Tsekoa v R (CRI/A 34 of 93) [1998] LSCA 34 (8 April 1998)

1 CRI\A\34\93 IN T HE HIGH C O U RT OF L E S O T HO In the Appeal of: M O T S E KI TSEKOA Appellant vs REX JUDGMENT Respondent Delivered by the Hon Mr Justice M L Lehohla on the 8th day of April. 1998 On 8th April, 1998 this Court dismissed the above appeal and stated that reasons would be stated later. Here do they follow below. The appellant appeared as accused 3 before the subordinate court Leribe with three others in connection with contravening provisions of Section 87(1) of the Land Act No. 17 of 1979 it being alleged that: "During the month of February 1986 the accused did wrongfully, unlawfully and intentionally occupy or cause to be occupied, aid, abet, the occupation of two pieces of land without proper authority". The accused pleaded not guilty to the charge. At the end of the day accused 3 w ho is the present appellant was convicted of occupying the land without authority while accused 1 w as convicted of causing the appellant to occupy land without authority. They were sentenced to pay a fine of M200-00 or serve a prison term of 2 months each. The appellant was given benefit of judicial counsel to apply within six months for the site in question to the Chieftainess 'Matikoe with the rider that should the application be turned d o wn he should vacate that site. Apparently he paid the fine. It m ay well be also that his application for occupation of the site was turned d o wn in which event the rider to the magistrate's sentence that the appellant should vacate should have been in place. The other co-accused were acquitted and discharged. Section 87(1) of the Land Act N o. 17 of 1979 provides that, "A person w ho occupies land unlawfully or a person w ho causes, aids or abets another person to occupy land without proper authority shall be guilty of an offence and liable to a fine of M5000-00 or five years' imprisonment". Subsection (2) says : "Where a court has convicted a person under subsection (1), the court may, (a) order the person to vacate the land forthwith or within a specified period of time; (b) order the person or any other authority to demolish and remove within a specified period of time any structure or building work thereon." It would seem then that the fate of the appellant fell within the precincts of section 87(1) read with subsection 2(a). In the notice of appeal drawn on behalf of the appellant by his attorneys S. N. Peete & Company it is stated that: 1. 2. The learned Magistrate was wrong in trying the criminal matter after the Central Court has gone into the merits of the case in respect of the allocation of the site. The accused was being tried twice. W h en the accused Tsekoa n ow appellant acquired the Form C over the said site, he did not know and could not have known that accused 1 (SEEPAPITSO) did not have any authority to allocate sites over the area or that there was a current boundary dispute over the same. Regard being had to the judgment of Tšifalimali Central Court CR 8\86, the Learned Magistrate was wrong in deciding that the appellant Tsekoa must surely have been aware that "his occupation of that land was contrary to law". The appellant held a Form C which was ex-facie valid and lawfully issued. 3. The explanation of the appellant as to h ow he came to be allocated the site and as to his subsequent occupation clearly showed that he w as an innocent occupier w ho w as being used as a cat's p aw by disputing chiefs. He could have not k n o wn that the allocation and occupation were per se unlawful in terms of the charge as preferred under the provisions of section 87 of the 1979 Land Act. 4. The sentence and orders m a de by the court are consequently improper and ought to be set aside. With regard to the appellant's first ground of appeal the view I take is that the Act does not authorise a Central Court to try a case of this nature. Thus if the matter was tried in an inappropriate court there cannot arise a question that the party involved has been tried twice to his prejudice. The point should be rendered even more clear by example that if a subordinate court were to try a person for murder or High Treason and subsequently the same person is tried by the High Court on the same charge, in my view it cannot arise as valid objection to the hearing before the High Court that this amounts to being tried twice because the first trial in my view was but a nullity ab initio. W h en Mr Nchela tried to raise this ground on appeal in this Court he w as referred to the fact that the late Mr C D. Molapo an attorney of vast experience w ho represented the appellant before the Magistrate did not raise an objection to the proceeding taking place before the magistrate on this ground. Suffice it to say it seemed to me that the insubstantiality and emptiness of the ground became apparent to Mr Nchela. Thus he wisely abandoned his pursuit of it. In any event in his heads Mr Semoko for the C r o wn correctly stated that despite the appellant's grievance that he was tried twice, what appears on record is that when the matter went through the lower courts the charge was not even specified. The order m a de was that the matter should start de novo on a different charge. The second ground of appeal relates to the appellant's acquisition of the Form "C". The appellant contends that ex facie this Form " C" it is valid. Further that if it appeared valid it could easily pass for one that is in fact valid and therefore one that was lawfully issued. On the basis of these contentions the appellant wishes to persuade the Court that the learned Magistrate must have been wrong in deciding that the appellant must have been aware that his occupation of the land was contrary to law. If this argument m ay outwardly seem to be persuasive it has however been dealt a fatal blow by the evidence appearing on record to the effect that P W1 Moreneng Sekali the Headman indicates at pages one to two that the appellant was ordered to cease building on the site but the appellant ignored that order. It is on this ground that the appellant's bona fides in advancing the persuasive arguments referred to above, seem questionable in view of the fact that his act was questioned by no less an authority than a chief of the area in which the place in question falls. In my view the appellant's pretence that he couldn't have