C OF A (CIV) No.22 of 2004

IN
THE COURT OF APPEAL OF LESOTHO

In
the matter between

MAHABANKA
MOHALE APPELLANT

and

’MAKHOLU
LEUTA MAHAO RESPONDENT

CORAM
: STEYN, P,

RAMODIBEDI, J.A.,

MELUNSKY,
J.A.

HEARD
: 7 April 2005

DELIVERED: 20
April 2005

SUMMARY

Boundary
dispute – Paramount Chief’s powers – Proclamation No.61 of 1938
– Leave to appeal – Section 17 of the Court of
Appeal Act No.10
of 1978 – Principles in issuing a certificate for leave to appeal
laid down – Need to define point of law.

In
1998, the Appellant’s predecessor in title sued the Respondent’s
predecessor in title for a certain area falling within the
demarcation of the Paramount Chief dated 27 May 1941. The
demarcation in question was in favour of the Respondent’s
predecessor
in title. The claim was dismissed by the Central Court,
the Judicial Commissioner’s Court and the High
Court respectively – Hence the Appeal against
the High Court’s decision. Appeal dismissed with costs on the
ground that the Paramount
Chief’s decision was valid and had never
been changed.

JUDGMENT

RAMODIBEDI,
J.A.

?1? Seldom
has a boundary dispute engaged the attention of both administrative
courts as well as courts of law over such a long period
of time,
spanning more than six decades, as the instant matter has. It all
began 64 years ago on 27 May 1941 to be precise, when
the Paramount
Chief determined a boundary between the Appellant’s predecessor in
title, Tebelo Sebili, and the Respondent’s predecessor
in title,
Tumo Qamako, at a place referred to as Thabana Morena Mountain. As
is often the case in disputes of this nature in this
country, the
parties call the disputed area by different names. The Appellant
calls it Ha Sebili while the Respondent calls it Linotsing
Ha Leuta.
Be that as it may, it is common cause that the Paramount Chief’s
decision in question was in favour of the Respondent’s
predecessor
in title in that it confined the Appellant’s predecessor in title
to the South of the mountain thus effectively excluding
him from the
disputed area in the North of the mountain which in turn comprises
the villages Meqecheng to Lebung. This area in the
North of the
mountain was thus allocated to the Respondent’s predecessor in
title.

?2? In
1987, which was a
period of 46 years after the demarcation of the Paramount Chief in
favour of the Respondent, the Appellant sued the latter
before
Ramokoatsi Central Court for the disputed area. The claim was
dismissed on the ground that the Paramount Chief’s demarcation
of
1941 had been made lawfully and had never been changed. The
Appellant’s further appeals to the Judicial Commissioner’s Court
and the High Court respectively failed for the same reason.

?3? It
may be observed at this stage that in dismissing the Appellant’s
appeal, Moiloa AJ in the Court below was of the view that in
these
circumstances the claim had “prescribed after the lapse of 30 years
since May 1941.” It is not necessary to determine
the validity of
this proposition as the learned Acting Judge did in fact determine
the matter on another ground. Moreover, there
was not, it seems to
me, a full investigation of the issues relating to prescription in
the trial court. It shall suffice merely
to record that the Appellant
has appealed to this Court with leave of the learned Judge a
quo on the following grounds:-

“1. The Honourable Court a quo erred and misdirected
itself in holding that the Appellant's claim had prescribed.

2. The Honourable Court a quo
   erred and misdirected itself in holding that the boundary
   demarcation made on 27^th May, 1941 was done by the proper
   authority.

   
   

2. The Honourable Court a quo
   erred in holding that the 1941 demarcation was made pursuant to
   an existing boundary dispute between Tebelo
   Sebili and Tumo Qamako. A boundary dispute can only
   exist between a chief and another and not between a chief and a
   person who is not a chief.

   
   

4. The Honourable Court a quo erred in upholding the 1941
demarcation that directed people to remove from the area they
inhabited for generations when such demarcation
was invalid.”

?4? Now,
Section 17 of the Court of Appeal Act No.10 of 1978 (“the

Act”) provides for the
right of appeal in civil cases in the following terms:-

“17. Any person aggrieved by any
judgement of the High Court in its civil appellate jurisdiction may
appeal to the Court with the
leave of the Court or upon the
certificate of the Judge who heard the appeal on any ground of appeal
which involves a question of
law but not on a question of fact.”

