Ramaisa v Ramakatane and Others (CIV\APN 443 of 95) [1998] LSCA 87 (31 July 1998)

1 CIV\APN\443\95 IN THE HIGH C O U RT OF L E S O T HO In the Application of: JOSHUA RAMAISA Applicant vs JESSIE R A M A K A T A NE M A M O H A PI M A R T HA PHALATSI THE COMMISSIONER OF LANDS LESOTHO B A NK T HE REGISTRAR OF DEEDS THE A T T O R N EY G E N E R AL 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent REASONS FOR J U D G M E NT Filed by the Hon. Mr Justice M L. Lehohla on the 31st day of July. 1998 On 23rd September, 1996 this Court made the following order : "Points of law raised on behalf of the respondents are upheld with costs. Reasons for judgment to follow". These are now the reasons spoken of :- The applicant had obtained on 7th December 1995 a Rule Nisi returnable on 18th December 1995 calling upon the Respondents to show cause, if any, why 1. (a) The Deed of Transfer marked "JR3" and annexed to the applicant's founding affidavit shall not be declared null and void and of no force and effect; (b) The Minister's Consent accompanying "JR3" shall not be declared invalid and of no force and effect; © the purported hypothecation of land described as plot number 13283-331 situate at Cathedral Area, Maseru Urban Area by the 1st Respondent in favour of the 4th Respondent shall not be declared invalid and of no force and effect; (d) The registering of the said hypothecation by the 5th Respondent shall not be declared of no legal force and effect; (e) A copy of Lease No. 13283-331 annexed hereto and marked "JR2" shall not be declared sufficient to pass transfer of the land from the 2nd Respondent to the Applicant; (f) The 1st Respondent's occupation of the land and premises situate thereon shall not be declared unlawful; (g) The 1st Respondent shall not be ordered forthwith to vacate the land and premises situate thereon; (h) The 1st Respondent shall not be ordered to pay the costs of this application on the scale as between attorney and client, the other Respondents to pay only in the event of opposing same; (I) granting such further and\or alternative relief. 2. That prayer l(e) (arc) not operate with immediate temporary order of Court. The application giving rise to the above order w as opposed. However on the return day all that was argued before me revolved around points raised in limine. Based on points raised in limine I limine I accept as sound the view that the applicant's side has misconceived the plea of prescription; in circumstances where it related to claims to property as against claims to money. I take the view that what prescribes is the applicant's cause of action and not his claim against any specific person. Thus if property changes hands during the period under review, such mere change does not interrupt prescription. According to applicant's averment in paragraph 5.1 at page 6 it is stated that "Around 1958 I was allocated site No.22 Cathedral Area Maseru by the then allocation committee under the Chairmanship of the late Chief Phiri Motemekoane. O ne of the committee members w h om I recall is one Makalo Khaketla w ho is well-known countrywide" It is apparent that the applicant on acquiring the land he immediately passed it on to Buta Phalatsi. He goes on to say Buta Phalatsi sublet the property to the 1 st respondent. The applicant's case is that in 1993 the property changed hands. A point of some vital importance raised on behalf of the 1st respondent is that when Buta Phalatsi transferred property it was over thirty years since acquiring it from the applicant; meaning that if Buta Phalatsi was alive his claim would have failed Obviously the point misconceived by the applicant's counsel is that prescription raised is vis-a-vis. Buta Phalatsi himself. The Court has had regard to the next point raised in argument and papers relating to the 1st respondent's paragraph 5 at page 33 of the paginated record; and this point has not been dealt with in the replying affidavit despite that the 1st respondent has challenged the applicant in very succinct terms namely that: " In the premises I invite the Applicant to submit, even at this late stage, an Affidavit from the said Makalo Khaketla w ho is also well known to m e, concerning the existence of the alleged allocating committee and his membership of the same. I am further advised that, certainly from the promulgation of the Deeds Registry Act 1967, it is not enough, in support of one's claim to land situate in an urban area, to rely on a bald allegation that one was allocated such land ". It is significant therefore that while granted that Phiri Motemekoane is dead and can be of no use to substantiate the applicant's averment, the applicant failed to call Makalo Khaketla w ho is alive when dared by the 1st respondent to call the witness whose name emanates from the applicant's o wn papers. The only inference to draw in such circumstances is that the applicant declined to take the challenge because he knew that Khaketla would distance himself from what the applicant alleges he would do. The Court thus looks with favour at 1st respondent's counsel's submission that it is impossible for any chief or headman to have validly allocated any land to the applicant. Revolving around the 1st respondent's averment that since the promulgation of the Deeds Registry Act 1967, is the fact mat all land allocations had to be shown through Form C's within