Monyake v Monyake (CIV/A/ 15 of 79) [1980] LSHC 42 (8 July 1980)

C I V / A / 1 5 / 79 IN THE HIGH COURT OF LESOTHO In the Appeal of : 'MATSA MONYAKE Appellant v LENGOLO MONYAKE R e s p o n d e nt J U D G M E NT Delivered by the Hon. Mr. Justice F. X. Rooney on the 8th day of July, 1980. The appeal is brought on the certificate of the Judicial Commissioner who gave leave to appeal to the High Court on the following grounds. (a) Whether the Court errend in hearing the appeal in the absence of the lawyers for the then respondents. (b) Whether the Court was justified to reach a different finding of fact from that reached by the trial Court that the late Chief Lengolo Monyake I passed the ownership of the kraals to the respondent. The appellant did not pursue the appeal on ground (a) above. The Court is therefore concerned solely with the findings of fact in the Basotho Courts and the decision of the Judicial Commissioner to reverse those findings. The suit began in the Thabana-Morena Local Court on the 19th October, 1976 when the present appellant claimed that there should be restored to him a portion of his site including the cattle kraals which were seized by force by the respondent who is the Chief of the area. It appears that on the 15th May, 1976 the respondent called upon members of the Lebotho la Khotso to move the appellant's cattle from the kraals and to demand that ho restore stones and rebuild the kraals and cease ploughing before his forecourt. The appellant complied with these orders "for fear of molestation". 2/ The appellant .... - 2- The appellant is a son of the late Chief Lengolo. In 1941 the Chief left the site to live with his daughter and he informed the family that he was leaving the homestead to the appellant. After the Chief's death in 1948, he was suceeded by an elder son Chief Bureng the father of the present Chief who is the respondent. The appellant claims that Chief Bureng never disturbed him in the possession of the whole of the site, and made no objection to alterations to the kraals. In due course the appellant obtained a Form C confirming his possession but not describing the extent or area of the site. Before the Local Court the respondent said that it was not clear to him what portion of the site was disputed. When it was explained to him that it was the area upon which the cattle kraals stood, he pointed out that there was a case in the magistrate's court pending as he had there sued the appellant for damages caused by the appellant's occupation of the kraals. He also disputed the land in front of the forecourt and pleaded that the appellant had not followed the proper procedure in respect of that portion. He also referred the Local Court to a case 58/61 heard by the Tsoloane Local Court which he said the appellant had lost. The hearing resumed on the 30th December, 1976. It was stated that the appellant had 3 kraals one of which was built in 1952/53. Evidence was then taken. From it emerged that the appellant has a cattle kraal at another place, Baile Monyake (PW 1) admitted that the appellant removed his cattle to the new kraal in 1953. and that even after the late Chief had gone to live with his daughter, he maintained cattle in the disputed kraals. The appellant's wife, 'Malehlohonolo (PW 2) said that Chief Bureng made no objection when her husband renovated the disputed buildings. She said that the appellant moved his cattle in 1952 because of liquid dung. She also admitted that the late Chief had con- tinued to use the kraal until his death when his successor Chief Bureng moved his father's cattle away. Richard Monyake (PW 3) another member of the appellant's family supported the case and said that the appellant had always made use of the kraals and the forecourt. 3/ The respondent ..... - 3- The respondent agreed that the appellant was in lawful occupation of the homestead of Chief Lengolo, but he said that the site which he inherited did not include the kraals. He said that the appellant built his own kraal in 1952 to avoid a clash with his elder brother's sons. Chief Bureng then used the disputed kraals as a pound. Bureng died in 1974 when according to the respondent this dispute began. He told the Local Court that in front of the appellant's forecourt, there is an area which the appellant used to grow vegetables and trees. He said that this area was required to allow the passage of animals to the village. The use of the land by the appellant obstructs this right. Cross-examined the respondent said "I never said plaintiff should not plough in front of the forecourt. It may be ten feet or more". It appears that the respondent used his position as Chief to dispossess the appellant of the land in dispute. Other witnesses testified that in 1976 the appellant ploughed virgin ground in front of his house over part of the public passage to the village. The Court President made an inspection in loco. He made a note of his observations and the representations made by both parties. The boundary of the appellant's land in front of his forecourt was not established. In his judgment the Court President remarked that "respondent's arguement is that plaintiff has blocked the passage from the Chief's place to Malesimole's. From my observation on the 3.1.77 this is not so. Pedestrians and animals use the passage freely". He went on "The portion before the forecourt is part of the forecourt and the plaintiff would be inconvenienced without it. In regard to the disputed kraals the judgment said "there would never be peace if they were to be used by somebody other than the plaintiff". The Court held that the real dispute "would appear to be succession", and "According to custom families do not eat each other". Judgment was given in favour of the appellant. 4/ On appeal -4- On appeal to the Central Court the judgment of the Local Court was confirmed in all respects. The matter then went to the Judicial Commissioner who reviewed the evidence led in the Local Court. The Judicial Commissioner concluded that the trial court had yielded to emotions. He criticised the remark that peace could not be achieved unless the appellant used the kraals. He held further " from the evidence before this Court there is nothing that suggests that Chief Lengolo I had at any stage abandoned his rights to the kraals in favour of the respondent" (The present appellant). He considered that the probabilities were that at all times the late Chief Bureng used the kraals and that these have been looked upon as the Chief's pound. In regard to the forecourt area the Judicial Commissioner took the view that the mere fact that there was room to pass does not of itself authorise the Courts to allow people to use land not lawfully allocated to them. The Judicial Commissioner entered a verdict of absolution from the instance. The Local Court had issues of fact before it as to the title to the kraals and the extent of the area in front of the forecourt which the appellant was entitled to in terms of the settlement made by his father Chief Lengolo. I agree with the learned Judicial Commissioner that these issues had to be decided on the evidence and not on con- siderations of convenience. The Local Court misdirected itself in its approach to the dispute before it. The salient facts were not in dispute. The late Chief Lengolo continued to make use of the kraals even after his departure. This suggests that he did not intend to regard them as part of the homestead granted to the appellant. I deprecate the action of the respondent in taking the law into his own hands by an action of spoliation in ejecting the appellant from the disputed kraals with the asistance of the Lebotho la Khotso. If the appellant had denied him access, his proper remedy was a resort to the courts. By his action he precipitated a lawsuit which put the onus on the appellant. The Judicial Commissioner considered that on a proper consideration of the evidence the probabilities favour the respondent in the matter of the kraals and I see no reason to dissent from that view. 5/ The extent — 5- The extent of the area probably used by the appellant in front of the forecourt remains uncertain.. The Local Court says that the public right of way is not being infringed. If the respondent as Chief of the area is of the opinion that there is an encroachment then he has judicial remedies availalbe to him which he may employ to protect his subjects. From this vantage point I cannot determine the extent of the area rightfully in the possession of the appellant and I shall not attempt to do so. In the result, therefore, I shall dismiss this appeal subject to the following amendment to the order made by the Judicial Commissioner.. The action of the appellant to recover the kraals is dismissed. The respondent shall rescind his order barring the appellant from ploughing before the forecourt, without prejudice to any other lawful action he may take to restrain the appellant from making use of this land. There shall be no order for costs in any Court on the grounds that the respondent acted wrongfully in resorting to an extra-judicial remedy in order to obtain possession of the kraals from the appellant. F. X. ROONEY JUDGE 8th July, 1980. For Appellant : Mr. Kolisang For Respondent : Mr. Sello.