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CIV\APN\222\92

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

DANIEL
MOTHANDI TOMANE Applicant

and

TSABO
MATOOANE 1st Respondent

ATTORNEY
GENERAL 2nd Respondent

JUDGMENT

Delivered
by the Honourable Mr. Justice T. Monapathi on the 17th day of March
1995

In his
notice of motion Applicant asks for an Order for cancellation of
lease number 13284-234 in the name of the First Respondent
and
ejecting him from the site allegedly allocated to Applicant. He also
asks for costs.

The First
Respondent has filed his notice of opposition and an answering
affidavit. Applicant later filed his replying affidavit,
supported by
those of 'MALERATO HLEHLISI and 'MAPOLOKO TAU. The two supporting
affidavits only go as far as to state that the disputed
site is
vacant and had been fenced by the

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Applicant
not deponents as the First Respondent contended in his answering
affidavit. That a security fence was erected sometime
in 1992.
MAPOLOKO TAU has this to say in her affidavit:

"3.

I have since been a resident of Majoe-a-litsoene since January 1984
and I have built a house on the eastern side of the plot which

belongs to the Applicant.

4.

I have know the Applicant long before I resided at Majoe-a-litsoene
and I know the plot originally belonged to his late mother

Masekeifana Tomane whom I know very well.

5.

The fence on the eastern side of the plot belongs to me, whether the
barbed wire on both the north and sough of the plot was erected
by
the Applicant's mother on or about 1989 and verily believe that it
belongs to the Applicant." (My underlining)

Indeed
the Form C "Annexure A" attached to the Applicant's
founding affidavit is in the name of the deceased MASEKEIFANA.
It is
one of the points taken by Mr. Matooane that the Applicant has no
locus standi nor title to the land in as much as it can
only amount
to speculation as to how he came into the title. When being attacked
by Mr. Hlaoli that he is raising the point only
during argument and
has not referred to it in his affidavit (which are both pleading and
evidence) Mr. Matooane replied that he
was entitled so to do on the
following grounds: Firstly, it was a legal point which he could raise
at any stage in the

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proceedings.
Secondly, he had never admitted that Applicant was allocated the site
and had all along denied such allocation. To
that extent he was
entitled to raise the point as to the Applicant's title to the land.
In line with his latter contention the
complication in the
Applicant's title is even brought to the forefront by the affidavit
of MAPOLOKO TAU only in the replying stage.
This means as Mr.
Matooane submitted he had no chance to address the point by way of a
further or additional affidavit. In any
event he took a legal point
which he was entitled to take on any aspect of the proceedings at any
stage even without prior warning.

But it
was clear as well as common cause that the Applicant's Form C was in
fact in the name of MASEKEIFANA TOMANE thus bolstering
Mr. Matooane's
contention that the Applicant had no title to sue.

The
parties however proceeded on the basis that it was common cause that:

1. The
   Applicant's Form c had never been registered in accordance with
   section 15(3) of the Deeds Registry Act 1967 to-date and until
   1979
   when the First Respondent applied was issued with a Form C having
   been allocated the site. And that in such a situation,
   there having
   been no application for extension by the Registrar of Deeds or the
   High Court the rights to the site fell to be
   treated under section
   15(4) of the Deeds Registry Act 1967.

   
   

2. That
   the First Respondent's Form C had never (except for and at issue of
   a lease) been registered in

   
   

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accordance with section 15(3) of the Deeds Registry Act 1967 (except
as aforesaid) until at registration of the lease. This was
held to
mean that at registration of the First Respondent's lease the Form C
was not a lawful certificate but has expired and had
become of no
force and effect on the interpretation of section 15(3) of the Deeds
Registry Act 1967.

It is on
this basis that Mr. Hlaoli argued that the issue of a lease to the
First Respondent had been founded on a stale certificate
whose basis
was irregular and on that score the lease was invalid and ought to be
cancelled. This was the second leg of Mr. Hlaoli's
argument. Mr.
Hlaoli could not accept that the effect of the registration of the
lease by the Registrar was in pursuance of and
was consistent with
the extension of the period of extension as envisaged in section
15(4) of the Deeds Registry Act 1967. When
it was suggested that the
registration itself would have the effect of condoning such defect
Mr. Hlaoli replied that there had
to be a special certificate or
endorsement issued by the Registrar and in the absence of such
endorsement (to be shown to exist
by the First Respondent) no
remedial effect could result by the mere act of registration of the
leases Mr, Hlaoli appreciated the
technical problem the office of the
Attorney General not being able and willing to bring forth such
evidence by the ever present
attitude of not opposing and deciding to
abide by judgment in a way standing aside to let the other parties
battle it out. It meant
therefore that existence of the endorsement
would amount to speculation and that the role the

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First
Respondent has failed to discharge the onus.

