CIV\A\24\90
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
MOLETSANE MONYAKE Appellant
v
THABISO SANTHO Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice M.L. Lehohla on the 11th day of December, 1992
The appellant Moletsane Monyake who was the defendant in the court of first instance (Majara Local Court) appeals to this Court against a decision that went against him in the Judicial Commissioner's Court where the appeal of the respondent Thabiso Santho who was the plaintiff in the court of first instance was upheld and thus upsetting the decision of the Central Court i.e. Motjoka Central Court to which the plaintiff had appealed against the decision of the Local Court which is the court of first instance.
I shall refer to the parties in terms of their designations in the Local Court,
In his grounds of Appeal filed before this Court the defendant
2
sets out his grievances against the Judicial Commissioner's decision as follows :s
The learned Judicial Commissioner erred in law in holding that the Form C of the Appellant a quo dated 10th April 1967 (Exhibit A) was a valid document of title inasmuch as same was purportedly issued on a date prior to the coming into force of Land Act 1973.
The learned Judicial Commissioner erred in law in not finding that the Form C (Exhibit B) of the Respondent a quo is a valid document
evidencing lawful allocation of the land in question to Respondent a quo.
The learned Judicial Commissioner erred in failing to find that Appellant a quo had removed from "Baruting" under Chief
Thebe L. Masupha and that as at 4th April, 1980 the said land was then capable of being allocated lawfully to the Respondent a quo.
The learned Judicial Commissioner erred in failing to find that the land allocating authority of "Baruting" under Chief Thebe L. Masupha had done everything possible to find the Appellant a quo.
The learned Judicial Commissioner erred in failing to recognise that there had been dual allocation of the same land to Appellant a quo and Respondent a quo and that in the circumstances the provisions of section 82 of the Land Act 1979 had to apply in favour of the party that had used the land and made improvements thereon.
In his brief pleadings presented before the Court of first instance the plaintiff indicated that he is a subject of Chief Lerotholi Masupha and is resident at Sehlabeng. He also showed that the land in dispute was allocated to him by the said chief. It appears that under some arrangement with the plaintiff who was away teaching at Masianokeng the defendant ploughed this land. It
3
is not clear from the plaintiff's pleading whose benefit it was for that this field was ploughed. But the plaintiff's grievance becomes plain that "the defendant is now refusing with this land,"
In turn the defendant in his pleadings claimed the land as his and produced proof of allocation to him in the form of a "Form C" issued on 4th April 1980 according to the date stamp of the Chief of Thuathe and is signed Thebe L. Masupha. On the other hand the plaintiff relies on a Form C issued on 10-4-67 as proof of allocation to him by the Chief of Thuathe. It is signed Lerotholi T. Masupha, The handwriting and the chief's signatures on these documents are not similar. However nothing in the various courts through which this matter went turned on this aspect of the matter because clearly the allocations were effected by two different holders of the office of chief.
A 60 year old Chief Lerotholi Masupha personally gave evidence in favour of the plaintiff and testified that he had allocated land in question to him and that to his knowledge that land still belonged to the plaintiff. Chief Lerotholi also testified that when a person is not using the land allocated to him he should be called and the land be removed from him. Chief Lerotholi indicated that Chief Thebe was the chief in office during the period of nine years when Chief Lerotholi was absent. He also testified that the Form C issued to plaintiff was issued some two months before
4
the law concerning Form "Cs" came into operation. It would seem therefore that even though the plaintiff relied on his Form "C" the real truth is that he was allocated this land in accordance with the original traditional manner of allocation set out in the Laws of Lerotholi in terms of which a married man who was a certain chief's subject would plead with the chief to allot him land and the latter would comply either by giving the applicant virgin land or land left vacant through emigration of a previous owner or land which reverted to the Chief for re-allocation upon the death of the holder to whom it had been allocated.
As stated earlier the plaintiff said he was allocated this land in 1967, ploughed it for four years and in 1971 entered into agreement with defendant the terms of which were that defendant should use it as land lent to him by the plaintiff.
One Pitso Matlosa aged 50 years at time of giving his testimony for the plaintiff swore that he was present when plaintiff was allocated the land on 10th April 1967. He said he saw the field being measured. He told the court of first instance that the plaintiff asked him to accompany him to the defendant. In the encounter that took place between the parties, the plaintiff told the defendant to leave the field and stop using it, whereupon the defendant expressed his unwillingness to do so on the grounds that he had incurred a lot of expenses on the field. Thus the
5
defendant, according to Pitso expressed the willingness to comply with the plaintiff's contention only if plaintiff had made good expenses incurred in the improvement of the land. The parties' discussion remained in a deadlock which was referred to Chief Lerotholi. Pitso does not say how, if at all. Chief Lerotholi solved the dispute. But in the interim the land had not only remained fallow but had passed some hands since the plaintiff's perceived disappearance. Apparently the land had been allocated to one Phakisi by Chief Thebe when it became clear that the plaintiff had removed from the area entitling him to the use of this land.
