Malefane v Ramajoana (C of A (CIV) 12 of 2018) [2019] LSCA 4 (31 May 2019)

IN THE COURT OF APPEAL OF LESOTHO In the matter between: C OF A (CIV) 12/2018 PIUS LESETELI MALEFANE APPELLANT And MADODA RAMAJOANA MOTHEJOA METSING REGISTRAR OF DEEDS 1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT LAND ADMINISTRATION AUTHORITY 4TH RESPONDENT ATTORNEY GENERAL 5TH RESPONDENT CORAM: DR K. E. MOSITO P DR P. MUSONDA AJA M. CHINHENGO AJA HEARD: 14 MAY 2019 DELIVERED: 31 MAY 2019 SUMMARY Land – Sale and transfer of rights in land by wife unbeknown to husband – The purported power of attorney given by the husband fraudulent and illegal – Subsequent and transfer invalid. Appeal dismissed with costs – judgment of the Court a quo confirmed. JUDGMENT DR MOSITO P [1] This matter comes before us as an appeal against the judgment of the Land Court (Sakoane J) In LC/APN/09/2018 that Pius Leseteli Malefane brought an application against five respondents. The Respondents were Madoda Ramajoana, Mothejoa Metsing, Registrar of Deeds, Land Administration Authority and the Attorney General respectively. [2] The Applicant sought an order in the following terms: 1. 2. 3. 4. Deed of Transfer registered under N0.24213 involving plot No.13281-403, Moshoeshoe II, Maseru held by 1st Respondent herein be cancelled and that in terms of section 7 of the Deeds Registry Act 1967, 3rd and 4th respondents herein cause such cancellation. An order declaring Applicant as the owner of property No.13281- 403, Moshoeshoe II, Maseru. An order declaring as null and void, the transaction of sale of plot No.13281-403 between 1st and 2nd respondents and any subsequent transfer therefor. An order declaring the General/Special Power of Attorney purported to have been given to 1st respondent by wife of applicant as nullity. 5. 6. 7. 8. An order directing 1st Respondent to vacate plot No.13281-403 belonging to Applicant by virtue of his lease and Deed of Transfer registered in the Deeds Registry office on 2nd October 1990. An order restraining the 1st Respondent or any person acting under the auspices of Deed Transfer registered under No.24213 registered in the Deeds Registry office on the 18th May 1994 from interfering with Applicant’s rights of possession and use of the said plot No.13281-403, Moshoeshoe II in the district of Maseru. Costs of suit. Further and/or alternative relief. [3] The application was opposed. The 1st Respondent’s defence is that the transfer of the site is in order because it is underpinned by a power of attorney the applicant gave to his wife. The matter came before the High Court and the learned judge delivered his judgment on 7 March 2018. His order is as follows: “1. 2. 3. 4. 5. The General/Special Power of Attorney given to the 1st respondent by the wife of the applicant is declared a nullity. The Deed of Transfer registered under No.24213 in respect of plot No.13281-403, Moshoeshoe II, Maseru held by the 1st respondent is cancelled. The 3rd and 4th respondents are directed to cancel it. The subsequent transfer of Plot No.13281-403 by the 1st respondent to the 2nd respondent is declared null and void. The 3rd and 4th respondents are directed to cause its cancellation. The 1st and 2nd respondents are directed to vacate Plot No.13281-403 and are also restrained from interfering with the applicant’s rights and use of the said plot. The respondents are to pay the costs of suit.” [4] It is against the above order by the court a quo that the appellant has brought this appeal before us. Before proceeding with the cracks of the appeal on the basis of the grounds thereof, I propose to first, provide a brief conspectus of the facts. THE FACTS [5] The facts are few and pleasantly uncomplicated. As far as relevant to the present appeal, the facts of this matter reveal that the 1st Respondent is married. He and his wife got estranged between 1990 and 1996 and the respondent went to live at Aliwal North in South Africa. It was during this time that his wife fell on hard times financially in 1994 and decided to sell and transfer the plot subject of dispute to the appellant. At the time of concluding the sale agreement, the lease document was in the possession of the 1st respondent. [6] The appellant assured the wife of the 1st respondent that the absence of the lease document was not an insurmountable problem and undertook to drive the processing of the acquisition of the lease and transfer of the plot. The appellant brought papers that had been processed for the 1st respondent’s wife’s signature. Thereafter a lease was issued and transfer effected. [7] The 1st respondent’s wife testified that she signed more than one document that the appellant had brought to her but she was not aware that those documents had been prepared by attorneys. She said that she signed the said papers because of a power of attorney. The 1st respondent told the court a quo that he had not authorised his wife to sell the plot to the appellant. He also said that he never appeared before attorney Ramafole to transfer the plot nor authorised his wife to sign a power of attorney. He informed the court further that his date of birth is 