Mr.
Hlaoli's first argument had been that the First Respondent had failed
to prove allocation to the site. This he ought to have
done by
bringing forth affidavit as to application and allocation by at least
a member of the allocating committee or the Chief
of the area. To the
extent that he has failed to do so no basis had been made for the
issue of a lease to him. I agree with Mr.
Hlaoli's submission based
on the case of Majoro vs Sebapo 1981 (1) LLR 15 that a certificate of
allocation is merely prima facie
proof and once such is challenged
the onus of proof shifts to the other side. I have already made my
remarks about the proffessed
nature of the Applicant's title about
this site which is alleged to have been that of her grandmother. I
have also understood that
each side has always been contesting each
other's alleged allocation. With the problems attended or resulting
from the interpretation
of the section 15(3) of the Deeds Registry
Act 1967 being debatable or doubtful or tainted I would regard the
allocations to be
on the same footing. This view I take subject to my
evaluation of the fact of registration of the lease by the First
Respondent.
I noted that at all times none of the parties occupied
the site except for .the prior fencing by the Applicant's mother
(which
the First Respondent disputes) and the security fencing by the
First Respondent which is not denied.

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I have
understood Mr. Matooane to be having a two fold argument. The first
leg is : That despite what may have been a stale certificate
of
allocation (Form C) the Land Act 1971 provided for registration of
title as envisaged in the following scheme :

1. In
   terms of section 29(1) (a) (b) (ii) and (2) a lease may be prepared
   by the Commissioner of Lands for registration by the Registrar
   of
   Deeds. This is in pursuance of conversion of titles to leases as
   envisaged in section 28 (1) and thence by persons with titles

   lawfully held at the date of. commencement of the Act shall be
   deemed to be converted into leases.

   
   

2. On
   receipt of application in terms of section 20 of the Land Act the
   Commissioner of Land shall act in terms of section 33(1)
   and shall
   cause to be published in a national newspaper notice of application
   for leases and licences under section 29, 30 and
   31 which notice
   shall give the name of the Applicants and an , adequate description
   of the land to which the application relate."

   
   

The First
Respondent says that he had the application publicized in terms of
section 33(1) of the Land Act 1979. I did not hear
from the
Applicant's Counsel that the absence of the publication (which he did
not allege) or any alleged irregularity (he did
not contend there was
any) was a basis for his claim for cancellation of the lease. This
means that as Counsels agreed there was
no grounds upon which the
registration of the lease would be reviewed (as a procedure in a way
that lawyers understand it to mean).

Following
on this agreement there was no room for review of

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the
matter, Mr. Matooane for the First Respondent submitted that there
was therefore no basis for and no way of looking into the

registration of lease which has had the effect of containing an
indestructible title to the First Respondent in terms of section

23(4) of the Land Act. It meant in the lawyers' language there were
no jurisdictional facts upon which the High Court would be
asked to
look into the lease with a view to cancelling it. That there is so
despite the existence of section 7(1) of the Deeds
Registry Act 1967
(in connection with cancellation of deeds upon an Order of Court) Mr.
Matooane submitted that besides the approach
to the High Court which
is permissible when a lease is sought to be reviewed the only way a
litigant would approach the Court is
by way of appeal from the Land
Tribunal.

If is in
the intentment of the Land Act Section 23(1) that such publication in
terms of section 33 having been made: "Any person
claiming title
to land affected by a notice under section 33(1) may within a month
from the date of publication of notice in a
national newspaper lodge
a claim to such land before the Tribunal." Such step having not
been taken by the Applicant Mr. Matooane
submits that any form of
inquiry or looking into the lease has been ousted by operation of the
law. That this is subject to the
reading of section 23(4) which goes
thus: "where no claim has been lodged within the period
specified in Sub­section (1),
any grant made under this part
conveys the legal

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right to
use and occupy the land subject to any rights an adverse claimant may
have to payment of compensation for lawful improvements
made by him
to the land." (my underlining) It is on this note that the First
Respondent said his right to the land was unassailable.

