CIV/A/16/80
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
TSEKO MOHAI      Appellant
v
JOSEPH MAHLOMOLA MASENKANE Respondent
JUDGMENT
Delivered by the Hon, Mr. Justice F.X. Rooney
on the 16th day of November, 1981.
Mr. Monaphathi for the Appellant
Mr. Jobodwana for the Respondent
In October 1978 the present respondent petitioned
the Subordinate Court for the district of Maseru for
an order against the appellant requiring him to
remove the fence which the appellant had erected on
certain land at Qoaling and which the respondent claimed
belonged to him. The petition was opposed on the basis
that the land enclosed by the fence had been properly
allocated to the present appellant.
The matter came before Mr. B.K. Molai Senior
Resident Magistrate who was unable to decide the issues
in dispute on the papers filed. He directed that both
parties should place oral evidence before the court.
Eventually, on the 4th February, 1980 the court below
found in favour of the present respondent and held that the
2/appellant had         

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appellant had encroached upon his site. As the learned
Magistrate was of the opinion that the respondent should
have brought the proceedings before the High Court, he
made no orders as to costs.
What I am dealing with here is a boundary dispute
between the owners of adjacent plots of land. Such
dispute must inevitably arise as long as the practice
continues of making allocations of land without the
benefit of a proper survey. It is only too easy for
those charged with the duty of making land allocations to
err. The only principle which can be followed by the
courts in dealing with cases such as this, is to hold
that once land is allocated, no portion of it may be
reallocated to another party unless the first holder
of the title has been lawfully deprived of his land.
All the land which is the subject of this dispute
originally belonged to the father of the respondent,
one Pitso Letsoara Masenksne. He divided the land
between the respondent and his elder brother Letsoara.
Subsequently, Letsoara sold his portion of the divided
land to one Mofokeng from whom the appellant derives his
title. According to the form C issued to the respondent
on the 13th November, 1972, the four sides of his
plot measure 192'x 92'x 186' x 100'. This encloses an
area of approximately 18,150 sq. ft. Mofokeng's allocation
dated 28th August, 1973 was of a regular plot the
sides of which measured 176' x 90' amouting . to an area
of 15,840 so. ft. The appellant's Form C. which is dated
25th March, 1975, does not correspond to this as the
boundary measures are given at 176' x 95' x 156' x 100'.
A rough calculation suggests that the area granted to
the appellant, which he had obtained from Mofokeng,
had increased by approximately 360 sq. ft. Logically
this must have been done at someone else 's expense.
Unless the area in question encroached upon the land
of a third party, it must have been the appellant who
suffered this slight reduction in the area at his
disposal. However, in the magistrate's court, the
respondent asserted that the measurements appearing on
the Form C issued in the names of Mofokeng were the
correct ones.
3/ The magistrate       

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The magistrate went to the trouble of inspecting the
site and he took measurements of the land in the actual
occupation of the litigents. He found that the
respondent's plot measured 141' 8" and 152' 10"
along the longer sides. These are considerably shorter
than the dimensions described on his Form C. and
had the effect of reducing the actual size of his
plot by approximately 4,000 sq. ft. The learned
magistrate concluded that "The measurements of
respondent's(present appellant) site was erroneously
made and that error has resulted in the decrease of the
applicant's (present respondent) site."
In the course of the hearing of this appeal I was
referred to a great number of matters including the
evidence of various witnesses in support of the
contention that there was no encroachment by the
appellant upon the respondent's land. Whatever merit
there may be in the appellant's criticism of the
evidence and the inferences which may be drawn from the
conduct of the parties, the fact remains that the
respondent is not now in possession of the area of
land which he was granted. The magistrate's con-
clusion that this is because the appellant is mistaken
as to the dimensions of the land acquired by him
appears to me to be incontrovertible, I have no reason
to take a different view than that taken in the court
below.
I have some sympathy with the appellant who
appears to be the victim of an unsatisfactory system but,
when he acquired the land from Mofokeng he was placed on
an inquiry as to what precisely he was obtaining. He
should have been forewarned by the possibility of error
when it became clear to him that the dimension of the land
as delineated in his Form C, differed from those
included in Mofokeng's title. In the absence of a
survey, the only satisfactory way in which the appellant
could ascertain what exactly was being allocated to him,
would have been an inspection of the site in the presence
of the owners of all the adjoining plots.
4/ This appeal  

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This appeal is dismissed with costs.
F.X. ROONEY
JUDGE.
16th November, 1981.
Attorney for the Appellant - W.C.M. Maqutu & Co.
Attorney for the Respondent - G.M. Kolisang.