Tlanya v Tlanya (CIV/A 9 of 94) [1994] LSCA 173 (28 November 1994)

IN THE HIGH COURT OF LESOTHO CIV/A/9/94 In the matter between: MICHAEL CHOOCHO TLANYA APPELLANT AND 'MATOROPONG TLANYA DEFENDANT JUDGMENT Delivered by the Honourable Mr. Justice W. C. M. Maqutu, on the 28th day of November, 1994 This is an appeal from the judgment of the Magistrates' Court for the district of Leribe in CC.5/87. Appellant in the Court below was the Plaintiff and the Respondent was the Defendant. For convenience the parties will be referred to as Plaintiff and Defendant. Plaintiff in his summons was praying for the /... ejectment of Defendant with costs on the grounds that Defendant "is in unlawful occupation and use of Plaintiff's Land without Plaintiff's c o n s e n t, despite repeated demands to vacate the said property". Plaintiff's right over the Land rested on a registered lease which is title to the said Land. Plot No.25122/087 situated in the Leribe urban area. Defendant's Plea denied Plaintiff had a right to the Land in question. Consequently Defendant said: "Plaintiff alleged registration of the site is fraudulent in that the site subject matter of this claim is not plaintiff's by law but is the property of defendant by virtue of the defendant having inherited the same from her predecessor in title." At the trial Plaintiff gave evidence and handed a photostat copy of his registered lease marked Exhibit "A". This lease was registered under Number 25122-087 under the Deeds Registry Act of 1967 on the 11th November, 1986. /... After cross-examination by D e f e n d a n t, Plaintiff closed his case. Defendant applied for a b s o l u t i on from the instance. The Court granted D e f e n d a n t 's a p p l i c a t i on and accordingly entered judgment of absolution from the instance in favour of Defendant. Plaintiff has lodged an appeal to this Court. His main grounds of appeal are two: and they a r e: 1. That the learned M a g i s t r a te erred in finding that Appellant did not discharge the onus of proof despite the fact that Appellant filed the lease in terms of the Land Act. 1 9 7 9. 2. That the learned M a g i s t r a te erred in not taking the relevant Section of the Land A c t, 1979 into c o n s i d e r a t i on and instead based his finding on Section 12 of the Land A c t, 1979. The Land law of Lesotho is complex and often misleading. This is because it is Basotho custom to which /... has been appended foreign concepts. There is no individual ownership of Land. What is allocated is the right to use and occupy Land. A document of title to Land does not confer rights of ownership. The situation is compounded by the fact that the Land Act, 1979 is preceded by the Land Act of 1973 and the Land Procedure Act of 1967. These repealed Acts have conferred rights that the Land Act, 1979 recognises. Rights over Land are governed by customary law as modified by statutory law over the years. Section 92 of Lesotho Constitution of 1966 simply states:- "All Land in Lesotho is vested in the Basotho Nation..." Section 93 of the Lesotho Constitution of 1966 adds that the power to allocate Land and terminate rights over Land has been vested in the King. This power is exercised by the King through chiefs. This being the case, no person can own Land in Lesotho. People are allocated the rights to use and occupy Land only. Consequently Section 2(2)of the Deeds Registry Act of 1967 states:- /... "for the avoidance of doubt it is hereby declared that nothing in this Act shall be construed as conferring upon any person the ownership in or over Land." This is still the legal position although Sections 3 and 4 of the Land Act, 1979 were enacted while the Lesotho Constitution of 1966 was suspended. These put ownership in the Basotho Nation and added that the State represents the nation. Section 4 of the Land Act, 1979 recognises that the power to grant titles and other rights over Land vest in the King as head of State in trust for the Nation. The concept of the State as representative of the Basotho nation was first articulated in the Land Act, 1979. The Lesotho Constitution of 1993 seems to have left this position undisturbed. The Lesotho Constitution of 1993 appears not to have changed the position of the law as it stood under the 1979 Land Act. The Land remains vested in the Basotho people, the King administers Land in trust for the Basotho people, but the details are not spelt out. Section 108(2) of the Constitution of 1993 merely states this power shall be "...exercised in accordance with the Constitution and any other law." According to Section 4 of the Land Act, 1979 /.... this power— "...is vested in the King, as head of State, in trust for the Basotho Nation and shall be exercised as provided under this Act." On the question of ownership of Land Section 3(1) of the Land Act, 1979 provides: "Land in Lesotho is vested absolutely and irrevocably in the Basotho Nation and is held by the State, as representative of the Nation." Section 42 of the Land Act, 1979 recognises the confusion in the allocation of Land that has been building up over the years. It solves this problem by allowing the person who has developed the site and made improvements to prevail when a dispute as to title arises. The granting of a lease even in terms of the 1979 Land Act does not of itself guarantee that the title is unassailable. Section 15 of the Deeds Registry Act of 1967 forced all holders of Land in urban areas to register them because otherwise they would revert to the Basotho people, It follows therefore the site in dispute being in an urban /... area ought to have been registered. Otherwise it would not be available for Plaintiff to claim unless it was being freshly allocated. Plaintiff says this Land was already registered by the late Masekhoana Tlanya. In that event we would expect this Land to have been lawfully repossessed by the Land Allocating Authority. If this Land had been registered in terms of the Deeds Registry Act, 1967 then in terms of Section 28 of the Land Act, 1979: "Titles to Land in urban areas...lawfully held by any person on the date of commencement of this Act shall be deemed to be converted into leases." It follows therefore that (unless the contrary is stated) the site which is the subject of this dispute must have been held by a title that was ex lege converted into a lease when the Land Act of 1979 came into force. The basis of Plaintiff's claim is revealed in his own words in cross-examination: Question: "When did you come by the subject matter of the /... dispute?" Answer : "Around 1985." Question: "How did it become yours?" Answer : "I applied for a lease." Question: "Is it an old site?" Answer : "Correct it is, and before I owned it it was already developed." If indeed it was a developed site, some one must have been allocated that site. Plaintiff then reveals that he in fact claims the site as his because he is the one entitled to it as his late grandfather's heir. This site ought to have been in Plaintiff's father's possession, but his late grandfather put Masekhoana Tlanya who seems to have been in possession until she died. Plaintiff's father and Plaintiff's grandfather never claimed this site before the courts in their lifetime. It is clear therefore that the Plaintiff's claim is not based on the /... lease but rather on inheritance, although Plaintiff's grandfather did nothing when someone else registered this site. The matter becomes even clearer as cross-examination continues; Question : "Defendant will say the site was Pitso's who was Masekhoane's husband." Answer : It was registered by Masekhoane in her name, in her names long after her husband's death." Question : "Defendant is then heir to Masekhoane." Answer : Yes in Masekhoane's rights it is in order." Question : On Masekhoane's death she occupied the place as her heir." Answer : "Correct." /... P l a i n t i ff then revealed that M a s e k h o a ne died in 1971 w h en P l a i n t i f f 's g r a n d f a t h e r, M o l i s a na from w h om Plaintiff claims to have inherited the s i te died in 1 9 7 3. That being the case M a s e k h o a ne from whom D e f e n d a nt claims to have inherited the site r e g i s t e r ed the site during the lifetime of M o l i s a na w i t h o ut any o b j e c t i on from M o l i s a na through whom Plaintiff c l a i ms t i t l e. D e f e n d a nt is still presently c o l l e c t i ng rents from the b u i l d i n gs on the disputed s i t e. It s e e ms to me that the M a g i s t r a te was left with no a l t e r n a t i ve but to d i s m i ss P l a i n t i f f 's c l a im when c r o s s- e x a m i n a t i on r e v e a l ed the f o l l o w i n g :- Q u e s t i on : "Defendant r e c e i v ed rent s i n ce the place was hers she was in o c c u p a t i o n? Answer Q u e s t i on A n s w er : : : " C o r r e c t ." "She has never been d e p r i v ed in law of the said p l a c e ?" "She has never b e en d e p r i v ed of the said site in law l a w f u l l y ." Once it was conceded that by P l a i n t i ff h i m s e lf that Defendant was in lawful o c c u p a t i on there w as no point in /... proceeding further with the matter. Plaintiff himself had put on record (through his answers) evidence that showed Defendant was in lawful occupation of the site in question. Because the basis of Plaintiff's claim was that Defendant was in unlawful occupation of the site, but had proved the opposite, his claim had to be dismissed without calling upon Defendant to answer. This is what happened when Defendant applied for absolution from the instance. In terms of Section 7(1) of the Deeds Registry Act, 1967, if Plaintiff felt Defendant's predecessor had wrongfully registered the site in her name, Plaintiff was obliged to have the existing registered title to immoveable property cancelled by the High Court. See Mapakiso Ramafole v 'Mamako Ramafole and Others 1978 LLR 261. It was wrong to apply for a lease while a registered certificate of title existed which ex lege had been converted into a lease in terms of Section 28(1) of the Land Act of 1979. A Land that already has a certificate of title (in favour of someone else) is not available for lease or licence in favour of Plaintiff in terms of Section 21 of the Land Act. 1979. Consequently fart III of the Land Act, 1979 cannot apply to it. Nevertheless /... should it be necessary for a lease to be issued in respect of the converted title, the Commissioner of Lands is obliged to publish the fact that a lease is sought and invite adverse claim to protect himself in case there are mistakes and to see to it the registration of titles to Land is correct. The reason being that there is a history of mistakes and conflicts in the issuing of certificates of allocations and registered certificates of title. The recognition of these problems does not mean the existing certificates of title can just be ignored as Plaintiff seems to have done. People who apply for leases must do so in good faith. Registered leases that are in effect certificates of title will often have to be cancelled just as the old Certificates of Title to Occupy Land and Certificates of registered Title to Immoveable Property used to be. See the cases Ntai Mphofe v Joseph Ranthimo and Another C of A (CIV) No.22 of 1988 (Unreported) and Seboka Tleletlele and Another v Ntsokoane S. Mateka and Others CIV/APN/386/91 (unreported). That does not mean while they have not been cancelled they have to prevail regardless of the special circumstances of the case. /... Where there are two competing titles, a holder of the competing title is not in unlawful occupation until the illegality of the other title is proved. The reconciliation of the Land Act, 1979 with rights that flow from repealed legislation which the Land Act recognises is the problem that this Court has to wrestle with. This problem is compounded by the fact that there is a tendency to misuse the powers under the Land Act, 1979 and to ignore the equitable principles on which it is founded. It seems to me the Magistrate wisely did not close the door to Plaintiff whose real claim was based on succession rather than the lease. I find nothing wrong with the judgment of absolution from the instance. I do not agree with some of the legal grounds on which the Magistrate granted Defendant absolution from the instance. I nevertheless agree with the factual finding that Plaintiff contradicted himself a great deal under oath. The fact that Defendant had been left to collect rent from the property on the disputed site seems (as the magistrate has found) to disclose some dishonesty on the part of Plaintiff in registering the lease. /... For these reasons and those I have stated above the Magistrate is correct in what she said in her judgment, that is: "Plaintiff has failed to discharge the onus of proof that rests on him and to shift it to the Defendant. Accordingly, therefore, absolution from the instance is granted in favour of the Defendant with costs..." 1 therefore dismiss this appeal with costs. W. C. M. MAQUTU JUDGE For the Appellant For the Respondent : Mr. G. N. Mofolo : Mr. J. P. L. Snyman