C. of A.
(CIV) No.10 Of 1986

In THE
LESOTHO COURT OF APPEAL

In the
Appeal of:

SEETSA
TSOTAKO Appellant

v

MATSAISA
MATABOLA Respondent

HELD AT
MASERU:

Coram:

SCHUTZ,
P.

MAHOMED,
J.A.

AARON,
J.A.

JUDGMENT

AARON,
J.A.

This is a
dispute over the right to occupy certain land, which is described in
the pleadings as "certain unnumbered site situate
at Ha Thamae,
in the Maseru district". It goes back to 1974, and has already
been heard by four courts. The history of the
litigation is as
follows. Respondent (who was plaintiff in the trial Court) claims
that a site was allocated to her on 8 April
1974, by chief Moshe
Matsoso, acting with his allocation committee, and that a Form C, as
prescribed by the Land Act 1974 (which
was the relevant Act then in
force) had been duly issued to her by chief Moshe Matsosa. The site
was portion of a field which belonged
to one Pulumo Sehlabo, and at
the time of allocation there were stalks of a maize crop on the
field. After the site had been allocated
to her, she demarcated it by
erecting

2

a number
of poles around the site, Out some days later, she found that the
poles had been removed, and that foundations were being
dug on the
site. It is common cause that the appellant (to whom I shall refer as
defendant) was the party responsible for this
conduct.

She
immediately reported the matter to chief Moshe Matsoso, who on two
occasions sent his messengers to summons defendant to appear
before
him, but defendant failed to appear. Defendant explains this failure
by saying that he was not aware of the summons.

Plaintiff
then instituted proceedings in the Maseru Local Court, citing Pulumo
Sehlabo as first defendant, and the present appellant
as second
defendant. The record of these proceedings was Exhibit "D"
in the trial court. Plaintiff testified in those
proceedings that the
allocation committee had visited the site after the poles had been
removed to investigate her complaint. This
statement was not
challenged by the defendants. Plaintiff produced her Form C, and
called one of the members of the allocation
committee as a witness,
who supported her version as to the allocation of the site to her,

The
defendants in that case did not deny that a portion of Pulumo
Sehlabo's field had been allocated to plaintiff as a site, but

claimed that it was lower down the field, and that she was mistaken
when she claimed it was the site on which second defendant
had built.
The record

3

also
contains a note to the effect that "the Defendant No.1 showed
out a field he had allocated Plaintiff which was found to
have been
fenced by one Khoboko".

The Local
Court found in favour of the plaintiff, and ordered second defendant
to remove the house which he had in the meantime
completed building
from the site.

This led
to an appeal to the Watsieng Central Court by second defendant, which
was heard in August 1975. The record of these proceedings
was Exhibit
"F" in the Court below. It is a very short record, from
which it appears that the appeal was allowed, the
judgment of the
Local Court was set aside, and the case "returned .... to be
dealt with

by the
Chief of those litigants so as to allocate this site lawfully".
The reasoning of the President of the Central Court
does not appear
very clearly from the English translation of the proceedings, but he
apparently considered it necessary that the
chief who had made the
allocation should have been a witness in the Local Court, and that
the Local Court could not properly decide
whether he had validly made
an allocation in the absence of such evidence.

This
judgment was given on 22 August 1975. It seems that the dispute was
then handled administratively, but the exact sequence of
the events
that followed is not clear. Nothing appears to have been done until
1978, probably because of the investigation by the
Ministry of
Interior into the

4

manner in
which chief Moshe Matsoso had been administering matters in his area.
By 1978, the chief had been succeeded by his nepnew
chief Moshoeshoe
Seoli. He then gave his attention to the dispute and resolved the
matter in favour of Defendant. It appears that
the matter was also
referred to the chief of Qoaling, but there are different versions as
to why this was, or what the latter did.
There is a suggestion that
it might have been by way of appeal from the decision of chief
Moshoeshoe Seoli.

