CIV/A/34/94

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

LEKENA
MAKIBI APPELLANT

and

'MAKHETHISA
TAU RESPONDENT

JUDGMENT

Delivered
by the Honourable Acting Justice Mrs. J.K. Guni On the 17th day of
October, 1995.

In this
Action plaintiff sued this defendant for payment of the sum of
(M2,000-00) two thousand Maloti being a purchase price of
goods sold
and delivered to the defendant by plaintiff at the defendant's
special request. There are no summons or the copy of
the summons
commencing Action in this file. The REQUEST FOR FURTHER PARTICULARS,
THE FURTHER PARTICULARS provided as requested,
and the evidence led
at the trial, all give the impression that the Action instituted by
the plaintiff against this defendant was
as described above.

The
defendant's PLEA to plaintiff's claim as amplified by the further
particulars, is total and absolute denial of indebtedness
of any kind
for anything. The amplified claim is to the effect that the parties
entered into an oral agreement

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in terms
of which plaintiff was to prepare and lay out the ground for the
purpose of manufacturing concrete blocks on the plot next
to
defendant's restaurant and give 2,000 of those cement blocks to
defendant as a price for plaintiff to acquire ownership of that
same
unnumbered site at LONDON, PITSENG HA TAU, in the district of LERIBE.

Alternatively
or in addition the plaintiff requested to be allocated a Dry cleaning
business site. He indicated to the defendant
that he would like to be
given defendant's site near or at her restaurant. Plaintiff was
allowed to use the site for the manufacturing
of concrete blocks.
Plaintiff was to give 2,000 of those blocks as price for the site for
which defendant was to transfer title
to plaintiff.

Defendant
counter-claimed. In her counter-claim defendant averred that she is
the owner of the site in question. Since November
1987 plaintiff is
in wrongful and unlawful possession and occupation of the said site
and notwithstanding demands refused to vacate
the same. Defendant
claimed damages at the rate of M250-00 per month as rental for the
use of her site. In his PLEA to defendant's
counter claim, plaintiff
admitted that he was in possession of the premises referred to but
denied that such possession is wrongful
or unlawful. Plaintiff
claimed that he is in possession of such premises in terms of the
agreement entered into between himself
and defendant, whereby
defendant promised to transfer title to plaintiff, if plaintiff
supplied her with 2,000 concrete blocks.
Defendant having failed to

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perform
her part of the contract, plaintiff has offered to vacate the
premises on condition defendant pays the price of the 2.000
concrete
blocks which she has received.

The trial
took place at the Subordinate Court, sitting at the LERIBE DISTRICT.
Judgment was entered for defendant in terms of prayers
(a), (b), (c)
and (d) of her counter claim. Plaintiff has appealed against that
judgment. The grounds of appeal are filed of record
at page 88 of the
typed record. I need not repeat them. It will suffice merely to say
that it is a complaint against the findings
of the trial Magistrate
in this case, with regard to the evidence led before him.

It
appeared in the cause of the trial, from evidence that plaintiff did
deliver concrete blocks to the defendant as per their agreement.

Defendant found those blocks unsuitable for the purpose for which
they were made. Plaintiff was told by defendant to take possession
of
those concrete blocks and sell them. Plaintiff requested defendant to
indicate at what price. Defendant gave plaintiff no price.
Plaintiff
complained that those blocks are so badly or poorly made that they
will ruin his business if he sells them. Defendant
suggested to
plaintiff that he should sell those concrete blocks at (M75)
seventy-five Maloti or even cheaper. Plaintiff appears
to have had
some regard to his reputation as a businessman. He did not feel he
should be known to sell badly and poorly made concrete
blocks which
were made by him for defendant. Was he being dishonest? He expected
defendant to receive and use them. Why, if he
could not sell

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them?
Defendant therefore never took possession of those concrete blocks.
At page 87 of the typed record, it is the learned Magistrate's

finding that plaintiff has not performed his part of the contract,
and he is accordingly in possession of the (that unnumbered)
site at
London Pitseng Ha Taw unlawfully.

The
parties in the main claim in convention, in the counter claim or
claim in reconvention and also on this appeal are referred
as in the
claim in convention.

In this
action defendant sought to eject from that unnumbered site the
plaintiff by means of rei vindicatio. Defendant has therefore
place
reliance for her claim upon her ownership of that same unnumbered
site at London Pitseng Ha Tau. M B INVESTMENTS (PTY) LTD
v OLIVER
1974 (3) SA 269, MYAKA v SAVEMANN and ANOTHER 1948 3 SA 457.

The
burden to prove her ownership rests upon the defendant. CHETTY v
NAIDOO 1974 (3) SA 18, MYAKA v HAVEMANN, SUPRA. The defendant
set
about to prove her ownership of the said unnumbered site by producing
before the trial Court two documents: namely, form C
and a lease. The
production before Court of these two documents is a prima facie
evidence of ownership but not conclusive. TAHLO
MATOOANE v MOTLATSI
QHOMANE CIV/T/270/93. When title is disputed; over and above the
production of these documents, there must
be acceptable competent
evidence establishing better title. TEKATEKA v MOTLAMELLE LLR 1979.
Plaintiff complains that these documents
were obtained by fraud.