15 March 1958 and not January 1965. He further informed the court a quo that he did not know the appellant and he saw him for the first time in court. He informed the court that he logged a complaint about the transfer of the plot with the Commissioner of Lands in November 2008. He was invited to a meeting with the Registrar of Deeds where he was informed about the transfer of the plot. His reaction was that the transfer was unlawful. [8] The 1st Respondent further informed the court that the signature that appeared on the purported power of attorney was not his. He was adamant that he never gave a power of attorney to his wife. [9] As for the appellant, his evidence was, before the 1st respondent instituted the proceedings, he did not know the 1st respondent. The appellant’s evidence was that he did not remember the 1st respondent’s wife ever collecting original lease and other documents from her husbands. He then suggested to the 1st respondent’s wife that she and him should hire lawyers to process the transfer. However, the 1st respondent’s wife preferred Mr. Khauoe. Upon arrival at Khauoe’s attorneys, their matter was allocated to Advocate Ramafole. He in effect denied any knowledge whether the1st respondent’s wife ever secured a power of attorney from her husband or not. He told the court that the 1st respondent’s wife acted under instructions of the 1st respondent and not his. He contended that 1st respondent had misled the officials of the Land Administration Authority (LAA) by informing them that he her husband did not authorise the transfer. [10] I must mention that a document was filed of record which purported to be a general power of attorney and was marked exhibit “C”. The document is reproduced herein below: “I, MADODA RAMAJOANA do hereby grant MRS MANEO RAMAJOANA General Power of Attorney in respect of my land as held under Lease No.113281-403 (Maseru) to deal with, develop, encumber with mortgage, transfer and to do whatever she may consider to be necessary and/or essential and whatever may be incidental to the above. DATED 20 THIS DAY OF JANUARY, 1994. ____________ (signed) MADODA RAMAJOANA WITNESS: 1…………………… 2…………………..” [11] The Appellant has now approached this Court on appeal on a number of grounds. First, he complains that, the learned judge erred and misdirected himself in holding that the signature on the deed of transfer in favour of the appellant was not that of the first respondent in as much as the evidence established, on a balance of probabilities, that the documents were signed by the first respondent. He complains that there was no evidence that the documents were signed by the first respondent’s wife with the purpose of facilitating transfer in favour of the appellant. He therefore charges that, there was no evidence that the first respondent’s wife forged the signature of her husband. He further contends that there was no evidence that the first respondent and his wife did not communicate; the probabilities are high that the first respondent signed the power of attorney authorizing transfer of his rights to the appellant as well as the deed of transfer. [12] Second, the appellant complains that, the learned judge in court a quo erred and misdirected himself in holding that: the transfer by the first respondent of his rights to and in immovable property held under lease number 13281-403, Moshoeshoe II Maseru Urban Area, was fraudulent in as much as there is no evidence that the appellant acquired his rights as a result of fraudulent conduct on his part or on the part of any person. The names of the wife ought to appear in the deed of transfer simply because she had been granted a power by the first respondent; the fact that the ministerial consent, a document issued by the land authorities, authorizing the transfer of rights between the appellant and the first respondent, shows the purchase price to be naught when the evidence shows the site was purchased for a consideration of M15,000.00, this alone indicated that the real value “of the disposition was misstated so as to avoid payment of the requisite transfer duty”. He charges that, the fact that: the power of attorney was granted in favour of the first respondent’s wife yet she ultimately did not sign the deed of transfer; the ministerial consent showed consideration for the transaction as naught; would not and should not have been interpreted by the court a quo to imply that the transaction was tainted with fraud and therefore was indicative that the first respondent did not consent to the disputed transaction. [13] Third, it is the appellant’s contention that, had the learned judge brought his mind to bear on the pleadings and the evidence tendered of record he should and must have held that: the first respondent must have consented to the transfer and actually authorized the transaction between him and the appellant given that: the first respondent’s wife was entitled to apply for ministerial consent to effect the transfer of rights from the first respondent to the appellant; in all probability the deed was signed and/or authorized by the first respondent; the date of birth of the