three months failing which the particular allocation in question would lapse and the land would thus revert to the Basotho Nation. See page 34 at paragraph 5.2(a). W h at is patent is that Phalatsi on the one hand obtained a certificate of allocation and duly registered it in the Deeds Registry. The applicant on the other hand baldly states before Court that he himself was allocated this land without any regard as to h ow and w hy Phalatsi got it registered in his o wn name. The Court is subjected to some anxiety with regard to the validity of the applicant's claim taken against the background of his o wn statement that at the Deeds Registry he could only find the top cover of the title deed; and nowhere does he say he got evidence of document in title. At paragraph 5.2 at page 6 applicant says he gave his title deed to Buta Phalatsi as the latter needed a loan at the Bank. But that w h en he started looking for the title at the Deeds Registry he only got the top cover in favour of Buta Phalatsi. He doesn't say he got written document of allocation. The Court takes judicial notice of the fact that Title Deeds didn't exist before 1967 The Court is thus wary of the applicant's attempt to convey the attitude to the Court that instead of transferring to Buta Phalatsi a title Deed; Phalatsi was given a n ew one. It is c o m m on cause that Buta Phalatsi registered a number of bonds raised as security with the Bank. Another point of law raised in limine relates to the attitude of the law w h en someone tries to enforce a right between him and the deceased but waits for over 40 years to claim rights accruing as a result of an agreement that gave rise to such rights. The view that the law takes generally is that the onus is always very heavy on a party w ho tries to enforce his right a long time after the alleged right has been interfered with and he let it pass in silence even though he w as aware of the interference at the earliest possible moment. Prescription Estoppel Even if the Court is wrong in holding for the 1st respondent in any one of the points raised above it can hardly be faulted for holding for him by relying on the doctrine of Prescription Estoppel bearing in mind that in the applicant's o wn admission Buta Phalatsi occupied the property for more than thirty years giving the world this was his own. 1 am fortified in my view given that one of the fundamentals of ownership is possession. It is significant that the applicant fights shy of taking the bait here where the question is "are you claiming the land or the improvements as well; seeing that Buta Phalatsi has made improvements thereon?" It strikes me as totally untenable therefore that the applicant should wait for Buta to die, the purchaser to buy and then come to court to lay claim on urgent basis even. I can only say the train seems to have left the metals in regard to the applicant's heads of argument at paragraph 14 where it is pointed out that the 1st respondent is estopped from making any challenge "in the light of the second respondent's admission that the site is applicant's". The position in law is that estoppel is a weapon of defence. But the view taken by applicant's counsel would tend to turn this principle on its head. That to my mind would be wrong. The Court seriously considers that abuse of Court process is involved in this matter regard being had to the fact that what is involved here is not a simple cancellation of a lease but a claim to property proceedings of which should not have been instituted by way of an application but a proper summons. As it is the whole procedure adopted is not only unsupportable in law but vexatious. A claim to property cannot be made by w ay of application Most curiously of all even, the application was moved ex parte. I entertain no doubt that the applicant realised and was warned from the beginning that his application would be hotly contested. Not only so but serious disputes of fact would arise as they indeed arose. For instance the applicant said Buta Phalatsi was not a citizen of Lesotho hence no w ay could he have been allocated a site. The 1st respondent counters by saying to the best of his knowledge and belief Phalatsi was a citizen of Lesotho by birth. It is indeed bewildering that the applicant could have entertained a fanciful notion that this proceeding would be patient of resolution on mere papers. On this ground alone the application ought to have been dismissed. In the middle of the controversy that was going on by w ay of submissions between Mr Mfantiri for the applicant and Mr Sello for 1 st respondent Mr Moiloa acting for 4th respondent registered his client's opposition to the applicant's claim and crisply submitted that as it seemed applicant's counsel was asking the Court to make a finding from non-response of the 2nd respondent such a procedure should not be allowed as it is untenable to try to prove title to immovable property in an urban area in ways other than by production of a registered to such land. I entirely agree. In his o wn words the position he is in n ow subsisted for forty years. This amounts to a gross abuse of legal process. In the result the points raised in limine were upheld with costs but unfortunately not on attorney and client scale. JUDGE 31st July, 1998 For Applicant: Mr Mafantiri For 1st Respondent: Mr Sello For 4th Respondent: Mr Moiloa