relief."

The
application is opposed and affidavits have been duly filed by the
parties. It is, perhaps, convenient to mention at this juncture
that
the original applicant in this matter was James Morapeli Putsoane.
When the application came for arguments the court was informed
that
the applicant, James Morapeli Putsoane,had since passed away. An
application was, therefore, made that his widow

2

Selloane
Putsoane, be substituted as the present applicant. The aplication for
substitution was not opposed and accordingly granted
by agreement of
the parties.

It is
common cause from the affidavits that prior to 1974 a certain Leronti
Matobo was entitled to the use and occupation of a piece
of land at
Thoteng Ha Scout in the area of Roma. In 1974 a portion of the land
was lawfully allocated to the applicant for use
as a residential
site. Annexure "A", certificate of land allocation was on
9th March, 1974 issued to him as proof thereof.
That portion is shown
as No. 012 on annexure "B", the Cadestral Plan No. 18333.

It is
further common cause that in July 1985 the Respondent started
amassing building materials on a plot adjacent to the residential

site admittedly lawfully allocated to the applicant in 1974.
According to the applicant the plot on which the Respondent was
amassing
building materials was another portion of the land belonging
to Leronti. He had negotiated for that plot with Leronti and it was

sub­sequently lawfully allocated to him as another residential
site in 1979. He attached annexures "C" and "D"

as proof thereof. When he noticed the Respondent amassing building
materials on the plot the applicant contacted and told him to
remove
the building materials. The Respondent, however, refused to do so.

Apparently
the applicant instituted, before the Maja Local Court, proceedings in
which he claimed the eviction of the Respondent.
It is not clear,
from the papers before me, what the outcome of those proceedings was.
In any event the applicant has now approached
the High Court for an
order as aforesaid.

3

In his
affidavit the Respondent conceded that the plot on which he had been
amassing building materials originally belonged to Leronti.
He
denied, however, that the plot was ever lawfully allocated to the
applicant. According to the Respondent he had acquired the
plot from
the previous owner. Leronti. He had in fact paid money which Leronti
received for the plot. The Respondent denied, therefore,
that the
plot was lawfully allocated to the applicant who accordingly had no
right to evict him therefrom. In the contention of
the Respondent
Annexures "C" and "D" were nothing but
fabrications calculated to defraud him of his right to
use and occupy
the plot on which he had in fact already built a house and was living
with his family.

As I see
it, the decision in this case revolves on whether the plot, the
subject matter of this dispute, belongs to the applicant
or the
Respondent. Although each of the litigants claims this plot, it is
significant that the Respondent has produced no documentary
proof to
substantiate his claim. All that he says is that he acquired the plot
from Leronti, the previous owner,who is apparently
not a chief and
cannot, therefore, lawfully allocate land in this country.

On the
other hand,the applicant has produced two documents purporting to
substantiate his claim that the plot belongs to him. The
documents
are annexures "C"

4

and "D",
respectively, a certificate of land allocation and a written
agreement between himself and Leronti.

Both
documents are dated 15th August, 1985. Annexure "D" reads,
in part:

" An agreement between

1. Mr. Leronti Matobo, the site allotter

and

2. Mr. James M. Putsoane, the site allottee.

Basing myself on the decision of the commissioner of Lands in Maseru,
I, Leronti Matobo and Mr. J.M. PUtsoane, on the basis of
paragraph
(2) of that letter refer our matter to the chief of Roma for his
intervention.

The chief
advised that as he knew that I have another site at that area I
should give the disputed site to Mr. James M. Putsoane
and Mr.
Matlatsi Lekatsu another site as a replacement to the site in
dispute. The chief blessed the idea because it was fair and
peaceful.

Leronti
Matobo.

I agree
and approve the decision above because it is in order.

Sgd:
Maama M. Maama Chief or Roma."

The
alleged Commissioner of Lands'' letter on the basis of which the
applicant seems to rely for the con­tention that he had
been
allocated the plot by Leronti is not attached to the affidavits. This
court is, therefore, not aware of the contents of para
(2) thereof.
In any event, I have already intimated my view that Leronti is not a
land allocating authority in this

5

country.
He cannot, therefore, have lawfully allocated the

plot, the
subject matter of this dispute, to the applicant,

Although
the applicant averred that he was allocated the plot in 1979 and
produced annexure "C" as proof thereof, it is
significant
that annexure "C" does

not bear
him out. It was clearly issued to him by the Chief of Roma on 15th
August, 1985 and not 1979. It must also be observed
that in 1980 the
area of Roma was declared an urban area by Legal Notice No. 14 of
1980 dated 22nd August, 1980.

That
being so, it must be accepted that if it were true that on 15th
August, 1985 the plot the subject matter of this dispute, was

lawfully allocated to the applicant, the law applicable was Part III
of the Land Act 1979 of which S.19(1) specifically provides:

" 19(1) this Part applies to the grant

of title to land in an urban area."

In terms
of the provisions of 5. 24 of the Land Act 1979 the power to grant
title to land within an urban area is exercised by an
Urban Land
Committee consisting of:

" (a) the Principal Chief having juris­diction, as chairman;

(b) the commissioner or his authorised representative;

(c) the District Administrator, or where a Town Clerk has been
appointed, the Town Clerk for the relevant urban area who shall
be
the secretary of the com­mittee;

(d) three other persons appointed by the

Minister."

6

S.27(1)
of the Land Act 1979 provides:

"whenever
a decision to grant title to land under this Part has been taken, the
secretary of the Urban Land Committee shall
forward to the
Com­missioner a certificate to that effect in Form "C3"
in the Third Schedule and shall at the same
time issue a copy of the
certificate to the applicant" (My underlining)

In the
instant case, annexure "C", the copy of the certificate,
issued to the applicant is in Form "C2" and
not Form "C
3" in the Third Schedule Form "C2" is, however, not a
proper form to use where land has been allocated
within an urban
area. I have underscored the word "shall" in the above
cited S.27(1) of the Land Act 1979 to indicate
my view that if it
were true that in 1985 the applicant was allocated the plot, the
subject matter of this dispute, within the
urban area of Roma, it was
mandatory to use Form "C3", Moreover, annexure "C"
is signed by the local chief
Maama, M. Maama purporting to be the
Chairman of the land Committee. As it has already been stated
earlier, the Principal Chief
and not the local chief is, in terms of
the provisions of S.27 of the Land Act 1979, the chairman of the
urban land committee.

By and
large, I am convinced that the plot, the subject matter of this
dispute, was irregularly allo­cated to the applicant
and for that
reason he cannot be

7

heard to
say the plot lawfully belongs to him. The applicant cannot,
therefore, be entitled to evict the Respondent from the plot
over
which he has no legal title

In the
circumstances, I have no alternative but to dismiss the application
with costs.

B.K.
MOLAI JUDGE

17th
August, 1990.

For
Applicant : Mr. Monaphathi

For
Respondent : Mr. Matete.