Chokocha Hatla v Anwary Carrim (C OF A (CIV) 4/2023) [2024] LSCA 4 (3 May 2024)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU In the matter between: CHOKOCHA HATLA And C of A (CIV) 04/2023 LC/A/0008/19 APPELLANT ANWARY CARRIM RESPONDENT 1ST LAND ADMINISTRATION AUTHORITY 2ND RESPONDENT CORAM: MOSITO, P CHINHENGO, AJA VAN DER WESTHUIZEN, AJA HEARD: 15 APRIL 2024 DELIVERED: 3 MAY 2024 Summary An appeal cannot proceed if the cited respondent was deceased, or has not received service of papers, from the outset. JUDGMENT VAN DER WESTHUIZEN, AJA: [1] During oral argument in this matter, counsel for the appellant indicated that the appeal was being withdrawn. Counsel for the first respondent, as well as the Court, accepted the withdrawal. Very brief reasons for this development are hereby recorded. [2] The dispute at the heart of the matter revolved around title to a piece of land. Mr Chokocha Hatla, the appellant, alleged that he had inherited the site in issue and that he had been nominated by the family as heir. [3] As the first respondent, the appellant cited Mr Anwary Carrim, who was also alleged to be entitled to the land. The relief sought by the appellant included the cancellation of a lease Carrim appeared to hold. [4] The Land Court granted Mr Hatla’s application. The High Court (sitting as a Land Court) overturned this decision. Hence, Mr Hatla appealed to this Court. [5] However, the papers were never serviced on Anwary Carrim. In his “Affidavit of Non-Service” the messenger of the Magistrate’s Court stated that when he attempted to serve the papers at Anwary Cassim’s last workplace, he was informed by a Mr Naga that Anwary was “not there” and that one Imtiaz Carrim was responsible for accepting service but was out of the country. According to the messenger, one Omar Cassim informed him that Anwary Cassim was “late, having died in the year 2000”. Thus, the messenger “returned with the process unserved”. [6] Imtiaz Carrim participated in the later proceedings, to some extent, but was neither formally joined, nor properly authorised to represent Anwary Carrim. [7] In the Land Court and the High Court considerable attention was given to the question whether Anwary Carrim’s death had been proven, in the absence of a death certificate, as well as the significance of the messenger’s affidavit in that regard. [8] The crucial point, however, is that the first respondent, cited by the appellant, was never a party to these proceedings. Whether he was dead or alive, he never received service and there was no indication that he was aware of the litigation about the dispute. Imtiaz Carrim was not cited as a respondent and thus not a party to the proceedings. An order, including to pay costs, against an individual who may or may not be dead, but who is in any event not before the court as a party to the proceedings, would make no sense. An order against for example Imtiaz, who is not a respondent, would be irregular and meaningless. [9] This became clear when oral argument in this appeal commenced. Both counsel agreed. [10] Thus the appeal was withdrawn. _______________________________ J VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL I agree ____________________________ KE MOSITO PRESIDENT OF THE COURT OF APPEAL I agree ____________________________ M CHINHENGO ACTING JUSTICE OF APPEAL FOR THE APPELLANT: ADV AM MAKASE FOR THE RESPONDENT: ADV T R MPAKA 5