CIV/A/9/81

IN THE HIGH COURT OF LESOTHO In the Appeal
of

HABOBANOE THAISI Appellant

v
ISAAC LATANE Respondent

JUDGMEMT

Delivered by the Hon Acting Judge B.K Molai on the
12th day of June, 1981

This is an appeal against the judgment of the Judicial
Commissioner's Court dated 22nd November, 1979 allowing Respondent's
Appeal.

Respondent had sued Appellant before Tale Local Court.
The claim was that Appellant had ploughed a field allocated to
Repondent without
the last consent.

The trial court heard evidence that around 1940, the
field was allocated either to one Myamane ( Appellant's late father )
or Appellant
on the application of Nyamane. The field was
subsequently returned to the chieftainship by Nyamane - a fact which
was disputed by
the Appellant. On 24th June, 1976 the field was
re-allocated to Respondent by Chief Moholobela and his Development
Committee in
terms of the provisions of the Land Act No. 20 of 1973.
Appellant then challenged the allocation before the Principal Chief
of Leribe
on the grounds that the field belonged to him, his previous
allocation had not been revoked and it could not therefore lawfully
be
re-allocated to Respondent. The Principal Chief of Leribe then
wrote numerous letters, which were exhibited before the trial court,
instructing Chief Moholobela, his Development Committee and the two
xxxtigants to appear before him to enable him (Principal Chief)
to
make a decision on the matter After several letters, the
instructions of the Principal Chief were still not complied with.
He
then wrote to Chief Moholobela on 21st September, 1978 and
communicated what can be a temporary ruling to the

2/ effect

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effect that the field in question should be used by the
Appellant and no one else, pending his decision on the complaint that
had
been lodged with him by the Appellant over the re-allocation of
the field to Respondent.

The Respondent apparently then side-stepped the
principal Chief and instituted a civil suit against the Appellant
before Tale Local
Court and his claim was as set out above. The
trial court found for Respondent for reasons which in my view are not
so important
for a decision in this matter Appellant appealed to
the Central Court of Tsitalimali which allowed his appeal. Respondent
in turn
appealed to the Judicial Commissioner's Court which allowed
the appeal on the ground that Respondent

was not only a holder of a certificate of allocation,

but also the person who seem a to have used the land
lawfully

for two years before the action Against this decision,
Appellant had appealed to this Court.

I think it is important to bear in mind that the law
governing allocation and derogation of land at the time the field in
question
is said to have been allocated to Respondent was the now
repealed Land Act No. 20 of 1973. Section 11 of that Act provided
that

"Any person aggrieved by a decision
of an
allocation authority

shall note an appeal from that decision

Appellant was clearly aggrieved by the decision of Chief
Moholobela and his Development Committee allocating what he
considered to
be his field to Respondent. This is evidenced by the
fact that Appellant decided to appeal to the Principal Chief against
the decision
of Chief Moholobela and his Committee as the allocating
authority. In terms of the Act, the authority to which he could
appeal against
the decision was the chief immediately superior to
Chief Moholobela and it was not disputed that that chief was the
Principal Chief
of Leribe.

Under the provisions of Section 7 (2) of the Act, the
Principal Chief had a duty to consider the appeal and make a ruling
as to whether
the decision taken by Chief Moholobela and his
Committee should be upheld, reversed or varied.

3/ In terms of

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In terms of the proviso to Section 8 (1) of the Act,

it was only after the Principal Chief had made his
decision

that further appeal could be taken to the courts of low

and it would appear that the competent court for
purposes

of that proviso was the central court and not the local

court

1 am of the opinion that in accordance with the
procedure laid down by the Land Act, the validity of the allocation
of the land in
question to Respondent had to be decided by the
Principal Chief in view of the appeal that had been lodged before him
by the Appellant.

Respondent however side-stepped the Principal Chief and
took the matter to the courts of low before the remedies provided by
the Land
Act had been exhausted.

The question whether Respondent was lawfully allocated
the field remains undecided pending the decision of the Principal
Chief. In
the premises, I come to the conclusion that the matter was
brought before the courts of law prematurely and I have no
alternative
but to grant absolution from the instance.

The Principal Chief's letter of 21st September, 1978
communicating his temporary ruling that the field should be used by
Appellant
pending the decision of the appeal before the Principal
Chief was clearly addressed to Chief Moholobela and not copied to
Respondent
There is no certainty that Respondent was aware of that
ruling and he ought therefore not to have brought his action before
the
trial court pending the decision of the Principal Chief. I
therefore award no costs.

ACTING JUDGE
B R. MOLAI

For appellant Mr. Kolisang
For Respondent
In person