Letsie v Maseru City Council (C of A (CIV) 12 of 2016) [2016] LSCA 38 (28 October 2016)

IN THE COURT OF APPEAL OF LESOTHO C OF A (CIV) 12/2016 CIV/APN/176/15 HELD AT MASERU In the matter between:- MOLIEHI LETSIE APPELLANT AND MASERU CITY COUNCIL 1ST RESPONDENT MINISTRY OF LOCAL GOVERNMENT 2ND RESPONDENT THE ATTORNEY GENERAL 3RD RESPONDENT CORAM : MAJARA, CJ LOUW, AJA DR MUSONDA, AJA Heard on 10th October 2016 Delivered on 28th October 2016 Jurisdiction of the High Court in mandamenten van spolie matters – whether High Court has unlimited jurisdiction – Subordinate order No.9 of 1988, Section 17 (b) 18 (1), as read with section 6 of the High Court Act No.6 of 1978 – conditions to be satisfied before High Court can assume jurisdictions – who bears the onus to comply with the jurisdictional requirement under Section 17 (b) of the Subordinate Court Order 1988. JUDGMENT Dr Musonda, AJA [1] This was an appeal against the learned Judge in the court a quo decline of jurisdiction in a mandamenteu van spolie which was brought to the High Court on urgent basis on 5th May 2015. [2] It is common cause that the Respondents went to the appellant’s house and seized a tent she was using to hold prayer services. [3] In the appellant’s founding affidavit she stated that the tent, the subject matter herein was erected inside her yard. She had enjoyed peaceful and undisturbed possession of it for five years. [4] Although she and her fellow congregants were holding prayers on Tuesdays from 5.00 pm to 7.45 pm and Sundays from 7.00 am to 11.00 am and 3.00 pm to 5.00 pm, this was not a registered church. There was no justification therefore for the 1st Respondent to uproot her tent. [5] She sought for an interdict, as by the time the matter is finalised she will have suffered grave hardships. Furthermore she and her fellow congregants were stranded since the despoiling of the tent by the Respondents. The appellant therefore stated that the first respondent or its agents had no right to uproot or demolish the tent without following correct legal procedures. [6[ She humbly requested the court a quo to restore the status quo ante omnia by ordering the 1st respondent or its agents to erect the tent the very same way it was before they demolished it. [7] The Respondent’s answering affidavit was sworn by Mantai Phaila, the Town Clerk and Chief Executive Officer of Maseru City Council, who averred that. The appellant had been allocated residential site at Lower Thetsane and has been issued a lease. Her lease document clearly stipulates that the site is for residential and not any other purpose. [8] Her residence is at the heart of Maseru City upper market. People who have acquired land on this part of the city have spent millions of maloti in their property development and are entitled to their peace of mind when at home. [9] The appellant had admitted having erected a tent on the residential site aforesaid and conducts therefrom church services. Her church is called “Jerusalema ea Poloko church of Repentance”. Sometimes service commences in the evening, carrying on into the night during week days and even on Sundays. The appellant is a minister of this Church. [10] The first Respondent being the regulatory body of the city, had received numerous complaints by the residents of Lower Thetsane, that they were unable to sleep and children were unable to study due to the noise emanating from the appellant’s Church. [11] The police in the company of first respondent officers seized the tent pursuant to the Criminal Procedure and Evidence Act. The tent will be tendered as an exhibit in appellant’s criminal prosecution. [12] The appellant then rushed to the High Court seeking an interdict in the interim and then spoliation as the substantive matter. The Respondent in the court a quo, who is also the respondent in this court filed notice to raise a point of law, that the High Court did not have jurisdiction. [13] The learned Judge in the court a quo held that his jurisdiction was limited by Section 6 of the High Court Act No.6 of 1978, which is couched in these terms: “6 No civil cause or actions within the jurisdiction of a Subordinate Court (which expression includes a local or central court) shall be instituted in or removed into the High Court save – (a) by a Judge of the High Court acting of his own motions; or (b) with the leave of a Judge upon application made to him in chambers, and after notice to the other party”. [14] The learned Judge appeared to have fortified his decline of jurisdiction by the wording of Section 18 (1) of the Subordinate Act No.9 of 1988. The Section reads: “18 (1) Subject to the limits prescribed by this order, the court may grant against persons and things for arrest tanquam suspectus de fuga, attachments and mandamenten Van Spolie.” [15] The learned Judge went on to say that, “the court did not for a moment understand the decision of the Court of Appeal case of Jobo v Lenono,1 as meaning 1 C of A (civ) 28/2010 that “willy nilly” the High Court is bound to take up “spoliation” cases even in the circumstances which place the spoliation cases squarely at the steps of the subordinate court. In my honest view to do so would indeed be to usurp the judicial power of the subordinate court. It would be totally illegal and ultra vires”. [16] The court a quo consequently struck the matter from the roll. [17] The