The
plain meaning of this section is that any person who intends to
appeal against the judgment of the High Court in its civil appellate
jurisdiction, as here, must first seek and obtain the leave of the
High Court or of this Court. Furthermore, leave may be sought
only
on a question of law. See Lesotho Union of Bank Employees, in re
Moliko v Standard Bank Ltd 1985-89 LAC 86 at 87, Letsoela and
Another v Letsoela 1980-84 LAC 275 at 276.

?5? The
learned Judge a quo’s certificate
for leave to appeal to this Court reads:-

“JUDGE’S
CERTIFICATE

WHEREAS the appeal of the
abovenamed appellant from the Judicial Commissioner’s Court was
dismissed by me in the High Court of Lesotho
on the 23^RD
day of August, 2004. I do hereby certify that this is a fit case for
an appeal on the grounds set out in the annexure hereto.”

There
can be no doubt in my mind that, subject to what follows hereunder,
the Appellants’ grounds of appeal as fully set out in
paragraph ?3?
above raise points of fact in addition to questions of law.

?6? As
guidance in future, therefore, it is now necessary to lay down the
following principles:-

1. Practitioners
   who apply for leave to appeal and judges of the court granting leave
   should ensure that the provisions of section
   17 of the Act and the
   Rules of Court are strictly observed.

   
   

2. The
   application for leave to appeal should specify the grounds on which
   leave is sought.

   
   

3. The
   judge granting leave should clearly define the points of law on
   which leave is granted in compliance with the Rules.

   
   

4. When
   leave is granted, the certificate of the judge and the grounds of
   appeal should then be delivered by the applicant.

   
   

?7? In
a well presented argument, Mr Mohau
for the Appellant tried manfully to persuade
this Court that the Appellant’s grounds of appeal raise a point of
law. Apart from
the question of prescription, he relied heavily on
ground No.2 and sought to develop it principally with reference to
Section 3(1)
of Proclamation No.61 of 1938 (“the Proclamation”).
In a nutshell, it was his submission that of all the powers conferred
on
the Paramount Chief under the Proclamation, none related to
delineation of boundaries between chiefs.

?8? Section
3(1) of the Proclamation reads as follows:-

“3.(1) the High Commissioner may,
after consultation with the Paramount Chief, by Notice in the
Gazette, declare any Chief, Sub-Chief
or Headman to be Chief,
Sub-Chief or Headman for any specified area or arears, and may direct
that any such Chief, Sub-Chief or Headman
shall exercise only such
powers as are delegated to him by another specified Chief, Sub-Chief
or Headman with the consent of the
Paramount Chief.”

?9? It
requires to be noted at the outset that there is no specific section
in the Proclamation expressly dealing with demarcation of
boundaries
as such. Mr Mohau
submitted nevertheless that it is implied in
Section 3 that the power to demarcate boundaries vested in the High
Commissioner alone.
In my view this proposition is unsound. I
consider that the correct approach is to read the Proclamation as a
whole in the light
of the history of this country. In this regard,
it will be recalled that the Paramount Chief in question was in fact
the successor
in title of the Founder of the Basotho Nation himself,
Moshoeshoe I. It is undisputed that as the absolute Ruler of the
Basotho
Nation, Moshoeshoe I had power to demarcate boundaries in
this country. The question that arises therefore is whether the
Proclamation
in question deprived him of this power either expressly
or impliedly.

?10?
Since, as I have pointed out in the preceding paragraph, there is no
express provision in the Proclamation dealing with demarcation
of
boundaries, it is necessary to have regard to sections 4 and 8 (1)
(m) (u) and (v) of the Proclamation. In doing so, one naturally
starts from the premise that it is a cardinal principle of
interpretation to construe a statute in conformity with the common
law
rather than against it except where the intention of the
Legislature is clearly to alter the common law itself. See
Dhanabakium v Subramanian & Another 1943
AD 160 at 167.
Indeed the presumption is that the Legislature does not intend to
alter the existing common law more than is necessary.