Plaintiff,
being dissatisfied with the result, then went back to Court, and on
24 October, 1979, instituted the present proceedings
in the
Subordinate Court, in which she claimed an order ejecting the
defendant from "certain unnumbered site" situate
at Ha
Thamae. In further particulars to her summons, she based her claim to
occupation on an allocation evidenced by the Form C
dated 8 April,
1974. The defendant* in his plea, asserted that the site had been
allocated to him on an earlier date, namely 25
March, 1973, and
accordingly claimed that he had a better right to occupation than
plaintiff. He also pleaded that the matter was
res judicata, as the
decision of the Matsieng Central Court had not been challenged by
Plaintiff.

In
support of her case, plaintiff called two members of the committee in
charge of the allocation of sites at Ha Thamae. Both testified
that
the site in dispute had been allocated to plaintiff by the committee,
and that chief

5

Moshe
Matsoso had subsequently signed the Form C dated 3 April, 1974, They
claimed that defendant had been allocated a site elsewhere.
One of
them stated that plaintiff had engaged the services of one of the
other members of the allocation committee to erect the
poles around
her site.

Defendant,
for his part, handed in two Forms C. One purports to reflect that the
site had been allocated to him by Chief Moshe Matsoso
on 25 March,
1973, together with his allocation committee. He claimed that one of
the members of the allocations committee was
Daniel Thaabe. Thaabe
was in face PW 3, and had denied having been present when defendant
was allocated this site. This form C
purports to be signed by Chief
Moshe Matsoso, and bears the chief's stamp with the date 23.2.1973
therein. It is also signed. elsewhere
on the form, by Chief
Moshoeshoe Seoli, with his stamp bearing the date 8-06-1978. The
second Form C, which was attached to a Land
Registration Certificate
issued to defendant on 7 July, 1978, had only the stamp of chief
Moshoeshoe Seoli, with his stamp bearing
the date 8-06-1978.

As
witnesses, defendant called chief Moshoeshoe Seoli and the wife of
Pulumo Sehlabo. The latter claimed that she was present when

plaintiff was allocated her site. because the allocation committee
could be unfaithful, and she did not want her children's portion

interfered with. She says this was in 1973. not in 1974, and that the
site was in a position different from that claimed by plaintiff.

6

Chief
Moshoeshoe Seoli testified that he knew nothing of the original
allocations, but that by the time when the dispute was sent
back to
the chiefs by the Matsieng Central Court, he had replaced Chief Moshe
Matsoso, and he was now seized with the administrative
enquiry. He
investigated the matter by meeting with Chief Moshe Matsoso. the wife
of Pulumo Sehlabo, and two members of the allocations
committee, one
of whom was Thaabe (PW3). He says his investigations revealed that
the plaintiff had been allocated a site other
than that now claimed
by her, and that he found that chief Moshe Matsoso "had signed"
the Form C produced by defendant.
This evidence conflicts with that
of PW 3 and as will be seen later, the conclusion that Form C had
been signed by Chief Moshe
Matsoso was, to say the least, inaccurate,
and probably untruthful to his knowledge.

There was
also an inspection in loco.

The
magistrate, in a carefully reasoned judgment, found for the
plaintiff. He found that whereas the plaintiff had adequately proved

the allocation to her in 1974, the defendant had not established the
earlier allocation to him which he alleged had occurred in
March
1973. He was not satisfied with the Form C produced by defendant,
inasmuch as the measurement of the site reflected thereon
was 200 ft
x 100 ft, whereas actual measurement at the inspection in loco had
shown that it was in fact 216ft x 100 ft, and also
because of the
variance between the two Forms C produced by defendant. He rejected
the evidence of Mrs.

7

Sehlabo
on the basis that it was improbable that she had been present on the
occasion when the site was allegedly allocated to defendant,
and he
was clearly not impressed either by the investigations made by chief
Moshoeshoe Seoli, or by his evidence. As regards the
issue by him of
the Form C to defendant, the magistrate said that he did so "well
aware that the whole process was fraudulent
and full of
misrepresentations as to its true nature". The plea of res
judicata was dismissed on the basis that the order
of the Central
Court of Matsieng was not a final judg­ment, but merely an
administrative order.