The defendant agrees that the land was allocated to the plaintiff in 1967. He agrees that the plaintiff agreed that he should use this land. However the plaintiff failed to report to the defendant how he had fared, for the defendant's benefit, in restraining the chief from expelling the defendant's tractors which were to plough that land. The next thing the defendant saw was Phakisi who came and occupied that land for six or seven years. However in 1969 the defendant realised that Phakisi had removed roofs from a house he had erected there and left. Thereupon the defendant approached Chief Thebe for allocation of this land to him and the chief complied.
6
It is however difficult to see how a piece of land allocated to the plaintiff in 1967 could have been allocated to Phakisi who had used it for six or seven years before abandoning it in 1969, unless the implication is that the plaintiff and Phakisi were using it together for the period 1967 to 1969 as the land allocated to each of them separately. However I don't think this is an accurate recording of the evidence because the plaintiff himself said he didn't know that this land was allocated to Phakisi after the presumption that the plaintiff had removed from the area entitling him to the use of this land for a long time because then he didn't even know when walls were built and trees planted in his land. On this basis the Local Court found in favour of the defendant in terms of section 82 of the Land Act 1979 to the effect that :
"Where at the commencement of this Act any land or part thereof has, whether by error or otherwise, been the subject of two or more allocations, the allottee who has used the land and made improvements thereon shall hold title to the land in preference to any allottee who left the land unused and undeveloped."
Much as this is a very useful piece of legislation capable of resolving land disputes between parties on a sound basis of finding for the party who improved the land in the event, as in this case, that either party holds valid proof of allocation to it of the same land by lawful authority, it should not be overlooked that in his evidence the plaintiff emphatically stated that this land had never been removed from him by either Chief Tholo "Lerotholi" or Chief Thebe.
7
In fact Section 9 of the 1967 Land (Procedure) Act shows that
"(1) A Principal Ward Chief, a Chief or a Headman shall, before revoking or derogating from any allocation or grant or terminating or restricting any interest or right in or over land, give at least thirty days written notice to the person affected thereby of his intention to do so.
The notice shall set out clearly the grounds upon which such allocation or grant is to be revoked or derogated from or the interest or right is to be terminated or restricted.
Such notice shall be deemed to be given if served upon the person affected thereby by delivery of a copy thereof -
to him personally
at his residence or place of business or employment to some person apparently not less than sixteen years of age and apparently
residing or employed there;
to the nearest relative of that person; or
by registered letter if his postal address is known."
Chief Thebe testifying on behalf of the defendant has not stated which, if any, of the methods set out above was invoked by him before terminating the plaintiff's right to this land. He must have known that the plaintiff and defendant had had an agreement concerning the use of this land. Thus if he inquired from the defendant where the plaintiff could be reached he would have been able to notify the plaintiff of his intention to terminate the latter's right to this land. He could have approached the office of the police with a view to finding where the plaintiff could be
8
reached. Even if at the end of the day he was unsuccessful at least such an attempt could not be ignored by the courts. Indeed Chief Thebe stated that he asked Chief Lerotholi where the plaintiff was and the latter said he didn't know. But it was never put to Chief Lerotholi that this was the case. As stated above it is not enough for Chief Thebe to say he looked for plaintiff for two years without saying where he looked for him.
The plaintiff's version compared with that of the defendant concerning the times when the land was acquired and what was happening to it during the periods mentioned carries more conviction. Plaintiff said he acquired the land in 1967 used it for four years and in 1971 came into agreement with the defendant that the latter could use it. Then in 1985 the plaintiff asked the defendant to vacate the land. On the other hand the defendant's account of what happened between the year of his acquisition of use of the land in 1971 and 1980 is rather garbled for he says Phakisi stayed on this land for six or seven years till removing from it in 1969. This would suggest when the plaintiff acquired this land in 1967 Phakisi had been using it for some four or five years and that the two owned it together till 1969. But proper evidence runs counter to this for it says Phakisi only acquired the land after the plaintiff was presumed to have removed from the land. And that was after the plaintiff and the defendant had agreed on the use of this land in 1971.