?11? Section
4 of the Proclamation provides as follows:-

“ 4. It shall be the duty of the
Paramount Chief and every Chief, Sub-Chief and Headman to perform the
obligations by this Proclamation
imposed, and generally to
maintain order and good government among the natives residing or
being in the area over which his authority extends; and for the
fulfilment of this duty he shall have and exercise over such natives,
the powers by this Proclamation conferred in addition to such
powers as may be vested in him by virtue of any law or native custom
for the time being in force.” (Emphasis supplied).

There
can be no doubt in my mind that the underlined words are in effect a
saving clause meant inter alia to preserve the customary law
powers of the Paramount Chief to demarcate boundaries. This was no
doubt in conformity with the British
policy of indirect rule since
1868 when this country became a British Protectorate. The British
policy in this regard was such that
the Basotho were largely left
under the administration of their Chiefs, more especially in land
management.

?12? Section
8 (1) (m) (u) and (v) of the Proclamation in turn reads as follows:-

“8. (1)
Provided that such orders do not conflict with any law for the time
being in force in the Territory, the Paramount Chief
may issue orders
to be obeyed by natives within the area of his jurisdiction ?

.

.

.

(m)
prohibiting, restricting or regulating the migration of
natives from or to any particular area or arears under his
jurisdiction;

.

.

.

(u)
prohibiting, restricting, regulating or requiring to be done
any matter or thing which the Paramount Chief, by virtue of any
native law or custom for the time being in force and not
repugnant to morality or justice, has power to prohibit, restrict,
regulate or require to be done; and

.

.

.

(v) for
any other purpose, whether similar to those hereinbefore
enumerated or not, which may, by Notice in the Gazette, be specially
sanctioned by the High
Commissioner.” (Emphasis added).

Once again, I am of the
view that the underlined words in Subsections 8 (1) (m) and (u) above
were intended to save the customary
law power of the Paramount Chief
to regulate boundaries in this country.

At any rate, and in so
far as Section 8 (1) (v) is concerned, it is common cause between the
parties that the Paramount Chief’s
demarcation in question was in
fact confirmed by the High Commissioner by Gazette No. 4339 dated 30
December 1964. This gazette is
apparently not available. Its purport
was however referred to in evidence by the Appellant’s own
representative Tebelo Mohale
who testified as follows under
cross-examination:-

“20. I do not deny that the
boundaries made by Makafane (the Paramount Chief’s representative)
were confirmed by Gazette No. 4339
dated 30.12.1964.”

Moreover,
as appears from para ?23? infra,
the evidence disclosed that as a matter of customary law, it was
the Paramount Chief who had the power to allocate land and demarcate
boundaries. It is not open to the Appellant to challenge this
evidence on appeal to this Court. Whilst the meaning and import of
customary law is a matter of law, the evidence adduced to establish
what the law is, is a matter of fact and cannot be open to challenge
before us in terms of section 17 of the Act.

?13? It
is a striking feature of the Appellant’s case that the challenge to
the Paramount Chief’s power to demarcate boundaries was
made for
the first time on appeal before the High Court. Save for an abortive
attempt in 1962 when the Appellant was held to have
sued the wrong
party, at no other time during a period of 63 years, as I observe,
was such a challenge raised. More importantly,
it was not raised
during the pleadings at the trial.

?14? Now,
almost a century ago in Cole v Government of
the Union of S.A. 1910
AD 263 at 273 Innes J (as he then was)
expressed himself as follows:-

“But where a new law point involves
the decision of questions of fact, the evidence with regard to which
has not been exhausted,
or where it is possible that if the point had
been taken earlier it might have been met by the production of
further evidence, then
a Court of Appeal will not allow the point to
prevail. Because it would be manifestly unfair to the other litigant
to do so.”

This
approach was approved by the Full Bench in Union Government v
Harkins 1944 AD 556 at 560 as well as this Court in Vincent
Moeketse Malebo v Attorney General C of A (CIV) No.5 of 2003
(unreported).

On this approach
therefore, I am of the view, based on the facts, that it is possible
that if the “point of law” now advanced
by the Appellant had been
taken earlier at the trial it might have been met by the production
of further evidence. It is thus necessary
to refer briefly to the
facts.

?15? The
full facts of the case have been comprehensively set out in the
judgement of the court a quo and it is thus strictly unnecessary
to
recite them except in so far as is necessary for the determination of
this case. These have largely to do with the chronology
of major
relevant events leading to this appeal. They are indeed common cause,
as even the Appellant’s own witnesses could not
dispute them at the
trial.

