CIV/APN/198/88

IN THE HIGH COURT OF LESOTHO

In
the Application of :

TUMANE MAKOKO Applicant

V

MAHOMED OSMA 1st Respondent

THE
COMMISSIONER OF LANDS 2nd Respondent

Delivered by the Hon. Mr. Justice M.L. Lehohla 13th
day of February,1990.

At the hearing of this application it was resolved that
a determination should be made regarding the points raised in limine
on behalf
of the first respondent before any arguments could be heard
on the merits.

The question raised in limine was decided for the first
respondent.

The following are the reasons for the Court's finding :-

Fani Makoko is the applicant's father. He filed a
supporting affidavit in support of the applicant's claim to the
relief sought.

Fani entered into an agreement of sale of a site as
reflected in annexure "B" with the first respondent in July
1980. In
his supporting affidavit Fani avers that he did this to
punish his son the applicant.

The order sought by the applicant is to set aside an

/agreement

- 2 —

agreement to which Fani is a party though he has not
been joined.

It was argued for the first respondent that on account
of the interest Fani had in the agreement he ought to have been
joined in these
proceedings. He however had filed his affidavit
showing his attitude to these proceedings.

In C of A (CIV) No. 12 of 1987 Lepogo Mohale &
Another vs Commissioner of Lands & Survey and 3 Others
(unreported) the Minister
of the Interior who was not joined in the
proceedings had his affidavit used both in the court below and the
Court of Appeal. See
also the same parties in CIV/APN/358/86
(unreported).

But in C of A (CIV) No. 12 of 1983 David Masupha vs
Paseka 'Motu (unreported) it was felt that the proceedings in the
court below
were fatal on account of the fact that the respondent's
daughter whose interests were substantial and direct was not joined.
It
is of interest that she had not filed any affidavit to signify her
attitude to the proceedings in the court below nor even in the
Court.
of Appeal notwithstanding a request to do so by the latter court.

In the instant matter the 2nd respondent has not filed
any opposing papers.

It was argued for the first respondent that the Land Act
enjoins the Commissioner of Lands to register leases. The actual
registration
is effected by the Deeds Registrar. It was submitted
therefore that either the Registrar of Deeds or the Attorney General
ought
to have been joined.

In CIV/APN/397/87 Swallows Football Club vs Lesotho

Sport
Council & 2 Others (unreported) at page 14 this court

stated:-

"I come to the conclusion therefore that the
proceedings brought before me are fatally defective in that a party
which has a
direct and substantial interest in

/the

3

the outcome of this matter has not been joined."

In the case just cited above the court had made an
observation as follows:-

"(the) Applicant is not unaware of the stage
reached in the progress towards finals and of the incidental
consequences brought
about by such progress. Being an interested
party the applicant must be aware of the number of Clubs required by
laws and regulations
gover­ning the conduct of the finals to
participate in those finals. By necessary implication, inclusion of
the applicant in
the finals requires exclusion of one of the Clubs
which holds itself as qualified in terms of the rules to participate
in the finals-
How then can such a club be. dislodged from its
position without having been joined in proceedings that are likely to
lead to such
end?"

See Masupha above at page 2.

It appears that in terms of annexure "L" the
area within which the site falls was declared a selected development
area as
far back as 21st August 1981.

The 1979 Land Act in section 44 provides that once the
Minister has declared any area a selected develop­ment area all
the titles
to land within that area shall be extinguished but
substitute rights may be granted as provided in Part V of the Act.
See section
40.

Nothing in the papers or in argument shows that after
the extinction of rights held by the applicant's father to the land
in question
there came into operation any substitute rights for the
father to that land.

The applicant's claim to this land is that it was given
to him as a donation by his father. It would seem that the law that
was applicable
in the circumstances was the 1973 Land Act. But even
if Fani felt he had a lawful title to this land before the operation
of section
44 of the 1979 Land Act it appears that he failed to
effect all the requirements which would have given the applicant
lawful title
to that land.

/Annexure

4

Annexure "A1" purports to be an instrument
through which title was sought to be bestowed by Fani on the
applicant. This
is a letter written by Fani on 14.2.77 saying he
binds himself before the chief that he gives his site situated at
Borokhoaneng to
his son, Tsumane Makoko.

In this letter Fani expresses the hope that the chief
would change the names against which the land is held to those of
Taumane.

But reference to the then applicable 1973 Act shows that
transfer of land in the rural area where the site in question then
fell could
only be effected by the chief acting in consultation with
the Land allocation committee.

Nothing in the papers shows that the land allocating
committee had anything to do with this land.

The applicant cannot rely on the purported donation in
the absence of proof that the land allocating committee had approved
such
donation. It was his duty to ensure that the application
for donation was processed to finality.

It would seem he maintains that he made a mistake by not
pursuing this. Can he rely on his mistake in a manner that
prejudices a
bona fide buyer i.e. the 1st respondent? I think not.
He is estopped from so acting. It does not auger well to suggest
that either
the applicant or his father failed to do things imposed
by the law because either one or both of them are laymen.

There is merit in the submission that as at 21.8.81 Fani
and not his son was the one qualified to be granted the lease. But
even
then when the rights to the place became extinct following the
operation of section 44 of 1979 Land Act it does not follow that
the title to substitute right comes as a matter of course in respect
of the land previously held because that law shows that

/if

5

if the land was held for purposes which arc not
consistent with the development scheme the previous holder will have
no title to that
land.

I uphold the point in limine centred on the view that
following the extinction of the previous holder's right to that land
any interested
party had as good a qualifi­cation to apply for a
lease to hold that land as any other party.

The 1st respondent obtained his lease to the land in a
manner recognised and permitted by the law. I dont see why he should
be disturbed.

Costs are awarded to the first respondent.

JUDGE
13th February, 1990.

For Applicant : Mr. Lepholisa For Respondent :
Mr. Pheko.