first respondent was misstated by mistake in the deed of transfer. Lastly, the appellant complains that, in all the circumstances and in view of the evidence tendered of record the learned judge ought to have dismissed the first respondent’s claim with costs to the appellant. THE ISSUE [14] In light of the grounds of appeal above, it is clear to me that the dispositive issue in this appeal is the validity of the general power of attorney and the legal consequences thereof. THE LAW [15] In order to determine the above issue, it is apposite at this juncture to first consider what the law says in this regard. Section 13(1) of the Deed Registry Act1 provides as follows: (1) Subject to the provisions of sub-sections (2), (3) and (4) “13. hereof, no deed of transfer… mentioned in this Act shall be attested, executed or registered by the registrar unless it has been prepared by a legal practitioner, notary public or conveyancer admitted to practise within Lesotho. Such legal practitioner, notary public or conveyancer may recover the fees and charges to which he may be entitled in accordance with any regulation made under section nine.” [16] Section 17(1) of the Act provides for form and manner of execution of deeds of transfer. It provides as follows: (1) “17. Deeds of transfer shall be prepared in the forms prescribed by law or by regulation and, save as in this Act or any other law provided or as ordered by the court in respect of deeds of transfer executed by the registrar, shall be executed in the presence of the registrar by the owner of the immovable property described therein or by a legal practitioner, notary or conveyancer authorised by power of attorney, to act on behalf of the owner, and shall be attested by the registrar.” [17] Section 52 of the Act provides for attestation of powers of attorney in Lesotho. It provides that: “52. Any power of attorney executed within Lesotho shall, if it purports to give authority to pass, cede, amend or cancel a deed capable of being registered or to perform any act proper to be performed in a deeds registry, be attested either by two witnesses above the age of fourteen years, competent to give evidence in any court of law in Lesotho, or by a magistrate, [District Administrator], Justice of Peace, Commissioner of Oaths or a notary public duly described as such: Provided that no person shall be competent to attest any power of attorney under which he is appointed as an agent or derives any benefit.” 1 Deed Registry Act 1967. [18] Preliminarily I should say that statutory requirements are often categorised as "peremptory" or "directory". These are well-known, concise, and convenient labels to use for the purpose of differentiating between the two categories. The earlier clear-cut distinction between them (the former requiring exact compliance and the latter merely substantial compliance) now seems to have become somewhat blurred. It is clear from the aforementioned sections that the word “shall” has been used. If the sections are only intended to be directory, then signing the document, its legal effect will be to bind the signor thereof even though there may be some irregularity in the manner in which it was executed. A long series of cases both here in Lesotho, South Africa and in England have evolved certain guiding principles. Without pretending to make an exhaustive Wessels, J. A. reminds us in Sutter v Scheepers2 us of a list of criteria or tests, that courts have suggested in determining whether provisions of a statute are peremptory or merely directory where the word “shall” has been used. [19] The cardinal rule in determining whether a statutory provision is peremptory or directory is to ascertain the intention of the Legislature.3 2 Sutter v Scheepers 1932 AD 165 at pp.173-174. 3 see Messenger of the Magistrate's Court, Durban v Pillay, 1952 (3) SA at p. 682; Feinberg v Pietermaritzburg Liquor Licensing Board, 1953 (4) SA at p. 419. [20] The Parliament of Lesotho has however, intervened by means of legislation to say that, where in an Act of Parliament, the word “shall” is used, the provision must be construed as mandatory or peremptory.4 However, care must in my opinion, be exercised not to infer merely from the use of such labels what degree of compliance is necessary and what the consequences are of non or defective compliance. These must ultimately depend upon the proper construction of the statutory provision in question, or, in other words, upon the intention of the lawgiver as ascertained from the language, scope, and purpose of the enactment as a whole. I now turn to consider the merits of this appeal. EVALUATION OF THE APPEAL [21] The first complaint by the appellant is that, the learned judge erred in holding that the signature on the deed of transfer in favour of the appellant was not that of the first respondent in as much as the evidence established, on a balance of probabilities, that the documents were signed by the first respondent. He complains that there was no evidence that the documents were signed by the first respondent’s wife with the purpose of facilitating transfer in favour of the appellant. He