CIV/APN/318/86
IN THE HIGH COURT OF LESOTHO
In the Matter of:
TEYATEYANENG SECONDARY SCHOOL
FOUNDERS/PARENTS ASSOCIATION ... 1st Applicant
ESAIA THITE.................... 2nd Applicant
and
LESOTHO EVANGELICAL CHURCH..... 1st Respondent
JEREMIAH NONYANA LEBEKO......... 2nd Respondent
COMMISSIONER OF LANDS.......... 3rd Respondent
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 20th day of February, 1987.
In an application wherein the applicants have obtained a lengthy rule nisi the effect of which is to give back the administration of Teyateyaneng Secondary School to the Founders/Parents Association and ordering the third Res-pondent to issue a lease in respect of a school site, Plot No. 19213-001, to the said Founders/Parents Association the 1st and the 2nd Respondents have raised points in limine.
The question of who owns the Teyateyaneng Secondary School and, therefore, entitled to administer it has been the subject of numerous
court decisions and in the interest of clarity,it is, perhaps, helpful to set out, in a nut shell, the history thereof.
On 21st January, 1985, the Lesotho Evangelical Church as applicant, obtained against Esaia Thite and the Standard Bank PLC, as 1st and 2nd Respondents, respectively, a rule nisi firstly calling upon Esaia Thite to show cause why he shall not be interdicted from having anything to do with the running and administration of Teyateyaneng Secondary School; and secondly calling upon the
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Standard Bank PLC to show cause why it shall not be interdicted from paying any money, out of the Bank account kept in the name of the said Secondary school, to Esaia Thite and/or his agents.
Although the Standard Bank PLC did not oppose confirmation of the rule, Esaia Thite did. The rule was, however, confirmed on 25th March, 1985. Esaia Thite was unhappy with the decision against which he appealed to the Court of Appeal.
On 25th July, 1985, the Court of Appeal sat to hear the appeal when it was ordered, inter alia, that the agreement between the parties filed of record be made an order of the court. The terms of that agreement read, in part:
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"The Order of the court below is set aside and the matter remitted to the High Court for the hearing of oral evidence for the purpose of resolving the disputes of fact which exist on the papers, and a determination of the issues raised in the Application.
The disputes of fact relate to, and the issues to be determined by the High Court are :-
who is entitled to run and administer the school at Teyateyaneng known as "T.Y. L.E.C. Secondary School" or "Teyateyaneng
Secondary School" or Teyateyaneng F.P.A. High School."
who is entitled to utilise the funds in and operate upon the banking account at the Standard Bank Maseru previously under the name "Teyateyaneng L.E.C. Secondary School" and at present under the , name "Teyateyaneng F.P.A. High School."
Accordingly whether the Applicant was and is entitled to all or any of the relief sought in the notice of motion."
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As directed by the Court of Appeal, the High Court heard oral evidence and on 17th February, 1986. again, confirmed the rule nisi in favour of the Applicant church. Esaia Thite was again dissatisfied with the decision against which he once more appealed to the Court of Appeal.
In July,1986 the Court of Appeal again heard the appeal and took the view that the High Court did not fully apply its mind to the terms of reference under which the matter had been remitted. The Court of Appeal itself then proceeded to consider the oral evidence adduced before the court a quo and concluded, inter alia:
"In the light of the above considerations I am unable to find that the Respondent, as applicant in the interdict proceedings, has discharged the onus resting upon it. Indeed the considerations mentioned above indicate that the probabilities point in the
opposite."
Notwithstanding this decision of the Court of Appeal, it would appear that the Lesotho Evangelical Church continued to run and administer the school, the subject matter of this case, and Mr. Jeremiah Nonyaha Lebeko, the Principal thereof, insisted that his responsibility as a teacher at the school, was with the church and not the Founders/Parents Association. The problem was compounded by the allegation that the Commissioner of Lands had issued or was in the process of issuing a lease, for the school site, in the name of the Lesotho Evangelical Church.
Consequently, the applicants instituted against the Repondents the present application proceedings in which they prayed for a rule nisi as aforesaid. I granted the rule on 3rd October 1986. The 1st and the 2nd Respondents intimated their intention to oppose confirmation of the rule. On behalf of the applicant the founding affidavits were sworn to and filed by the 2nd applicant himself, Joseph Mokete and W.M. Tsotsi. Tello Mongangane also purported to file a founding affidavit which was, however, not sworn to and can, therefore, be ignored. The second Respondent and one Lebeko Lebeko deposed to, and filed the answering affidavits.
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A Replying affidavit was also filed.
The 3rd Respondent filed no notice of intention to oppose confirmation of the Rule and it is presumed that he will abide by whatever decision is arrived at by the court.
The points in limine were firstly that 1st Applicant being a registered association, had filed no resolution. There was therefore, no indication that it intended to institute these proceedings or that the 2nd applicant was authorised so to do. Secondly the applicants
had not shown that they had a clear right in the school. The proceedings were for those reasons defective.
As regards the first point in limine I must say where proceedings are instituted on behalf of a legal person, such as the 1st Applicant who is admittedly a registered association, it is common practice to annex an extract of the minutes of a meeting of the executive
committee indicating that it has been resolved to bring the proceedings to court and someone authorised to sign the necessary documents. In the instant case it is common cause that no such extract was annexed to the motion paper that instituted these proceedings..
It is, however, to be observed that in his founding affidavit the 2nd applicant has clearly stated on oath that he is not joined in his personal capacity but as a chairman representing the 1st applicant in these proceedings. The notice of motion itself purports to emanate from a firm of attorneys acting on behalf of the 1st and the 2nd applicants. Indeed, Dr. Tsotsi, a practising attorney of this court, has deposed to an affidavit in which he categorically avers, inter alia, that he is the attorney of the record for the applicants.
It seems to me that the avernments on oath by both the 2nd applicant and attorney Tsotsi that they are acting on behalf of the 1st applicant in those proceedings have the necessary implication that they have been authorised so to do by the 1st applicant vide Thorne v. Retail Trades Inquiry Bureau Ltd. and Another 1936 T.P.D. 310 at p. 314 where it was said:
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"...... an allegation of agency is an allegation that the agent is authorised to make the application............."
I conceed that it would have been wiser for the applicants to have filed the resolution but to say failure to do so, in the circumstances of the present case, justifies the upholding of the first point in limine would, in my view, be stretching formality too far.
Coming now to the second point in limine it seems to me that the conclusion reached in the above cited decision of the Court of Appeal was, in effect, that T.Y. Secondary School and the administration thereof belonged not to the Respondent Church but to the 2nd Applicant who is the Chairman of, and represents, the 1st Applicant. Assuming the correctness of this view, the Respondents cannot, therefore, be heard to say the applicants have not shown that they have a clear right in the school.
It may be mentioned that there is another application CIV/APN/335/86 in which the applicants have moved the Court for an order, inter alia, committing the 2nd Respondent for failing to comply with the Court Order granted in the present application. It was argued on behalf of the 2nd Respondent that as the order in CIV/APN/335/86 is based on the defective proceedings in CIV/APN/318/86 it was also defective.
I am not convinced that the proceedings in CIV/APN/318/86 are defective. That being so it stands to reason that I am unable to agree with this argument.
From the foregoing, it is obvious that the view that I take is that the points raised in limine ought not to succeed and they are accordingly dismissed with costs.
JUDGE.
20th February, 1987.
For Applicant : Mr. Edeling
For Respondent : Mr. Matsau
