CIV/A/6/81

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of

SEBOTSANE
MANKO Appellant

v

NKHABE
LEBONA Respondent

JUDGMENT

Delivered
by Hon. Mr. Justice F.X. Rooney on the 5th day of April, 1982.

Mr.
Maqutu for the Appellant

Mr,
A.P.S. Mda for the Respondent.

In 1978
the appellant sued the respondent in the Thaba Morena Local Court for
an order ejecting him from his land. The appellant
claimed that the
land had been allocated to him in 1940 by the late Morena Tsela
Lerotholi. He continued to plough the land until
1978 when the
respondent entered upon it and ploughed it in contravention of the
appellant's rights,

In his
reply to the claim the respondent said that the land belong to his
grandfather Manko who had two sons. These were, Lebona,
the elder and
father of the respondent and the appellant Sebotsane. Lebona
predecesed his father and until 1965, the appellant
was his guardian,
Manko's widow Milida subsisted from the land until she died in 1967.
Thereafter, the respondent obtained a title
to the land from Morena
Qefate, but, he continued to allow the appellant to use the land
until 1978.

The Local
Court decided in favour of the appellant and the respondent appealed
to the Ramokoatsi Central Court. The Central Court
set aside the
judgment of the Local Court and restored the land and the crops to
the present respondent. The appellant's appeal
to the Judicial
Commissioner against that decision was not successful

2

He was
given leave to make a further appeal to this Court.

Much of
the time and attention of the courts below appears to have been
concentrated on the allocation made by Chief Qefate in 1968.
There
was considerable discussion as to the legality of that allocation.
Insufficient consi­deration was given as to what took
place in
1940. The appellant maintains that in that year, the land was
allocated to him and not to his father Manko. He called
a witness,
Mahlahle Rankhobe (then aged 55) who confirmed that the land had been
allocated to the appellant. He said that Manko
was present at the
time. Another witness, Maphelle Letele (then aged 78) said that he
was instruced by Morena Tsela Lerotholi to
allocate the land to the
appellant. He said that, he was one of the observers. Further
evidence on this point was supplied by Ts'abo
Ntho (then aged 74) who
claimed that he was also one of the persons requested by the Chief to
allocate the land.

The
respondent himself was a child of three in 1940. He could not give
direct evidence in regard to the allocation of the land.
The
respondent's witnesses included Morena Qefate who admitted that he
was not present when the original allocation was made. However,
he
maintained that he had seen Manko ploughing the land and that he knew
that he was the owner because he was a Chief. He agreed
that he was
still at school when Manko died. A man called Rantsatsaile Rankhobe
perported to confirm the respondent's claim, but,
he admitted that he
was not present in 1940. The only other witness, Ts'episo Mphamo said
that he had been secretary to Morena
Tsela Lerotholi. He had to
confess that he was not present when the appellant's land were
allocated. He said that the plaintiff
had surrendered the land to the
respondent.

In his
Judgment, the Judicial Commissioner said.

"It seems to me that the parties tell of two different
allocations of the same land by two different chiefs at different
times. The trial court was not simply convinced that the allocation
was made by chief Tsela in 1940 but it also believed that Chief

Qefate had no land committee".

3

He went
on

"While the judgment of the Central Court may be criticised for
holding that the chiefs and not the courts award the land and
for
overlooking the fact that the trial court might have believed that
Chief Tsela had made the allocation, I however lean to the
view that
Chief Qefate's story was probable and the fact of long user makes no
difference as appellant brought the respondent up
and the responde­nt
did not immediately take over when he became of age."

At the
original hearing the appellant brought before the court direct
evidence of the allocation of the land to him. This evidence
was not
contradicted.All that was said in reply was that the respondent had
been granted the same land by Chief Qefate in 1968.
Chief Qefate's
purported allocation would be valid only if the appellant was not
entitled to the land.

Chief
Qefate may be expected to justify his action even if he was in error.
I take the view that in the face of the uncontradicted
testmony of
the appellant and his witnesses, the Thabana Morena Local Court was
entitled to decide in his favour. It is unfortunate
that the Local
Court based its decision on the wrong reasons. In the result the
appellant has had to endure prolonged litigation.
He was fully
justified in taking his case to this Court on appeal.

This
appeal is allowed and the judgment of the Local Court is restored.
The appellant is awarded his costs in this and in all lower
courts.

F.X.
ROONEY

JUDGE

5th
April, 1982.

Attorney
for the Appellant :Mr.w.C.M. Maqutu,

Attorney
for the Respondent: Mr. A.P.S.