further charges that, there was no evidence that the first respondent’s wife forged the signature of her husband. He complains that there was no evidence that the first respondent and his wife did not communicate. He goes further to say that, the probabilities are high that the first respondent signed 4 Section 14 of the Interpretation Act 1977. the power of attorney authorizing transfer of his rights to the appellant as well as the deed of transfer. [22] The problem with this ground of appeal is that it ignores the fact that, on the papers as pleaded in paragraph 5.11 of the originating application, the first respondent alleges that his signature was forged. In his answer to paragraph 5.11 of the originating application, the appellant denies that the signature was forged and yet, the first respondent’s wife says the husband was never involved in the processing of the deed of transfer. She says it was the appellant that processed the transfer papers. It cannot be validly contended that the signature that is denied by the owner cannot be said to have been forged where there is no evidence to the contrary. [23] The second ground is that, the learned judge a quo erred in holding that: the transfer by the first respondent of his rights to and in immovable property held under lease number 13281-403, was fraudulent in as much as there is no evidence that the appellant acquired his rights as a result of fraudulent conduct on his part or on the part of any person. There is no substance in this ground as well. There evidence adduced before the court a quo clearly reveals that the first respondent was not involved in the purported transfer of his rights in the plot subject of dispute. [24] As clearly appears from section 17(1) of the Deeds Registry Act, deeds of transfer must be executed in the presence of the registrar by the owner of the immovable property described therein or by a legal practitioner, notary or conveyancer authorised by power of attorney, to act on behalf of the owner, and shall be attested by the registrar. [25] In the present case, it is the first respondent’s case that he never appeared before Advocate Ramafole authorising her by power of attorney, to act on his behalf, and shall be attested by the registrar. It is also clear that, despite the fact that advocate Ramafole’s name had been listed as one of the names of the witnesses of the appellant, who were to be called in terms of the Rules of the Court a quo, she was called. As required by section 17(1) of the Act, deeds of transfer must ‘ be executed in the presence of the registrar by the owner of the immovable property described therein or by a legal practitioner… authorised by power of attorney.’ As correctly submitted by advocate Lephuthing, the purported power of attorney filed of record, purported to ‘grant MRS MANEO RAMAJOANA General Power of Attorney in respect of my land as held under Lease No.113281-403 (Maseru) to deal with, develop, encumber with mortgage, transfer and to do whatever she may consider to be necessary and/or essential and whatever may be incidental to the above.’ That could not be done as MRS MANEO RAMAJOANA could not, according to section 17(1) of the Act, be granted the General Power of Attorney in respect of the plot as held under Lease No.113281-403 to transfer it to the appellant. The purported power of attorney was clearly invalid regard being had to the terms of the said section. [26] The third ground of appeal was that, had the learned judge brought his mind to bear on the pleadings and the evidence tendered of record he should and must have held that: the first respondent must have consented to the transfer and actually authorized the transaction between him and the appellant given that: the first respondent’s wife was entitled to apply for ministerial consent to effect the transfer of rights from the first respondent to the appellant; in all probability the deed was signed and/or authorized by the first respondent; the date of birth of the first respondent was misstated by mistake in the deed of transfer. As I pointed out above, there was overwhelming evidence that the first respondent had not authorised the sale and transfer transactions. There was therefore no authorisation by him. [27] The Last ground of appeal is that, in all the circumstances and in view of the evidence tendered of record the learned judge ought to have dismissed the first respondent’s claim with costs to the appellant. As indicated above, the invalid power of attorney could have not authorised the sale and transfer transactions in law. [28] For these reasons I have come to the conclusion that the appeal should be dismissed and the order of the Court a quo confirmed. [29] The following order is made: (a) The appeal is dismissed with costs. (b) The order of the Court a quo is confirmed. ____________________________________ DR K E MOSITO PRESIDENT OF THE COURT OF APPEAL I agree: _________________________________ DR P MUSONDA ACTING JUSTICE OF APPEAL I agree: __________________________________ M CHINHENGO ACTING JUSTICE OF APPEAL For the Appellant: Mr Q. Letsika For the Respondents: Adv C. J. Lephuthing