CIV\APN\375\91
IN THE HIGH COURT OF LESOTHO
In the Application of :
TLHOLOHELO RAMONE Applicant
v
THE OFFICER COMMANDING MASERU
CENTRAL CHARGE OFFICE 1st Respondent
KAN-CHUNG TUNG 2nd Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice M.L. Lehohla on the 10th day of March, 1992
The applicant moved an application ex-parte on 6th November 1991 seeking
A rule nisi calling upon the respondents to show cause why:-
The respondents shall not be ordered to release to the applicant forthwith the Light Delivery Van, a Toyota SRX, 1989 Model with registration letter and number A 0358 presently in 1st or 2nd respondent's possession.
The 2nd respondent shall not be ordered to pay costs of this application, and the 1st respondent shall not also be ordered to
pay costs of this application in the event of him opposing same;
Granting applicant such further and\ alternative relief as the Court may deem fit.
That Rule l(a) above operate with immediate effect.
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The Court granted the rule nisi in terma of prayer l(a) read with prayer 2. It was ordered that the rule be returnable on 20-11-91. There were subsequent extensions of the rule culminating in the hearing of this matter as an opposed application on 28-2-1992.
The founding affidavit on which the applicant relies sets out that the applicant entered into a verbal agreement with the 2nd respondent.
The terms of the agreement were that the 2nd respondent was to sell the van referred to above, to the applicant for the sum of
M22,000-00. The offer of sale was made to the applicant by the 2nd respondent. The applicant accepted to buy this van.
The applicant avers in paragraph 3 of her founding affidavit that she effected a total deposit payment of M15,000-00 towards the purchase of this van. The sums paid to the 2nd respondent on different dates were :-
M10,000-00 on 3-5-1991
M 5,000-00 on 6-5-1991; making the sum total of
M15,000-00.
The applicant avers that the 2nd respondent gave her possession of this vehicle in consequence of the above transactions. She says she accordingly even renewed the licence
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for the vehicle.
It seems, according to the applicant's affidavit that the 2nd respondent, at the time he sold the applicant the van in question, was expecting his other van back from someone else. When his expectations were foiled he sought to persuade the applicant to accept the refund of the deposit she had paid and hand over the Toyota van to the 2nd respondent; thus cancelling the sale agreement they had earlier come into. When the applicant refused to be part of any such agreement, the 2nd respondent proposed that the applicant should lend him the Toyota van because the 2nd respondent desparately required its use. This was agreed upon. The 2nd respondent received the van for use for a month. However when the applicant went to him to pay the balance the 2nd respondent pleaded with her to have the sale agreement cancelled. It was then agreed that the 2nd respondent should refund the M15,000-00 deposit in order for the sale agreement to be cancelled.
This agreement did not take effect because the 2nd respondent told the applicant that he had found a Ford Van which he was interested in buying from someone else. The Toyota van accordingly was returned by the 2nd respondent to the applicant. However the 2nd respondent once
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more came to the applicant who is the 2nd respondent's sister-in-law (the 2nd respondent being married to the applicant's sister or the sister being his living-in partner) and made the original proposition to her to have the sale agreement cancelled and the deposit refund effected to the applicant who once more refused to accept this proposition unless she had received the deposit refund. She goes on to aver that to date the 2nd respondent has failed to refund the applicant's deposit.
The applicant then decided it was about time she took steps to enforce her claim against the 2nd respondent with respect to the deposit refund. She approached Messrs Sooknanan and Associates, a firm of attorneys who on their part gleaned from the 2nd respondent the information that he would not effect the refund of the money deposited with him by the applicant unless she returned the van to him. The applicant's reaction was that she would not return the van unless the deposit had been refunded into her said attorneys' trust account. Thus there was a deadlocl.