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There was
no evidence before Court to support that allegation. The learned
Magistrate properly admitted both documents as proof
of what they
contained.

Defendant
gave oral evidence that she applied for allocation of that site and
her application for an allocation was successful and
as a result she
was issued with form C. In addition there was further evidence led
from other witnesses to the effect that they
came to know that the
site in question belongs to the defendant. There is evidence of MAAMA
TAU defendant's brother-in-law who
knew that defendant applied to be
allocated that site and that her application for allocation was
successful. This plaintiff when
he wanted the site to use for the
purpose of manufacturing concrete blocks approached MAAMA TAU
requesting him to use his good
offices to intervene with his
sister-in-law and persuade her to sell that site to him. Yet another
witness, one LIRA SESIUOANE
a headman of one of the villages under
the Chieftainess 'MAKHETHISA TAU, defendant herein, was asked too by
plaintiff to pray her
Chieftainess not to evict him from that site.
Both parties, plaintiff and defendant, informed LIRA SESIUOANE that
the site belongs
to the defendant. The evidence of one SEMPE is to
the effect that plaintiff asked the Chieftainess to allocate a site
to him for
business. Plaintiff indicated that he would very much like
to have a dry clean business site next to the Chieftainess's
restaurant
business. According to SEMPE the Chieftainess agreed that
plaintiff should use that site on one condition that plaintiff gives
her concrete blocks and that she will therefore give him form C -
proof of

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allocation
to him.

The land
Act has prescribed the procedures to be followed for allocation of
land. The same Act has created and authorised or empowered
a special
committee for the purpose of allocation of land. Plaintiff, could not
produce before Court any of the documents that
could establish or
support his claim that he applied for the site or that the site was
to be allocated to him. In his PLEA to defendant's
counter claim
plaintiff admitted that the site he is in possession of is the same
site referred to by defendant; but added that
he is in possession of
it in terms of the Agreement between himself and defendant. This is
the Agreement talked of in this proceedings
as the agreement to ,
transfer ownership of that site to plaintiff by defendant on
condition that plaintiff gave defendant concrete
blocks, (2,000) two
thousand in number. By entering in an Agreement whose terms require
defendant to transfer title to plaintiff,
plaintiff has recognised
and accepted defendant's title to that site. Defendant must be the
owner. Defendant must have title before
she can transfer it.
Plaintiff's actions from the beginning indicate that defendant had a
right or interest on chat site which
interested this plaintiff. So
far ownership of the said site is established. The site is that of
the defendant. Plaintiff admitted
that he is in possession not
wrongfully and unlawfully as defendant claims but in terms of the
agreement between plaintiff and
defendant. This is an important
averment. BUSHOFF v UNION GOVERNMENT 1932 TPD. It is in the common
course that there was an oral
agreement between the parties. The

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nature
and precise terms of the said agreement is also the well established
fact. KARIM v BACCUS 194 6 MPD 721.

There was
evidence to show the trial Court that demands have been made by
defendant for plaintiff to vacate but plaintiff has refused
to
vacate. LIRA SESIUOANE testified to the effect that he was asked to
plead with the Chieftainess on plaintiff's behalf to reconsider
her
request to plaintiff to vacate the site. Plaintiff in his PLEA to
defendant's counter claim is an offer to vacate on condition
of
payment of the sum claimed in the summons.

The
learned Magistrate found that plaintiff failed to perform his part of
the contract. That is to say plaintiff failed to deliver
concrete
blocks. Plaintiff cannot therefore succeed in his claim for payment
for those concrete blocks. The learned Magistrate
may have not
pronounced the magic words "that the Plaintiff's claim in
convention has failed" but his judgment has clearly
spelled that
out.

I must
also deal briefly with the issue of the filing of the pleadings.

The
tilling of the pleadings is meant to put the parties in a very clear
position of each other's case.

Plaintiff
issued out summons commencing Action in the Magistrate's Court where
he claimed payment for goods sold and

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delivered.
The relief sought left no doubt in the defendant's mind that she is
required to pay some money to the plaintiff. She
wondered what could
that payment be for. When asked to spell out what goods he meant,
plaintiff twisted and turned. In those zic
zac he performed plaintiff
indicated for the first time that he paid for an allocation or
transfer of unnumbered site to him by
defendant. This allegation puts
quite a different colour to plaintiff's claim against the defendant.
Could the defendant be certain
what she was being sued for? Despite
the ziczacing there still was no exit for plaintiff in bis circle of
dilema. This case and
evidence adduced therein demonstrated
dishonesty, deceit bordering on corruption. Plaintiff had not called
any member of the land
allocation committee. Plaintiff had not shown
the trial Court if at all the prescribed procedures for application
for allocation
were followed. Therefore this was not a question of
Allocation but that of transfer from the owner. Plaintiff failed in
his claim
in convention, defendant has succeeded in her claim in
reconvention. As regards damages the plaintiff should pay at the race
of
(M250-00) two hundred and fifty Maloti from November 1987 to the
date he vacates the site.

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The
Appeal is dismissed with costs.

K.J. GUNI

ACTING
JUDGE

For the
Appellant: Mr. Hlaoli

For the
Respondent: Mr. Mafisa