?16? On
27 May 1941, as previously mentioned, the Paramount Chief allocated
the disputed area North of the mountain through the messengers
Makafane Lehloenya Jobo Nthoana, Lejone Tlali, Chief Tsibane
Ramarothole, Letsatsi Maoela and the Deputy Administrator of Mafeteng
referred to by the witnesses as Mari but whose true name was
apparently Murray.

?17? On
24 March 1962, the Appellant’s predecessor in title, Tebelo Sebili,
“sued” the Respondent for the same boundary before the
committee
of the College of Chiefs in CC13/1961. The committee comprised the
following members:- Mopeli Jonathan Molapo (Chairman),
Chief Seeiso
Mokotoko, Chief Luis Sechaba Moletsane and Suping Lehloenya as
Secretary. Not only did the Appellant’s predecessor
in title lose
the dispute but he was also ordered to “respect” the decision of
the Paramount Chief dated 27 May 1941 which still
stood unaltered.

?18? On
30 December 1964, the disputed boundary was duly published by the
High Commissioner in Government Gazette No.3449, Legal Notice
137 of
the same year.

?19? On
14 December 1972, a delegation from the Ministry of Interior was
dispatched to execute the Paramount Chief’s decision of 27 May
1941. The delegation consisted of Majakathata Phamotse, Chief Tjama
Makimane on behalf of the Principal Chief of Likhoele, Bereng
Matseletsele, Matheantsi Maputsoe and Mphanya Lehloenya who
represented the Chief of Thabana Morena. The Appellant’s
predecessor
in title was again ordered to respect the Paramount
Chief’s decision in question.

?20? Similarly,
On 16 December 1983, the Principal Chief of Likhoele made a decision
that the Appellant’s predecessor in tittle, namely
Chieftainess
Mankhahle at that stage, should “respect” the order of the
Paramount Chief dated 27 May 1941.

?21? It
is evident from the aforegoing chronology of events that the
Appellant’s predecessors in title have never challenged the
Paramount
Chief’s decision of 27 May 1941 allocating the disputed
area to the Respondent. As previously indicated for that matter,
neither
the Appellant nor his predecessors in title have ever
challenged the authority of the Paramount Chief to make the decision
in question.

?22? It
is further evident from his second ground of appeal
that the Appellant is seeking to rely, on
appeal, on an unpleaded claim that the Paramount Chief had no
authority in the matter.
Put differently, the Appellant is now
seeking to make a new case on appeal which he did not advance before
the trial court.

?23? For
the avoidance of doubt, the record reveals that at the trial before
Ramokoatsi Central Court, the Appellant’s predecessor in
title who
was plaintiff thereat pleaded her claim as she was obliged to by
Basotho Courts (Practice and Procedure) Legal Notice 21
of 1961 Rules
in the following terms:-

“ I
dispute my area, which was wrongly taken from me. Because there was
no dispute for these (sic) area. It was taken by Makafane
Lehloenya
and allocated it to Tumo Qamako the defendant’s father.”
She then “place?d?”
Tebelo Mohale to conduct her case. Not once did the latter seek to
challenge the authority of the Paramount Chief to make the
decision
in question. On the contrary, he specifically directed his challenge
at Makafane Lehloenya in cross-examination. Moreover,
he is recorded
on page 6 of the record as having given the following material
answers in that regard:-

“5. The boundaries
were made by Chief Makafane Lehloenya.

6. Makafane was the messenger of
   the Paramount Chief.

   
   

7. Makafane was not directed by the
   Paramount Chief.

   
   

8. A letter from the Paramount
   Chief should be there if he was ordered/directed by him.”

   
   

The
following answers by Teboho Mohale under cross-examination prove
clearly, in my view, that the Appellant simply regarded the Paramount
Chief’s decision as Makafane’s decision as the learned Acting
Judge correctly observed:-

“11. The decision made by Chief Makafane was not respected.
Because even now it is still in dispute.

12. The decision says between Chief
    Teboho Sebili and Tumo Qamako, Chief Tebelo should live on the South
    of this area and Tumo Qamako
    live on the North.

