CIV/APN/314/87 IN THE HIGH COURT OF LESOTHO

In the Application of:

THABANG NYEOE 1st Applicant

MOSIUOA
'MOTA 2nd Applicant

and

LESOTHO BANK 1st Respondent

ALBERT S. MOHALE 2nd Respondent

WILLIAM LEMENA (Deputy

Sheriff) 3rd Respondent

J U D G M E N T

Delivered by the Hon. Mr. Justice B.K. Molai

on the 15th day of August, 1990.

The applicants herein have obtained, against the
Respondents, a rule nisi framed in the following terms:

"1 (a) Directing that the proposed sale by public
auction of a certain site No. 41A Europa, situate in the Maseru
Reserve in
the Maseru dis­trict property of 2nd Respondent on 3rd
October, 1967 by 3rd Respon­dent in execution of a default
judgment
of the High Court dated 3rd June, 1987 in favour of 1st
Respondent and against 2nd Respondent is hereby stayed.

2. That the requirements of the rules of court
regarding applications are hereby dispensed with.

2/ 3. That

2

3. 
   That Order 1(a) above operates with
   immediate effect
   as interim inter­
   dict and;

   
   

4. 
   That the three Respondents are called
   upon to show
   cause if any on the 16th
   day of October, 1987 why Order
   1(a)
   should not be made final and the rule
   herein issued
   confirmed.

   
   

5. 
   That the costs of this application be
   paid by any
   one or combination of the
   Respondents in the event only of
   their
   opposing the application.

   
   

6. 
   That further and/or alternative relief may
   be
   granted to the Applicants in this
   matter."

   
   

Only the first Respondent has intimated intention to
oppose confirmation of the rule. Although duly served

with the rule, second and third Respondents have not
filed notice of intention to oppose its confirmation. It may,
therefore, be safely
assumed that they are prepared to abide by
whatever decision the court will arrive at.

Affidavits are duly filed by the parties. In as far as
it is relevant it appears from the affidavits that prior to 8th
February, 1972
the second Respondent was the owner of a certain site
Number 41A Old Europa, Maseru Urban Area in the district of Maseru.
On 8th
February, 1972 he registered the property in terms of the Deed
Registry Act, 1967 and obtained a Title Deed therefor.

3/ Thereafter

3

Thereafter, the second and the first Respondents
apparently entered into a certain agreement. As an assurance of
performance of his
part of the agreement the second Respondent
mortgaged site 41A in favour of the first Respondent under the Deed
of Hypothecation
No. 15039 dated 6th June, 1979. However, the second
Respondent subsequently failed to perform his part of the agreement
and the first
Respondent sued him under CIV/T/172/87. The case was
decided in favour of first Respondent on 3rd June, 1987. The decision
declared,
inter alia, that every right and interest in the
land,

buildings and other improvements erected on site 41A
Europa were especially executable at the instance of the first
Respondent in
terms of the Deed of Hypothecation NO. 15039.

Pursuant to the aforementioned decision in CIV/T/172/87
the first Respondent caused a writ of execution to be issued against
the second
Respondent. On the basis of the writ of execution the
third Respondent proceeded to attach site 41A and publicise a notice
of its
sale in execution, which notice appeared in the issue of 20th
August, 1987 of "Lesotho Today" newspaper.

The applicants then instituted the present proceedings
in which they moved the court for relief as mentioned in the rule
nisi. In their founding and replying affidavits which were
deposed to by the first applicant, the applicants averred, inter
alia, that

4/ in 1984

4

in 1984 they and the second Respondent concluded Deeds
of sale whereby the latter divided site 41A Europa into two portions
which
he sold to them (Applicants). The applicants duly paid the
price money to the second Respondent who processed transfer of the
two
portions of site 41A to them, They contended, therefore, that the
site belonged to them and no longer to the second Respondent.
Accordingly
the third Respondent could not lawfully attach and sell
site 41A by public aution to satisfy the judgment in CIV/T/ 172/87
which
the first Respondent had admittedly obtained against the second
Respondent.

It is to be borne in mind that following the
registration of site 41A in terms of the Deeds Registry Act,
1967 on 8th February, 1972 the second Respondent mortgaged the
site in favour of the first Respondent under the Deed of
Hypothecation
No. 15039 dated 6th December, 1979. That being so, it
stands to reason that when in 1984 the second Respondent divided the
site into
the two portions which he sold to the applicants the site
was already mortgaged in favour of the first Respondent. The second
Respondent
could not, in my opinion, have lawfully sold, to the
applicants, the site which he had, in terms of the Deed of
Hypothecation 15039,
already mortgaged to the first Respondent. The
second Respon­dent's purported sale of site 41A to the applicants
was for that
reason, null and void.

5/ The applicants

- 5 -

The applicants further contended, however, that at the
time of mortgaging it, site 41A was undeveloped and had no immovable
property
of any sort, save an old dilapidated chicken coop and some
barbed wire fencing around it. The purported mortgage was, therefore,
in respect of land. As land in Lesotho belonged to the Basotho nation
and not individuals, the second Respon­dent could not have
lawfully mortgaged site 41A which was in law, not his property. The
applicants contended that, for the same reason, the judgment
in
CIV/T/172/87 which declared inter alia, that site 41A
Europa was executable at the instance of the first Respondent in
terms of the Deed of Hypothecation 15039 was null and void and
of no legal force.

I am unable to agree with these contentions. Assuming
for the safe of argument, that the applicants are correct in their
averment
that the second Respondent could not have mortgaged site 41A
because it was land belonging to Basotho nation and not him. They
have,
in their own words, averred that they had lawfully bought the
same site from the second Respondent. It seems to me that, by the
same
token, the second Respondent could not have lawfully sold to
them the site which belonged to the Basotho nation and not to him.

As it has already been pointed out earlier, the first
respondent obtained, against the second Respondent a judgment under
CIV/T/172/87.
The judgment declared, inter alia, that
every right and interest in the land, buildings and other
improvements erected on site 41A Europe

6/ were

6

were especially executable at the instance of the first
Respondent in terms of the Deed of Hypothecation No. 15039. That
judgment
has not been set aside by the Court of Appeal and, in my
opinion, still stands good. The applicants cannot, therefore, be
heard to
say the judgment in CIV/T/172/87 is null and void and
of no legal force.

In the result, I come to the conclusion that this
application ought not to succeed. The rule nisi is
accordingly discharged with costs.

B.K. MOLAI
JUDGE

15th August, 1990.

For Applicants : Mr. Addy
For Respondents : Mr.
Moiloa.