A
subsequent appeal to the High Court was then dismissed, but leave to
appeal to this Court was then given on certain questions
of law. As
ultimately argued before this court, these points of law were:-

1. that
   no reasonable court could have come to the conclusion on the facts
   to which the subordinate court came;

   
   

2. That
   in terms of s.82 of the Land Act, 1979, the matter should have been
   decided in favour of appellant;

   
   

3. that
   the matter was res judicata

   
   

before the action in the subordinate court had been instituted;

8

4. that
   it is not possible to execute the order, as the site is not
   sufficiently defined;

   
   

5. the
   courts below had misdirected themselves in treating the allocation
   of a site in Lesotho as tantamount to ownership.

   
   

In
considering this matter on appeal, we have been conscious of the
difficulties that can arise in relation of sites where there
has been
no survey or pegging, and there is no precise system of land
registration. We appreciate that confusion may sometimes
occur, and
that a bona fide mistake may have taken place in 1974 between the
parties to the present dispute. But the dispute must
be determined on
the evidence that was adduced before the subordinate court, and the
issue before us is whether a reasonable court
could have come to the
conclusion reached by that court.

Logically,
the first issue before the subordinate court was whether plaintiff
had proved that the site identified by her at the
inspection in loco
had been allocated to her in 1974. There was clearly adequate
evidence that a site had been allocated (indeed
this was not
disputed), and there was an identification of that site at the
inspection in loco.

9

Plaintiff
had produced prima facie evidence in the shape of her Form C, and
supporting evidence by two members of the Land Allocations
Committee.
The magistrate accepted this evidence, and as it was clearly a
finding which a reasonable court could have made on the
evidence,
there is no basis upon which we can disturb it.

Indeed,
the probabilities seem to favour this finding, if one has regard to
the fact that very soon after the poles around the site
had been
removed by Defendant in 1974, members of the allocation committee
visited the site and thus had an early opprotunity of
checking that
the site which plaintiff had demarcated as hers was the same site as
had been allocated to her, and that one of them
then gave evidence in
the Local Court in 1975 to the effect that the site upon which
defendant was building had been allocated
not to him, but to
Plaintiff.

The
defendant's plea that even if the fact of such allocation was proved,
it was nevertheless improper or unlawful, is based only
on the
assertion that there had been a prior allocation of the same site to
him in 1973. The main difficulty faced by the defendant
in seeking to
establish this fact is that the Form C produced by him at the trial
is clearly and indisputably a forgery. The form
is one that on the
face of it states that it is the form prescribed by the Land Act,
No.20 of 1974. This Act was assented to on
20 February, 1974, and was
first published as an annexure to the Gazette of 15 March, 1974. The
form

10

is
prescribed by the Act, and is to be found as a supplement to the Act.
It follows that on the date when defendant's Form C purports
to have
been signed by chief Moshe Matsoso, that is, 23 February 1973, the
form had not yet even been printed by the Government
Printer. The
forms in use in 1973 were in the form of plaintiff's Form C, which is
different from defendant's. Defendant was therefore
clearly dishonest
in testifying that this form had been issued to him in 1973, and once
he is found to have been dishonest in this
respect, doubt is thrown
on his entire testimony. At this stage, the only question before us
is whether it can be said that no
reasonable court could have come to
the conclusion that defendant had failed to prove that the site had
been allocated to him in
March 1973, and the answer must clearly be
in the negative.

In
support of his next point of law, counsel for the appellant attempted
to place reliance on s.82 of the Land Act, 1979, which
reads:

"Where at the commencement of this Act, any land or part thereof
has, whether by error or other­wise, been the subject
of two or
more allocations, the allottee who has used the land and made
improvements thereon shall hold title to the land in preference
to
any allottee who left the land unused and undeveloped".

11

He
claimed that as defendant had developed the land by building a
substantial home thereon, and plaintiff had not developed it,

defendant should hold title thereto in preference to plaintiff.

Appellant
has two difficulties in placing reliance on this section. Firstly, it
applies only where the land in question has been
the subject of two
conflicting allocations. The purpose of the section is to cut the
Gordian knot when there have been two valid
allocations, not to avoid
a factual enquiry as to whether one or other of the allocations was
in fact made. In the present case
defendant failed to establish to
the satisfaction of the court below that there had been an allocation
to him in 1973, as alleged.
He did not contend that there had been a
fresh, valid allocation to him by chief Moshoeshoe Seoli in 1978. It
follows that he has
not shown the two allocations which must be
proved before 5.82 can have any application. In any event, it is to
say the least,
doubtful whether the section can apply where one
allottee wrongly dispossesses another allottee who is in occupation,
and the other
takes immediate and continuous steps to challenge the
occupation of the rival allottee. But it is not necessary to decide
that
particular issue in this case.