    
    

13. There were no Land markings or a
    stone.

    
    

14. I believe Thabana-morena is a
    mountain, which was mentioned that the other live on the North of
    it. And the other one on the East
    of it.

    
    

15. Makafane did know and made the
    boundaries.

    
    

16. The Paramount Chief has the
    power to demarcate boundaries through Interior.

    
    

17. The Paramount Chief has not set
    the boundaries.

    
    

18. I do not deny that the paramount
    chief set the boundaries in 1952.

    
    

19. I do not deny that he did not
    make the decision.

    
    

20. I do not deny because I was not
    there.

    
    

I do not deny that the boundaries made by Makafane were confirmed by
Gazette No 4339 dated 30.12.1964.

22. 22. A gazette is the Law.

    
    

23. Even though this boundary was gazetted it is not legal. This
boundary

22. is not Legal even though it
    was gazetted.

    
    

24. I
do not deny that the messenger (sic) of this court, Chief of Likhoele
and

Chief of Thabana-morena accomplished that judgement.

25. I do not deny that Chief of
    Likhoele and district secretary
    

    
    

accomplished this judgment.

25. Makafane’s order said Tebelo
    his power is on the North, while the defendant in on the South.”

    
    

Tebelo Mohale’s answers from the court’s questions
continued in the same vein:-

“1. Chief
Makafane’s decision took part of Chief Tebelo Sebili’s area.

2. This is the first time that the plaintiff dispute this area.

3. I
believe that Makafane personally make this gift (the boundary

decision
in question) and he was not wearing the Paramount Chiefs (sic) hat.”

?24? It
is important to bear in mind then that in so far as the authority of
the Paramount Chief is concerned, Tebello Mohale is recorded
as
having said

the following under
cross-examination:-

“16. The Paramount Chief has the power to demarcate boundaries
through interior.”

Indeed
this view was supported by Appellant’s witness Samuel Mokone who
testified as follows under cross examination:-

“14. The
Paramount Chief is the one who has the right to allocated land”

It
was no doubt precisely for that reason that the Paramount Chief’s
messengers included one Murray who, as will be recalled, was
the
Deputy Administrator of Mafeteng. This in my view, is support for the
proposition that the High Commissioner was involved in
the
demarcation in question.

?25? That
the Appellant is precluded from now challenging the authority of the
Paramount Chief is clear from such cases as Frasers
Lesotho Limited v Hata-Butle (Pty) Ltd 1999 – 2000 LLR& LB 65
(LAC) at 68, Malerotholi
Josephine Sekhonyana & Another v Standard Bank of Lesotho Ltd
1999 – 2000 LLR &
LB 416 (LAC) at 420 – 421, The
National Executive Committee of the Lesotho National Olympic
Committee v Paul Motlatsi
Morolong C of A (CIV) No. 26 of 2001
(unreported).

?26? The
main principle stressed by these authorities is that it is in
particular wrong to direct the attention of the other party to
one
issue and then attempt to canvass another. In my view, it is
particularly wrong to do so for the first time on appeal as this
case
illustrates.

?27? It
remains then to say that,
as a matter of policy, it would be wrong for this Court to allow the
Appellant to effectively open a can of worms, so to speak,
after 64
years since the Paramount Chief’s decision in question. Although
each case must admittedly depend on its own facts, this
would in my
view most probably lead to confusion and uncertainties over similar
boundaries throughout the country with disastrous
results. It would
undermine law and order and to prevent all of these is the
fundamental function of this Court. The Appellant’s
inordinate
delay in challenging the Paramount Chief’s decision in these
circumstances was rightly held to adversely affect any
rights he
might have had.

The point of law on
which the Appellant was granted leave to appeal cannot therefore be
upheld and the appeal should be dismissed.

?28? In
the result, the appeal is accordingly dismissed with costs.

_________________

M.M.
RAMODIBEDI

JUSTICE OF APPEAL

__________

I concur : J.H. STEYN

PRESIDENT

______________

I concur : L. MELUNSKY

JUSTICE
OF APPEAL

Delivered at Maseru, this 20^th day of April
2005.

FOR APPELLANT : MR K.K.
MOHAU

FOR RESPONDENT : MISS
L.V. MOCHABA (ASSISTED BY MR S.T. MOSHOESHOE)