9
All that the defendant's Form "C" suggests to me is that he acquired it during the term and period of subsistence of his agreement with the plaintiff and without the plaintiff's knowledge. The defendant acquired his Form "C" in 1980 and the plaintiff booted him out in 1985.
Furthermore it is difficult to comprehend how the plaintiff could account to the defendant in respect of the interference that the latter experienced in 1968 when the agreement between the parties was only entered into three years later i.e. 1971. See page 2 response 8. A further question put to plaintiff by the defendant concerning when a letter to quit use of the land was written suggests that this was in 1984. Though the defendant denies that it was written by the defendant' s son and not the defendant himself the fact remains that 1984 is so close to 1985 that on a balance of probabilities the plaintiff's version should be believed that he wrote the letter in 1985. I would go further and say that there is nothing to suggest that the defendant was obliged to approach the plaintiff for assistance in thwarting the Chief's interference with the defendant's use of the plaintiff's land in 1968. I say this because no arrangement had come into existence between the parties then. The plaintiff's denial at page 2 response 8 would seem therefore to be valid. Thus Chief Thebe's answer in response 2 at page 5 is a lame excuse for his failure to perform a mandatory function of informing the plaintiff of the
10
intention to terminate the latter's right to land by delivering to him personally a copy of the notice for the purpose. It is not enough in the circumstances for Chief Thebe to say to the plaintiff
"I did not know that defendant knew your place of residence". However it would have been desirable if the legislature furnished a further requirement that notice of intended revocation of one's rights to land should be published in a newspaper circulating in the country. But this of course does not relieve Chief Thebe of the statutory duty to take reasonable steps to ensure that the plaintiff was aware of the chief's intention to deprive him of his land. Regard should be had to the fact that when directing that a thing be done the law seems to direct also that means by which such a thing can be achieved,be applied. Hence I think it would not have been unreasonable for Chief Thebe to have approached the police in his area and questioned them about the whereabouts of the plaintiff. Surely it cannot suffice for him to say "I looked for plaintiff for two years........Defendant applied for this site and I allocated it to him" without saying where he looked for the plaintiff and what means he employed of looking for him.
If indeed the defendant had acquired Form "C issued by Chief Thebe in 1980, then if this was the third year that this land had laid vacant after that chief had failed to locate the plaintiff in the previous two years, it would seem that the chief's effort to look for the plaintiff started in 1977. But this falls within the
11
period when the terms of agreement between the plaintiff and the defendant would seem to have been in subsistence. Termination having been attempted by the plaintiff in 1985. Nothing on record suggests that the plaintiff throughout this period was aware of the designs being hatched by the defendant in respect of the agreement entered into in 1971.
It appears to me then that the defendant in obtaining a Form "C" from Chief Thebe he had devised means by which to undermine the agreement between him and the plaintiff and thereby snatch the land from the latter while the plaintiff was labouring under the impression that the defendant's use of the land in question was in terms of the agreement reached between the parties.
It was submitted on behalf of the defendant that because the plaintiff sought to rely on a Form "C" which had not yet come into operation in April 1967 his claim ought to be dismissed as not entirely aboveboard. Indeed if this was the case it would not matter that the defendant himself was at fault. The operative principle being that where there is equilibrium between parties or where both parties are at fault the courts would generally favour the case for the defendant.
But in the instant case the plaintiff led evidence which
12
clearly indicated that the land was allotted to him in accordance with the law predating the 1967 Land(Procedure) Act. Thus he did not exclusively rely on the suspicious Form "C". Moreover he was quite candid about the fact that he had obtained it before the coming into effect of the 1967 Land(Procedure) Act. This appears to have been only two months before the actual coming into effect of such Form "Cs".
It would also be productive to heed the words of Milne JA summarised in a headnote in Sehloho vs Majara 1971-73 LL.R at 194 that :-
"Where a Chief or Headman gave written notice under s.9 of the Land (Procedure) Act 1967 of his intention to revoke or derogate from any allocation or grant of land, it was essential the notice informed the person affected thereby that his rights in the land in question would be revoked or derogated from unless within a specified period, being not less than 30 days, he indicated to the Chief or Headman that he wished to make submissions or representations to the contrary. The service of such a notice was a condition precedent to any lawful revocation of rights in land."
Thus in the instant case the plaintiff was denied this important right and opportunity to make representations to the contrary, in which event it is stated
"...........Quite apart from other procedural defects, neither the Chieftainess' letters had complied with the above-mentioned
requirement. Since the service of good notice within the meaning of s.9(l) of the 1967 Act was a condition precedent to any lawful
revocation of a person's rights in land, the Chieftainess' action in depriving the respondent of the field and reallocating
13
it to the appellant was unlawful and invalid."