appellant submitted that there were only two issues for determination by this court namely: (a) whether the application for spoliation falls squally within the jurisdiction of the magistrate’s courts or put differently the High Court does not have jurisdiction over spoliation. (b) whether the magistrates courts have unlimited jurisdiction over spoliations matters. [18] Advocate Kumalo in reply conceded that the value of the tent should have been provided by the appellant. [19] The upshot of the Respondent’s submissions was that the Subordinate Court had jurisdiction in Spoliation’s proceedings subject to the monetary limits set out in the Subordinate Court Act, by Sections 18 (1) and 17 (1). [20] The Law The appellant magnanimously conceded that the value of the tent should have been provided. In any event the basis of the jurisdiction in the Subordinate Court is the value. If the value is M10,000 and below the subordinate courts have jurisdiction. If the value is more than M10,000, the High Court have jurisdiction up to any value. [21] In Letsie v Ntsekhe,2 Scott JA said: “While it was true that the subordinate court had jurisdiction to adjudicate spoliation disputes in terms of Section 18 (1) of Act No.9 of 1988, such jurisdiction was limited to the value of the despoiled property as provided in Section 17 (1) (b) of that Act, that value of the despoiled if in excess of the values prescribed for the subordinate 2 (2009-2010) LAC 423 courts’ jurisdiction, entitles the High Court to assume jurisdiction. In terms of the High Court Act 1978, the High Court had unlimited discretion to assume jurisdiction in any matter” Where the legislature intends to monetarily limit jurisdiction, the legislature will say so i.e. in Section 17 (1) (b) and where they did not intend to do so they will say so as Section 17 (1) (c). [22] It was for the Appellant to provide the value of the tent. The Respondent would have borne that onus if they were challenging the jurisdiction of the subordinate court. As rightly conceded it was for the appellant to demonstrate that the value of the tent exceeded the jurisdiction provided by Section 17 (1) (b). It is a time honoured procedural concept that “he who asserts must prove”. Jurisdictional facts must be established at the time of filing not after. [23] The appellant did not observe the Rules enacted in Sections 17 (1) (b) and 18 (1) of the Subordinate Court Act No.9 of 1988. In the University of Lesotho and another vs Thabane3, Smalberger JA said. 3 2007-2008 LAC P477 “Court Rules are primarily designed to regulate proceedings in the courts and ensure the orderly, inexpensive and expiditions disposal of cases. Rules must, therefore be interpreted and applied in a spirit that facilitates the courts work. It is incumbent upon practitioners to know, understand and follow the Rules, most if not all of which are cast in mandatory terms. Failure to abide by Rules may result in serious consequences for litigants and practitioners alike, and practitioners ignore the Rules at their own peril.” [24] It is undoubted that where cases are brought in the wrong forum, it is not only litigants who incur avoidable costs, the judiciary deploys the meagre resources, both material and human on litigation in the wrong forum. The judiciary, “backlog mountain”, is enhanced, as time and resources are spent on ‘litigating on where to litigate’, which can be avoided if advocates were not indifferent to rules of procedure. [25] Conclusion: The value of the tent not having been available to the Judge in the court a quo and having not been available in this court, the court is unable to determine the issue of jurisdiction. Is the tent below the value prescribed in section 17 (1) (b)?, in which case the subordinate court has jurisdiction or if more than that value, then the High Court has jurisdiction. [26] It is critical that as a final court in the Kingdom, we push back against the notion that the “unlimited jurisdiction” contained Section 2 (1) (a) of the High Court Act, 1978, as read with Section 119 of the constitution, means “limitless”. The Zambian Supreme Court in Zambia National Holdings Limited and United National Independence Party (UNIP) v The Attorney General,4 when interpreting article 94, of the constitution, which is similarly worded like our Section 119 said: “Although Article 94 of the Constitution gives the High Court unlimited jurisdiction, that court is bound by all the laws which govern the exercise of jurisdiction of the High Court.” [27] “Judicial comity” entails that courts give “full faith and credit” to jurisdictions of both lower and higher courts and their decisions. In case of lower courts until their decisions are reversed or set aside they 4 (1994) ZR 22 should be given deference, which concept the learned Judge alluded to in his judgement. [27] ORDER 1. The appeal is upheld to the following extent: (a) The order of the court a quo upholding the Special plea on lack of jurisdiction is set aside; (b) The matter is remitted to the court a quo to hear evidence and to decide the issue of jurisdiction of the High Court. 2. No order as to the costs of appeal. _________________________ DR MUSONDA, AJA I agree MAJARA, CJ ___________________________ I agree LOUW, AJA ___________________________ For the Appellant : Adv. M. Kumalo For the 1st Respondent: Adv R. Setlojoane