C
OF A (CIV) NO.28 OF 2005

IN
THE COURT OF APPEAL OF LESOTHO

In
the matter between

TEFO
MOFELI APPELLANT

and

RALEBOLELO
KAIBE RESPONDENT

CORAM:

RAMODIBEDI
, JA

MELUNSKY,
JA

TEELE,
AJ

SUMMARY

Civil appeal – Section 17 of the Court of Appeal
Act 1978 not followed – Application for leave to appeal made almost
14 months
after the date of the High Court judgment sought to be
appealed against – No application for condonation – Rules 2(1)
(2) (7)
and 8 (2) and (3) of the Court of Appeal Rules 1980 invoked.

JUDGMENT

RAMODIBEDI,
JA

[1] This case has, in typical fashion of cases of its nature in this
country, already shuttled through four different courts including
the
High Court. It all began on 21 December 1999 when the appellant sued
the respondent at Peka Local Court for a residential site,
2 fields
and 2 forests of poplar trees at Ha Mofeli. These properties had
previously belonged to the appellant’s late grandfather,
Motake
Mofeli and his wife Malieketseng who had also passed away. The
appellant claimed the properties on the basis of inheritance.
He
relied on a family decision, annexure “A”, dated 19 August 1995
which apparently nominated him as heir to both Motake Mofeli
and
Malieketseng. The old couple had no male children. They only had
one daughter, namely, the respondent’s mother who was married
to
the Kaibe family at Mathokoane.

[2] The respondent’s case on the other hand was that he was adopted
by the deceased couple who brought him up as their own child.
He
lived with them since 1956. Furthermore, he, too, relies on a
written decision by Mofeli family, dated 21 July 1985. Therein
the
family endorsed Malieketseng’s decision to award the disputed
properties to the respondent. This decision was made in the presence
of the Chief’s representative, Thabo Makoeng. The decision also
bears the chief’s date stamp as an indication of his approval.

[3] Before proceeding further, it is convenient at this stage to
mention that after hearing submissions in this matter on 12 October
2006, we dismissed the appellant’s application for leave to appeal
and struck the appeal off the roll. We intimated that reasons
would
be filed on 20 October 2006. These are the reasons.

[4] The record shows that the parties enjoyed fluctuating fortunes
from one court to another, stretching all the way up to the fourth
tier of the courts’ hierarchy in this country. The Peka Local
Court found for the appellant purely on the basis that he was the
heir to the deceased couple. The Respondent’s appeal to
Tsifalimali Central Court succeeded to the extent that the court
ordered
that the case should start de novo. On further appeal
to the Judicial Commissioner’s Court, however, the decision of the
Tsifalimali Central Court was reversed and
that of the Peka Local
Court reinstated. The respondent appealed to the High Court which
“upheld” the appeal with costs on 12
August 2005.

[5] The
appellant has purported to come before this Court on “appeal”.
But it is evident from the aforementioned background that,
having
gone through several appellate courts, this “appeal” is hit by
the provisions of section 17 of the Court of Appeal Act
1978. The
section in question reads as follows:-

“17. Any person aggrieved by any judgment 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”.

This Court
has dealt with the effect of this section in such cases as Mahabanka
Mohale v ’Makholu Leuta Mahao C of A (CIV) No. 22 of 2004; Mofoka v
Lihanela 1985 – 89 LAC 326. Legal practitioners have
therefore sufficiently been warned.

[6] On
9 October 2006, a few days before the hearing of the appeal and
almost fourteen months since the High Court judgement, the
appellant
filed a notice of motion for leave to appeal against the court a
quo’s judgment in question. However, it is important to have
regard to the provisions of Rule 2 of the Court of Appeal Rules 1980.
Sub-rules
(1) and (2) thereof read as follows:-

“2. (1) Where an application for leave to appeal
is

necessary in a criminal matter in terms of section 8
of

the
Court of Appeal Act No. 10 of 1978, such application shall be made by
way of a notice of motion supported by affidavits.

(2) The notice of motion together with affidavits and
all relevant documents including the judgment of the High Court shall
be delivered
within twenty-one days of the date of judgement or order
of the High Court, a copy of such notice shall be served upon the
Director
of Public Prosecutions.”

Sub-rule (7) of Rule 2 in turn provides:-

“(7)
Where an application for leave to appeal in a civil

matter is necessary in terms of section 17 of the
Court of

Appeal
Act No. 10 of 1978 the provisions of sub-rules (1)

to (6) inclusive of this Rule shall mutatis
mutandis apply,

all parties who might be interested in the appeal if
the

application were to be
granted being considered to be in

the position of the Director of Public Prosecutions.”

[7] It follows from the aforegoing that the application for leave to
appeal is hopelessly out of time. An application that should
have
been made within 21 days has now been made almost 14 months after the
High Court judgment.

[8] Although
this Court has a judicial discretion in terms of Rule 8(2) to condone
any breach of the Rules in a fitting case it will
only do so for good
cause shown on application by notice of motion. In this regard
sub-rule 8 (3) provides:-

“(3)
Such application shall
be by notice of motion

delivered to the respondent and to the Registrar

not less than seven days before the date of hearing.”

(Emphasis added.)

[9]
Now, the reason why the Rules of this Court provide for a notice of
motion, supported by affidavits, is clearly to enable the
Court to
gauge such factors as (1) the degree of delay involved before making
the application, (2) the adequacy of the reasons given
for the delay,
(3) the prospects of success on appeal and (4) the respondent’s
interest in the finality of the matter. See Koaho v Solicitor
– General 1980 – 1984 LAC 35 at 36-37.

[10] In
the absence of an application for condonation supported by affidavits
this Court is not in a position to gauge these factors.
Prima facie,
the delay of almost 14 months before the appellant brought an
application for leave to appeal is inordinate. Prima
facie, once
again, the respondent may have been severely prejudiced thereby. His
interest in the finality of the matter cannot,
in these
circumstances, be ignored. There is, therefore, a need to draw a
line somewhere.

[11] In
these circumstances, and there being no application for condonation
for the late filing of the application for leave to appeal
to this
Court, the application for leave to appeal is dismissed and the
appeal struck off the roll with costs.

__________________

M.M RAMODIBEDI

JUSTICE
OF APPEAL

I
agree ___________________

L.
MELUNSKY

JUSTICE
OF APPEAL

________________

I
agree M.E. TEELE

ACTING
JUDGE

Delivered at Maseru this 20^th day of October 2006.

For Appellant : Miss N. Hoohlo

For
Respondent: Mr T. Hlaoli