It seems that the Central Court committed some irregularity in ordering that the plaintiff should be allowed to lead further evidence which was given by Kubute Pheko in the Local Court. My perusal of the record does not show that the plaintiff had made this request.
As I postulated earlier, even if there were factors favouring the defendant's case in the courts below there appears at this stage to have arisen another factor relating to procedure to be followed in bringing an appeal before this Court. I hasten to observe that this was not done by the defendant on appealing to this Court from the Judicial Commissioner's Court. The procedure is set out in the High Court Rules in terms of Legal Notice No.9 of 1900 Rule 52(1)(a) saying -
When an appeal has been noted from a judgment or order of a subordinate court the appellant may within four weeks after noting of the appeal apply in writing to the Registrar for a date of hearing.
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,
If the appellant fails to apply for a date of hearing within the four weeks as aforesaid, the respondent may at any time before the 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 so.
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
14
reasons shown shall otherwise order.
If an appeal lapses but a cross appeal has been noted the cross appeal shall also lapse unless application for a date of hearing is made to the Registrar for a date of hearing of such cross appeal within three weeks of the date of lapse of the appeal".
Not one of the steps set out above has been followed by either of the parties in so far as such step relates to either of them.
The plaintiff who sought to rely on provision (c) did nothing to accommodate himself within the purviews of that provision, save that his counsel during arguments submitted this as the reason for holding that there is no appeal before this Court, and buttressing this view by relying on C. of A. (CIV) 20 of 1987 Motlalentoa vs Monyane and Tlokotsi (unreported).
In response Mr. Moiloa for the defendant sought the Court's grace by reference to Rule 59 saying :-
"Notwithstanding anything contained in these Rules the court shall always have discretion, if it considers it to be in the
interests of justice, to condone any proceedings in which the provisions of these rules are not followed."
This Rule which to my mind firmly buttresses the statement that the Rules are made for the Courts and not the Courts for the Rules was considered in Motlalentoa above not only by the High Court but finally by the Court of Appeal; in the result it was maintained that it serves no purpose if the Rules exist but parties
15
including their respective attorneys or counsel don't abide by them.
The learned Judicial Commissioner delivered his judgment on 20-7-88 and issued his certificate on 16-11-88. In terms of paragraph 2 of that certificate he clearly indicated that the "applicant is required to comply with the rules of this Court"
Mr. Moiloa for the defendant told the court that he had come several times to the office of the Registrar indicating his difficulty
concerning compliance with provisions of Rule 52. He however did not write to the Registrar. He said that the difficulty facing appellants in matters arising on appeal from subordinate courts, especially the Judicial Commissioner's Court, is that the period of four weeks within which to apply to the Registrar for a date of hearing is rendered nugatory in the sense that by the end of this period no record is ready to be placed before the Registrar to accompany the grounds of Appeal on the one hand. On the other hand the Registrar may not and cannot be expected to set down an appeal for a certain date when no record of appeal is at hand to show that on the date fixed the appeal would be proceeded with.
These may well be valid observations. But this Court can only be persuaded to exercise its discretion judicially if there is
16
evidence properly so perceived on record. Presently there is no sworn statement from the Registrar that his office was approached several times with regard to difficulties set out above. There is no sworn statement from the defendant or his attorneys to enable the Court to have a proper assessment and evaluation of these difficulties in order to have a basis for exercising its discretion in the interests of justice. On the contrary one is faced with a Court of Appeal decision which endorsed the High Court conclusion that -
"to permit the Registry and practising attorneys to become so slack in bringing a matter as important as an appeal before this Court is, in my opinion, unacceptable. I am certainly not willing to condone it. The correct procedure is simple and straight forward and the Registrar must see to it that it is followed in future".
No notice of motion has been filed in an attempt to persuade the Court: to help circumvent what difficulties are posed by the period set out in Rule 52. Consequently no proper notice for the prayer for condonation of failure to comply with peremptory provisions of this Rule is on hand.
In exercise of my discretion I would reject the submission that provisions of Rule 59 be brought into play. I also rule that in terms of Rule 52(1)(d) the appeal is deemed to have lapsed on 12th December, 1988 which date came two months after the noting of the Appeal.
17
The plaintiff is awarded costs in all courts below. He will however be awarded only 75% of his costs in this Court because of his failure to act in terms of Rule 52(1)(c) and his preference to have left the valid point that there is no appeal before this Court
till the eleventh hour when arguments were heard which was at a great cost to the Court's precious time.
JUDGE
11th December, 1992
For Appellant : Mr. Moiloa
For Respondent : Mr. Nathane