As far as
the defence of res judicata is concerned, it is necessary to consider
what the exact effect of the judgment in the Matsieng
Central Court
was. Normally when an appellate court allows an appeal from a lower
court and

12

and sets
aside its order, it will replace that order by its own. In a case
such as the Central Court was dealing with, it could
theoretically
have substituted one of two possible orders, either

1. judgment
   for the defendant with costs, or

   
   

2. absolution
   from the instance, with costs.

   
   

Had it
done the latter, the decision of the Central Court would not have
been sufficient to found a defence of res judicata. In
my view, if
one studies the reasoning of the Central Court and then tries to
interpret the judgment, it would seem that the judgment
was probably
no more than an absolution judgment. But even if that interpretation
is wrong, the judgment was at least ambiguous:
and this is in my view
not enough to support a plea of res judicata.

In
support of the next point of law, Appellant contends that no
reasonable court could have found for plaintiff because the site

allocated to her measured only 100 ft x 87 ft, whereas the site
occupied by defendant was found at the inspection in loco to measure

100 ft x 216 ft. Therefore, even if defendant was occupying
plaintiff's site, that site was only part of defendant's larger site,

and could no longer be identified. The argument advanced was that if
the Court is to make an order of ejectment which can be effectively

executed, the execution officer would

13

have to
be able to identify the exact area which defendant was encroaching
upon. A similar problem arose in the case of LESOTHO
CHOMANE v BABELI
TANKISO (C. of A. (Civ.) No.6 of 1980) where STEYN, AJA said:

"Did plaintiff prove with sufficient clarity the dimension of
the land in question in order to permit of the Court making
an
effective order?

The issues raised under this heading are complex. Clearly in a
society in which survey and registration of agricultural land is

comparatively unknown, one cannot exact the same standards of
accuracy as in a society in which these developments are well known

and long-established.

Nevertheless, the Court cannot make orders which are incapable of
effective implementation....

It must be borne in mind that Plaintiff has ..... applied for ....
an ejectment order. To obtain this relief he must establish

boundaries with sufficient certainty - although not with any­thing
like absolute certainty - to enable the court to make an

implementaple order."

It was
held in that case that the plaintiff had failed to establish the
boundaries with the requisite certainty. It is not possible
to
ascertain from the judgment what evidence was tendered, or why it was
regarded as being insufficient.

The
qualification in the extract quoted above was clearly a necessary
qualification. In the absence of survey pegs or other permanent

markers, it will often be difficult, if not impossible, in this
country to establish boundaries exactly and with certainty. The
type
of evidence that would

14

suffice
in the absence of permanent markers would include evidence of the
dimensions of the site, the location thereof, and contiguity
o to
neighbouring sites. Such evidence has been given in this case.
Plaintiff pointed out that her site, measuring 100 x 87 ft,
was
included in defendant's larger site, measuring 100 x 216 ft. this
evidence goes some way towards establishing the boundaries
of her
site. Can it be said it was done with "sufficient certainty"?
In my view, the evidence presented in this case
goes far enough.
Where the claimant had put down posts to demarcate the site, but
these have been taken down by the defendant,
the courts should not be
astute to require too demanding a degree of proof from the plaintiff.

When
dealing with this point in his judgment in the High Court, KHEOLA, J
said:

"What should be done is that the sheriff or messenger of the
court should measure an area of of 100 feet by 87 feet on the
site
that was pointed out as the one in dispute. There is evidence that
the appellant's big house is on the extreme end of the
site, and this
will make it easy for the sheriff to measure respondent's site on the
piece of land away from respondent's (this
should read "appellant's")
house".

In our
view, this indication of how execution is to proceed if the parties
cannot reach agreement on the area to be vacated by defendant,
will
effect substantial justice between the parties.

