CIV/APN/350/86

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

NTSUKUNYANE
RAMETSE 1st Applicant

JUBILE
TSOSANE 2nd Applicant

and

THE
ATTORNEY GENERAL 1st Respondent

MINISTRY
OF INTERIOR 2nd Respondent

THE TOWN
CLERK 3rd Respondent

LIKETSO
MASUPHA 4th Respondent

MOSOLA
TSOSANE 5th Respondent

MAKEOANE
MAJORO 6th Respondent

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 20th day of August, 1990.

The
applicants herein have instituted, before the High Court, an ex-parte
application in which they seek, against the Respondents,the
following
order:-

"1.
That a Rule Nisi be and is hereby issued calling upon the Respondents
on a date to be determined by this Honourable Court
to show cause (if
any) why:-

1. The
   6th Respondent shall not be restrained forthwith from developing a
   site, which is a

   
   

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portion
of second Applicant's field situate at NALEDI at Ha-TSosane in Maseru
urban Area and the site is an extent 61m x 31m x 59.7m
x 31.8m;

2. The
   6th Respondent shall not be ordered to remove his poles from the
   said site;

   
   

3. Why
   the 1st Applicant shall not be issued with a lease for the aforesaid
   site;

   
   

4. The
   respondents shall not be ordered to pay costs of this application.

   
   

2. Granting
   the Applicants such further and or alternative relief.

   
   

3. That
   prayers 1(a) operate with immediate effect as an interim order."

   
   

It is,
perhaps, worth mentioning that when the application was first placed
before me, I read through the motion papers and noticed
that although
in their founding affidavits the applicants averred that the site in
question had been lawfully allocated to the
first applicant, no
certificate of allocation as proof thereof had been annexed to
substantiate the averment. It was clear to me,
therefore, that the
application would be strenuously opposed and it could not be fair to
grant the order ex-parte. In the circumstances
I ordered that the
motion papers be served on the Respondents in the normal manner.

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After the
papers had been duly served on all the Respondents only the 6th
Respondent filed notice of intention to oppose and the
answering
affidavit. The other Respondents did not intimate intention to oppose
the application. It may,therefore, be safely assumed
that they are
prepared to abide by whatever decision will be arrived at by the
court.

It is not
really disputed, in the affidavits, that prior to 1979 the second
applicant was the lawful owner of an agricultural land
situated at a
place known as NALEDI here in Maseru. He relinquished a portion
thereof for re-allocation as residential site.

According
to the applicants, in October 1979, the residential site was lawfully
allocated to the first applicant. He was duly issued
with a Form C,
certificate of land allocation. Following its allocation to him the
first applicant errected poles around the site.
However, the 6th
Respondent also subsequently errected poles around the same site.

The
applicants further averred that the Form C which had been issued to
the first applicant went missing in 1983. When he noticed
that other
poles had been errected around the site, the subject matter of this
dispute, the first applicant reported to the second
applicant and the
chief who made him a letter directing him to the third Respondent's
office where he met the fourth Respondent,
an employee of the second
Respondent. Investigations were then mounted in the

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presence
of the parties, the fifth Respondent and two police officers by the
fourth Respondent who ultimately decided that the site
belonged to
the 6th Respondent. The applicants were unhappy with the decision,
hence the institution of these proceedings, against
the Respondents,
for an order as aforementioned.

In his
affidavit the 6th Respondent avers that the site, the subject matter
of this dispute, was lawfully allocated to him on 15th
September,
1979. He has annexed a Form C, certificate of land allocation, as
proof thereof.

The 6th
Respondent concedes that, following its allocation to him, he
errected poles around the site. He denies, however, that the
first
applicant had, at the time errected any poles on the site. According
to him it was only in 1986 that the first applicant
removed his (6th
Respondent's) poles and replaced them by his (first applicant's). He
then decided to fence the site. Whilst he
was in the process
applicants' attorney of record came and claimed that the site
belonged to the first applicant to whom it had
been lawfully
allocated in 1983. He dis­puted the claim and went to the first
applicant himself about the matter. The latter
was, however, not
prepared to discuss the matter with him. He and the fifth Respondent
then went to the third Respondent's office
where they met the fourth
Respondent. The sixth Respon­dent concedes that the fourth
Respondent carried out

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investigations
as alleged by the applicants and it was found that the site, the
subject matter of this dispute, belonged to him
and not the first
applicant. He contended, therefore, that the application should be
dismissed with costs.

The
salient question for the decision in this case is, in my opinion,
whether the site, the subject matter of this dispute, was
lawfully
allocated to the first applicant or the 6th Respondent.
Notwithstanding their averments that the site was lawfully allocated

to the first app-liant in October, 1979 and, therefore, belonged to
him, it is significant that the applicants have failed to produce
any
Form C, certificate of land allocation, as proof thereof. If it were
true that the first applicant's Form C went missing in
1983 and could
not, therefore, be annexed to the motion papers, as the applicants
wish the court to believe, they could have easily
caused the official
register of land allocation to be produced as proof that in 1979 the
first applicant was, indeed, lawfully
allocated the site. They have
failed to do so. The allegation that the firs,: applicant's Form C
got lost in 1983 is, in my view,
un­convincing and certainly no
proof of land allocation.

The 6th
Respondent has, however, produced a Form C, certificate of land
allocation, which is, in my view, conclusive proof that
the site had,
on 15th September 1979, been lawfully allocated to him. For the sake
of argument, I shall however, take it that in
their affidavits

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the
applicants were deposing to the truth when they averred that the
site,the subject matter of this des-pute, was allocated to
the first
applicant in October 1978. Assuming the correctness of my view that
the site was allocated to the 6th Respondent on 15th
September, 1979,
it must be accepted that when in October 1979 it was allocated to the
first applicant the site already belonged
to the 6th Respondent and
was, therefore, not available for re-allocation. That being so, it is
clear-that the answer to the question
I have earlier posted viz.
whether the site, the subject matter of this dispute, was lawfully
allocated to the first applicant
or the 6th Respondent must be in
favour of the latter.

In the
premises, it is obvious that the view the: I take is that this
application ought not to succeed and it is accordingly dismissed
with
costs.

B.K.
MOLAI

JUDGE.

20th
August, 1990.

For
Applicant : Mr. MPhutlane

For
Respondent : Mr. Matete.