been aware that there w as controversy surrounding that site to the extent that his title w as questioned by P W1 the Headman himself cannot avail. Needless to say the matter was reported to the police following on the appellant's insistent and unlawful occupation of the land. It is necessary however to examine the validity of the Form " C" upon which the appellant relies and on that basis claims that it bestows upon him title to the land in question. In this regard it would be fruitful to consider whether the person w ho issued this Form " C" had authority to do so. At page 12 the Principal Chief of Leribe, (Chief Bolokoe Motšoene) denies that he instructed accused 1 to allocate land to the appellant for the simple reason that the area in question fell under P W3 Chieftainess 'Matikoe. P W3 herself indicated that she is a gazetted chief and has her o wn legitimate Allocation Committee of which accused 1 Seepapitso Motšoene is not a member. The appellant's cross-examination of P W3 merely heightened his arrogance towards P W3 and the indifference with which he treated her orders to stop building in the land in question. Evidence shows the appellant decided to stop the building operations alright but chose to erect another building in the nearby place still within PW3's area without PW3's authority which she exercises lawfully through her Land Allocation Committee. At page 52 of the record reference is m a de to a letter which emanated from the offices of the Ministry of the Interior dated 13-02-1985 giving Chieftainess 'Matikoe authority to look after preserved pastures North-East of the reserve. This is the place which the appellant seems to have encroached on. Clearly in so doing he was violating the authority that the Chieftainess had over the area. The second letter issued on 2-10-85 in preparation for the Independence Celebrations due on 4-10-85 states that Government would appreciate if the Chieftainess could use her good offices to fill in dongas at her place at Lipeketheng as she had done before for the benefit and improvement of the place. Thus because the Chieftainess had jurisdiction at Lipeketheng it cannot avail the appellant to pretend that he was allocated a site at Lipeketheng w h en he admitted that he had no Form " C" for that place and instead the invalid one he relied on for his false claim referred to Phorohloaneng ha Lejaha. See page 44 of the record. At page 64 the record shows that P W6 'Mahato w ho was once a m e m b er of the Land Allocation Committee for Lipeketheng testifying for the defence and presumably telling the truth dealt the appellant a mortal blow by indicating that all sites lawfully allocated at Lipeketheng appear in a register kept by the Chieftainess. The appellant's site does not appear in that register. It stands to reason therefore that if the appellant's site doesn't appear in that register it prima facie was not lawfully allocated. I view with favour therefore the Crown's submissions that accused 1 Seepapitso Motšoene had no authority to allocate land in the area in question and issue a Form " C" in respect thereof. Overwhelming evidence shows that Chieftainess 'Matikoe had jurisdiction in the area contrary to the appellant's pretended contention. The Form " C" w as vitally defective and w as purposely intended to deceive because it referred to Phorohloaneng Ha Lejaha a different place from Lipeketheng where the appellant purported to lay claim to title. The appellant was a mala fide occupier because he continued to develop the site notwithstanding the order to stop. The order to stop emanated from lawful authority and there is ample evidence that the appellant w as fully aware of this notwithstanding his contentions to the contrary; such contentions being based on nothing but self- deception. No legitimate excuse can avail the appellant for proceeding to develop a site whose contentious allocation stemmed from a defective Form " C ". The wording of the statute i.e. 87(1) of 1979 Land Act to the extent that it prohibits abetting, aiding and acquisition of land without proper authority to my mind seems purposefully to be intended by the Legislature to exclude m e ns rea. But strange to perceive it is the same mens rea that the appellant wishes to be considered as a basis upon which the appeal should succeed. H ow can that be so when the statute deliberately relieved the crown of the duty to prove m e ns rea by staring that whoever contravenes that statute shall be guilty of an offence? H ad the legislature wanted intention to be proved then it would have had no difficulty in stating that whoever aids, abets unlawful occupation of land intentionally shall be guilty of an offence. In this case such a requirement is non-existent. I see however that the indictment refers to the fact that the accused did intentionally occupy land without proper authority. In view of the nature of the statute that forms the basis of this charge I am of the opinion that inclusion of the phrase "intentonally occupy land" is redundant as intention need not be proved as shown above. In like manner, in view of the fact that Chieftainess 'Matikoe had jurisdiction to allocate land in the area in question it doesn't seem to be a defence to say the appellant didn't k n ow that. The fact that the Chieftainess had her o wn Land Allocation Committee of which accused 1 was not a m e m b er negates the allocation by accused 1 and the corresponding acquisition of that land by accused 3 the appellant. Interestingly accused 1 has decided at a late stage in the record to say he never allocated the appellant (accused 3) the land in question. The appellant insists he did! To the extent that even under cross-examination the appellant conceded that his so-called Form " C" referred to a different site from the one he occupied, to my mind he cannot therefore be an innocent occupier. The C r o wn has succeeded in establishing beyond reasonable doubt that Chieftainess 'Matikoe had lawful authority over the area in question; further that the appellant wrongfully and unlawfully occupied land falling within the area of that Chieftainess; and finally that the appellant cannot be heard to say the defence he is raising in the circumstances is one of innocent occupier. For the above reasons the appeal is dismissed. JUDGE 8th April, 1998 For Appellant: Mr Nchela For Respondent: Mr Semoko