CIV/APN/208/87

IN THE HIGH COURT OF LESOTHO

In the Application of :

SELLOANE PUTSOANE Applicant

and

MOTLATSI LEKATSU Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
17th day of August, 1990.

The applicant herein seeks, against the Res­
pondent, an order of this court framed in the following

terms:

" 1. Ejecting Respondent from a certain unnumbered
site, or portion thereof at Thoteng Ha Scout, Roma, in the district
of Maseru
shown as plot Number 012 in the Lesotho Cadastral plan No.
18333.

2. Granting costs of this application
to applicant.

3. Granting applicant such further and
or alternative
relief."

The application is opposed and affidavits have been
duly filed by the parties. It is, perhaps, convenient to mention at
this juncture
that the original applicant in this matter was James
Morapeli Putsoane. When the application came for arguments the court
was informed
that the applicant, James Morapeli Putsoane,had since
passed away. An application was, therefore, made that his widow

2/ Selloane Putsoane ......

- 2 -

Selloane Putsoane, be substituted as the present
applicant. The application for substitution was not opposed and
accordingly granted
by agreement of the parties.

It is common cause from the affidavits that prior to
1974 a certain Leronti Matobo was entitled to the use and occupation
of a piece
of land at Thoteng Ha Scout in the area of Roma. In 1974 a
portion of the land was lawfully allocated to the applicant for use
as
a residential site. Annexure "A", certificate of land
allocation was on 9th March, 1974 Issued to him as proof thereof.
That portion is shown as No. 012 on annexure "B", the
Cadestral Plan No. 18333.

It is further common cause that in July 1985 the
Respondent started amassing building materials on a plot adjacent to
the residential
site admittedly lawfully allocated to the applicant
in 1974. According to the applicant the plot on which the Respondent
was amassing
building materials was another portion of the land
belonging to Leronti. He had negotiated for that plot with Leronti
and it was
sub­sequently lawfully allocated to him as another
residential site in 1979. He attached annexures "C" and "D"
as proof thereof. When he noticed the Respondent amassing building
materials on the plot the applicant contacted and told him to
remove
the building materials. The Respondent, however, refused to do so.

Apparently the applicant instituted, before the Maja
Local Court, proceedings in which he claimed the eviction of the
Respondent.
It is not clear, from the papers before me, what the
outcome of those proceedings was. In any event the applicant has now
approached
the High Court for an order as aforesaid.

3/

-3-

In his affidavit the Respondent conceded that the plot
on which he had been amassing building materials originally belonged
to Leronti.
He denied, however, that the plot was ever lawfully
allocated to the applicant. According to the Respondent he had
acquired the plot
from the previous owner, Leronti. He had in fact
paid money which Leronti received for the plot. The Respondent
denied, therefore,
that the plot was lawfully allocated to the
applicant who accordingly had no right to evict him therefrom. In the
contention of the
Respondent Annexures "C" and "D"
were nothing but fabrications calculated to defraud him of his right
to use
and occupy the plot on which he had in fact already built a
house and was living with his family.

As I see it, the decision in this case revolves on
whether the plot, the subject matter of this dispute, belongs to the
applicant
or the Respondent. Although each of the litigants claims
this plot, it is significant that the Respondent has produced no
documentary
proof to substantiate his claim. All that he says is that
he acquired the plot from Leronti, the previous owner,who is
apparently
not a chief and cannot, therefore, lawfully allocate land
in this country.

On the other hand,the applicant has produced two
documents purporting to substantiate his claim that the plot belongs
to him. The
documents are annexures "C"

4/ and "D"

4

and "D", respectively, a certificate of land
allocation and a written agreement between himself and Leronti. Both
documents
are dated 15th August, 1985. Annexure "D" reads,
in part:

" An agreement between

1. Mr. Leronti Matobo, the site allotter

and

2. Mr. James M. Putsoane, the site
allottee.

Basing myself on the decision of the commissioner of
Lands in Maseru, I, Leronti Matobo and Mr. J.M. Putsoane, on the
basis of paragraph
(2) of that letter refer our matter to the chief
of Roma for his intervention.

The chief advised that as he knew that I have another
site at that area I should give the disputed site to Mr. James M.
Putsoane and
Mr. Matlatsi Lekatsu another site as a replacement to
the site in dispute. The chief blessed the idea because it was fair
and peaceful.

Leronti Matobo.

I agree and approve the decision above because it is
in order.

Sgd: Maama M. Maama
Chief or Roma."

The alleged Commissioner of Lands' letter on the basis
of which the applicant seems to rely for the con­tention that he
had been
allocated the plot by Leronti is not attached to the
affidavits. This court is, therefore, not aware of the contents of
para (2)
thereof. In any event, I have already intimated my view that
Leronti is not a land allocating authority in this

5/ country

5

country. He cannot, therefore, have lawfully allocated
the plot, the subject matter of this dispute, to the applicant.

Although the applicant averred that he was allocated
the plot in 1979 and produced annexure "C" as proof
thereof, it is
significant that annexure "C" does not bear
him out. It was clearly issued to him by the Chief of Roma on 15th
August,
1965 and not 1979. It must also be observed that in 1980 the
area of Roma was declared an urban area by Legal Notice No.
14 of 1980 dated 22nd August, 1980. That being so, it must be
accepted that if it were true that on 15th August, 1985 the plot the
subject
matter of this dispute, was lawfully allocated to the
applicant, the law applicable was Part III of the Land Act 1979
of which S.19(1) specifically provides:

" 19(1) this Part applies to the grant

of title to land in an urban area."

In terms of the provisions of S. 24 of the Land Act
1979 the power to grant title to land within an urban area is
exercised by an
Urban Land Committee consisting of

" (a) the Principal Chief having juris­diction,
as chairman;

2. 
   the commissioner or his authorised
   representative;

   
   

3. 
   the District Administrator, or where
   a Town Clerk
   has been appointed, the
   Town Clerk for the relevant urban
   area
   who shall be the secretary of the com­
   mittee;

   
   

4. 
   three other persons appointed by the
   Minister."

   
   

6

S.27(1) of the Land Act 1979 provides:

"whenever a decision to grant title to land under
this Part has been taken, the secretary of the Urban Land Committee
shall forward to the Com­missioner a certificate to that
effect in Form "C3" in the Third Schedule and shall at the
same
time issue a copy of the certificate to the applicant" (My
underlining)

In the instant case, annexure "C", the copy
of the certificate, issued to the applicant is in Form "C2"
and not
Form "C 3" in the Third Schedule Form "C2"
is, however, not a proper form to use where land has been allocated
within an urban area. I have underscored the word "shall"
in the above cited S.27(1) of the Land Act 1979 to indicate my
view that if it were true that in 1965 the applicant was allocated
the plot, the subject matter of this dispute, within
the urban area
of Roma, it was mandatory to use Form "C3", Moreover,
annexure "C" is signed by the local chief
Maama, M. Maama
purporting to be the Chairman of the land Committee. As it has
already been stated earlier, the Principal Chief and
not the local
chief is, in terms of the provisions of S.27 of the Land Act 1979,
the chairman of the urban land committee.

By and large, I am convinced that the plot, the subject
matter of this dispute, was irregularly allo­ cated to the
applicant and
for that reason he cannot be

7/ heard

7 -

heard to say the plot lawfully belongs to him. The
applicant cannot, therefore, be entitled to evict the Respondent from
the plot
over which he has no legal title

In the circumstances, I have no alternative but to
dismiss the application with costs.

B.K. MOLAI

JUDGE

17th August, 1990.

For Applicant : Mr. Monaphathi
For Respondent :
Mr. Matete.