15

In the
grounds of appeal, it was contended that in giving such an
indication, the Court below had usurped the administrative functions

of a chief in cutting off a portion of defendant's site and awarding
it to applicant in the absence of definite evidence as to
exact
location. In my view, this is not an accurate description of what the
court was trying to do. Far from usurping the functions
of a chief,
it was endeavouring as best it could to give effect thereto in the
light of the difficulties inherent in defining sites
exactly in this
country.

The final
point of law that needs to be considered is the argument that there
was a misdirection in that the court below erred in
law in treating
an allocation of a site in Lesotho as tantamounttto ownership when in
fact and law it is merely a right to use
or occupy land. As far as
ejectment is concerned, there is however nothing significant in the
distinction between ownership and
the right of occupation. Even if
the plaintiff had merely a right of occupation, she was clearly
entitled to protect that right,
and to eject trespassers. In the
Heads of Argument, this point was elaborated upon, in these words:

"The Courts below treat land as property capable of being owned,
when in fact land according to custom is allocated for occupation
and
use. That being the case, the right of use and occupation having been
terminated on grounds of convenience, the courts could
not
interfere".

But it
was not contended by defendant in the pleadings

16

that even
if the plaintiff had validly been allocated a site, her rights had
been terminated. This was never an issue before the
Court, and the
point raised in this argument must therefore also fail.

In the
result, all the points of law raised by the appellant fail, and the
appeal must be dismissed with costs. We recognize that
appellant has
expended a large sum in building a substantial home on the site, but
if the judgment of the subordinate court is
given effect to in the
practical manner suggested by KHEOLA, J then the hardship to him will
be minimized.

The order
of the court is that the appeal be dismissed, with costs,

Sgd: ...................................

S. AARON

Judge of Appeal

I agree
Sgd: ......... W.P.SCHUTZ.............

W.P. SCHUTZ

President of the Court of

Appeal

I agree
Sgd: ...........I..MAHOMED..............

I. MAHOMED

Judge of Appeal

Delivered
at MASERU on this 23rd day of FEBRUARY, 1987.

For the
Appellant : Mr. Maqutu For the Respondent : Mr. Matsau

17

in the
knees, he dismissed this casually by saying that such complaints were
frequent in cold weather.

There was
evidence by another witness called by defendant (a prison warder)
that on this occasion that appellant was taken to be
examined by the
doctor, he was given medicines. He conceded that:

" It is quite definite that on the 7th of September when he
arrived in hospital (sic) in prison the first time he was ill
enough
to require medical treatment".

The
prison officer who escorted appellant to the hospital (a witness for
the defendant) was present during the medical examination.
He
confirmed that appellant com­plained about his knees and feet,
but the doctor "merely looked at him and took a paper
and
prescribed medicine on that paper".

The
learned judge's comment was confined to the matter of diet, yet it is
common cause that appellant was given only bread and water
flavoured
with Oros. The only dispute on this point is whether he received a
thick slice of bread, or half a loaf; and whether
he received this
twice or three times a day. This does not seem to us a basis for
rejecting the appellant's other evidence.

Bearing
in mind the inherent difficulties faced by both plaintiffs and
defendants in cases such as these, we have come to the conclusion

that whilst the balance of probabilities does not establish all the
details of the assaults to which appellant testified, they
do
establish

18

that he
was assaulted in more respects than merely being handcuffed for a
very long period. It is not possible to quantify damages
in
circumstances with any degree of accuracy where the full details of
what occurred are not known. The Court can only do its best
on the
available material, and general damages are a matter for the Court's
discretion. Some guidance is provided in this case
by the period of
detention, the age and status of the appellant, the existence of
wounds on his thighs and hands, his weak condition,
and the admitted
circumstances in which his interrogation took place.

In our
view an award of M6,000 would have been a suitable sum in respect of
damages which would embrace pain and suffering and also
contumelia.
In addition appellant was entitled to M32.80 for medical expenses.

In the
result the appeal is allowed against both defendants, with costs to
be paid by them jointly and severally. The judgment of
the court a
quo is altered to read:

"
There will be judgment for the Plaintiff in the sum of M6,032.50
against the Defendants jointly and severally. Defendants
are ordered
to pay one-half of the Plaintiff's taxed costs of the whole action.

(Sgd)

S. AARON, J.A.

I agree

I. MAHOMED, J.A.

Delivered
in open court at Maseru this 12 day of November, 1985