The said
section 15(4) of the Deeds Registry Act 1967 came for consideration
in the judgment of Isaacs AJ in Stephen Motlamelle
vs Johannes
Tekateka CIV\A\9\79 on the 23rd November 1979 which was an appeal
from the decision of the magistrate on an exception
which had been
upheld on the following grounds ;

The Plaintiff should have first lodged an application with the
Registrar within the prescribed period for the registration of the

certificate of allocation or to lodge application for extension of
the period for registration of the certificate within the Court
of a

competent jurisdiction in terms of Deeds Registry Act

I was not
addressed by Counsels on the significance of the innovations of the
Land Act 1979 would have on this requirement of the
Section 15(4) of
the Deeds Registry Act 1967. But I understood quite well from the
Counsels that inasmuch as the Registrar of
Deeds is still the
registering authority compliance therewith would still be a
necessity. That is why Mr. Hlaoli spoke of formalities
such as the
Registrar's endorsement where extension was allowed on delayed
registration as I have spoken about earlier in my judgment.
I
therefore feel persuaded to

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adopt the
reasoning of the leaned Acting Judge's reasons at page 3 (first
paragraph) of the Motlamelle vs Tekateka's judgment as
apposite
herein in that :

"A person who sues for ejectment of a person from land must
either show that he is a registered owner or that he himself is

legally entitled to possession. In the present case the applicant has
shown that allocation of land to him has not been registered.
He must
therefore, in my view, in order to show that he is legally entitled
to possession allege that he has made an application
for registration
within the time set out in the section or within such extended time
granted to him. Without such an allegation
he has not shown that he
has a title to sue and therefore has not disclosed a cause of action
for his claim." (my underlining)

When
taking into account that the title of the Applicant has not been
proved to this Court I feel that I can safely take the view
that Mr.
Matooane's submission is valid. On this reason alone I would dismiss
the Applicant's claim.

Much
debate was taken by Counsels on the applicability of the principles
enumerated in the case of Ntai Mphofe vs Joseph Ranthimo
and Another
(CIV\APN\1S5\87) C of A (CIV) No. 22\1988. The margin in
interpretation between the positions held was so wide that
I had the
impression that they were speaking about two different decisions.
Firstly, the Court of Appeal was prepared to ignore
the two
allocations namely, of the Applicant allegedly made in 1969 and that
of the Respondent allegedly made in 1973, on the basis
of the section
11(1) and 11(2) of Land (procedure) Act 24\1967 read with section
15(2) and 15(4) of the Deeds

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Registry
Act 1967. The effect of the last mentioned sub-section is that the
certificates of allocation were at the material time
null and void or
of no force and effect. This failure to register the respective
rights of use and occupation rendered such rights
to have
consequently been lost and to have fallen away in the distant past.
This meant further that there were no rights that could
be converted
into leases in terms of Land Act 1979. Secondly, there being no
allocations nor competing claims as such section 82
of the Land Act
1979, which refers to lawfully allocated dual allocations and rival
allocations in favour of the allottee who had
made improvement to the
sice cannot be brought into play. Thirdly, accepting that on the 4th
July 1986 the site was declared by
the Minister in terms of section
44 of the Land Act to be a Selected Development Area did not make a
difference to the contesting
parties' rights in that "there were
no extent rights to be extinguished". Fourthly in the
circumstances, there had to
be compliance with section 21 and 22 of
the Land Act 1979.

I have
already referred to the fact that no issue was made of any
irregularity in the procedure of the issue of the lease nor an
attack
nor an allegation of no compliance with the procedure for advertising
of the application which was a basis for disallowing
the counter
claim (cancellation of lease) in Mphofe and Ranthimo's case.

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For the
above reasons I would dismiss the application with costs.

T.
MONAPATHI

JUDGE

17th
March, 1995

For the
Applicant : Mr. Phoofolo for T. Hlaoli & Co.

For the
1st Respondent : Mr. Phoofolo for Mr. Matooane