CIV/T/114/79

IN THE
HIGH COURT OF LESOTHO

In the
Matter of :

CELINA
RAMAKORO Plaintiff

v

POSHOLI
PEETE Defendant

JUDGMENT

Delivered
by Hon. Mr. Justice F.X, Rooney on the 2nd day of August, 1982.

Mr. Sello
for the Plaintiff Mr. Maqutu for the Defendant.

This
action was instituted on the 18th May, 1979 and has made little real
progress since that date as the parties have become involved
in
procedural disputes. The defendant has not yet filed a plea. The
plaintiff who is a chief seeks an order restraining the defendant

(who is also a chief) from interfering with the plaintiff's
performance of her chiefly rights in en area in the Berea district.

On the
27th March, 1981, the learned Chief Justice upheld an exception to
the plaintiff's declaration on the grounds that

1. it
   was vague and embarrassing and

   
   

2. that
   it disclosed no cause of action.

   
   

The
plaintiff took the matter to the Court of Appeal and on the 3rd July,
1981, that Court upheld the view that the pleadings were
vague and
embarrassing and gave the defendant leave to amend her declaration
within 21 days of the Court's order. However, the
Court of Appeal
held that the exception based on there being no cause of action
should not succeed.

2

On the
24th July, 1901, the plaintiff filed an amended declaration. In
responce thereto the defendant

applied
to strike out paragraph 3 of the plaintiff's amended declaration on
the grounds that it is inconsistent with a statement
contained in
further particulars supplied on the 25th July, 1979 at the request of
the defendant.

Paragraph
3 of the amended declaration reads as follows :

"Notwithstanding the fact that there is a clear and established
boundary between the respective areas of jurisdiction of the
parties
herein, the defendant has been guilty of the acts hereinafter set
out".

In
paragraph 1 of the further particulars already referred to, the
plaintiff stated :

"There is no boundary between plaintiff and defendant".

The exact
position of the plaintiff on this issue is,of importance to the
defendant In its judgment the Court of Appeal drew a clear

distinction between a dispute as to boundaries and an action for
tresspass It is well established that it is not for the Court
to
determine boundaries and if the issue in this action is a disputed
boundary, this is a matter for the administration and not
for the
Courts.

Mr.
Magutu for the defendant submitted that the plaintiff's amended
declaration involves a change of front on her part without
explanation which should not be permitted. He relied upon Hansen v.
Concor-Grinaker Pty Ltd. 1974(4) S.A. 27 and President -
Versekeringsmeatkappy
(BPK) v. Moodly 1964(4) S.A. 109 in support of
his contention. These cases are authority for the proposition that
where a party
seeks to amend his pleadings in such a way as to
present allegations inconsistent with ones already made, this should
not be allowed
without an adequate explanation to convince the court
that the application is bona fide.

In the
oresent case the plaintiff's original declaration was in effect
struck out and he was granted a

3

unconditional
leave to amend. The Court of Appeal was acting in accordance with
Order No. 29 (7) of the High Court Rules Rule 25
(3) provides that a
request for particulars together with a reply thereto shall form part
of the pleadings. However, it appears
to me that the particulars of a
pleading which has been successfully excepted to, as in this case,
cannot be allowed to stand as
pleadings in the absence of the
declaration or plea or other pleading to which they relate. When the
Court of Appeal upheld the
exception to the declaration it left the
plaintiff in the position that she would have been in if she had
issued a summons without
a declaration. She has now made her case
afresh and the defendant knows what it is that he must now meet. The
apparent contradiction
between the formerparticulars and the present
declaration may be a matter for comment when the action comes to
trial. The position
of the defendant would be no different, if the
plaintiff had elected to abandon the present action and issue a fresh
summons and
declaration on the lines that she is presently pursuing.
In the circumstances, the defendant's application must be dismissed
with
costs.

I may add
that in the course of his argument Mr. Maqutu contended that Section
6 of the High Court Act 1978 applied to these proceedings
and that
the dispute between the parties was within the jurisdiction of a
subordinate court, namely the Central Court for the Berea
District.
He said that this Court has not given leave for the institution of
the action in the High Court,

In reply,
Mr. Sello for the plaintiff argued that the relief which was sought
was by way of permanent interdict and that a central
court,
constituted under the Central and Local Courts Proclamation 1938, did
not have the power to grant such relief.

Mr
Maqutu's point was raised for the first time more than three years
after the action was begun. In the intervening period the
cause of
action has been considered both in this Court and in the Court of
Appeal without the

4

issue of
jurisdiction being raised. To decline jurisdiction at this late stage
would be prejudicial to the plaintiff. The parties
have chosen their
forum and they must now abide by its decision.

F.X,
ROONEY.

JUDGE

2nd
August, 1982.

Attorney
for the Plaintiff, Mohaleroe, Sello & Co.

Attorney
for the Defendant, Mr. Maqutu.