The applicant avers that while waiting for the 2nd respondent's reaction she was shocked to learn that she was being arrested by police who came to her on 25-10-1991 alleging that she had stolen the 2nd respondent's vehicle. She remained in detention overnight and was released the following morning. The
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police instructed her to take the vehicle to Central Charge Office for safe-keeping pending confrontation with Tung.
Up to this point it would seem the police acted bona fide.
The applicant's then attorney of record wrote annexure "A" to the CID branch of the Royal Lesotho Mounted Police Maseru on 26-10-1991 clarifying the position to the police and for their benefit in the penultimate paragraph as follows :
"We are therefore putting you in the clear picture of this matter so that if the police intend to intervene therein, they should on no account give the vehicle to Mr. Tung as by doing so client can lose her lien over the vehicle and therefore be severely prejudiced, and the police, if they intervene in that manner, can also become liable for her losses".
I have had consideration of the 2nd respondent's answers. It seems to me that he was able to abuse the police, who in turn paid no heed to the warning given them by the applicant's then attorneys of record who went further and made it plain to them the consequences of preferring one side against the other in the disposal of the property in their hands. It would have been prudent if they kept the vehicle in their possession pending the disposal thereof by Court or pending a deadline set to the effect that if no action by either party is taken to lay his or her claim before Court then the police would have the vehicle released to whomsoever.
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The brief position in law is tha the applicant was in peaceful possession of the vehicle in question when the police, through false claims by the 2nd respondent that it was stolen took it into their possession. There is nothing wrong with that except that a possible charge could lie against the 2nd respondent for wasting the time of the police by laying false charges of theft against the applicant. But as soon as they gave the vehicle to the 2nd respondent then the question of their dispoiling the applicant became clearly effectuated.
Even though the applicant was not deprived by force of the possession she had of the vehicle, the fact that she brought it to the police station herself cannot preclude the coercion, legitimate or otherwise, that she must have mentally encompassed should she refuse to comply with the police instruction to bring it to them and thereby part with it. Had the police stopped at this point it is arguable that nothing could be said to justify doubts concerning their bona fides for then they were entitled to pursue the complaint in their possession that theft had been committed. But they went further and decided to give the vehicle to the 2nd respondent thereby depriving the applicant of the lien she had over the vehicle despite forewarning by the applicant's former attorneys. But a question of some nicety is that in holding the van as they did the police were not acting as the 2nd respondent's agents. My concern though is that the 1st
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respondent could not have released the van to the 2nd respondent with any warrant of good conscience.
That being the case the finding of the Court is that the 1st respondent through its own agents has despoiled the applicant of her peaceful possession of the van. The rule is thus confirmed with regard to the 1st respondent and discharged with regard to the 2nd respondent.
With regard to costs it would appear that while it would be fitting that the 1st respondent should bear the applicant's costs the 1st respondent has been relieved of the liability to pay costs by the applicant herself stating in her Notice of Motion that the 1st respondent would be liable for costs in the event of its opposition to this application; and the 1st respondent did not oppose it. Thus although in her prayers the applicant asked for further or alternative relief it would be unfair to saddle the 1st respondent
with costs even though it took the applicant's word that it would pay her costs only in the event of its opposition to her application.
With regard to the 2nd responent the question of his paying costs to the applicant, despite that it is through his false claims that the police virtually "shot themselves in the foot", is precluded by his success in this proceeding which culminated
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in the rule being discharged against him. While this success would necessarily entitle him to costs against the applicant it seems to me that it would be unfair that while legitimately pursuing her rights uner the law and having successfully done so against the 1st respondent she should be made to pay the 2nd respondent's costs yet the latter's conduct has not been above board; albeit that he has been salvaged by the fact that nothing shows that when he received the van released to him by the 1st respondent, he was aware that he would be attracting liability flowing from the act of spoliation clearly committed by the let respondent.
Consequently there will be no order as to costs.
JUDGE
10th March, 1992
For Applicant : Mr. Nthethe
For Respondent: Mr. Phoofolo
