Nyeoe and Another v Bank and Others (CIV/APN 314 of 87) [1990] LSCA 131 (15 August 1990)

IN THE HIGH COURT OF LESOTHO CIV/APN/314/87 In t he Application o f: THABANG NYEOE MOSIUOA 'MOTA 1st Applicant 2nd Applicant and LESOTHO BANK ALBERT S. MOHALE WILLIAM LEMENA (Deputy S h e r i f f) 1st Respondent 2nd Respondent 3rd Respondent J U D G M E N T Delivered by t he Hon. M r. Justice B. K. Molai on t he 15th day of A u g u s t, 1990. The applicants herein have obtained, against the Respondents, a rule nisi framed in t he following t e r m s: "1 (a) Directing that t he proposed sale by public auction of a certain site No. 41A Europa, situate in the Maseru Reserve in t he Maseru d i s- trict property of 2nd Respondent on 3rd October, 1967 by 3rd Respon- dent in execution of a default judgment of the High Court dated 3rd June, 1987 in favour of 1st Respondent and against 2nd Respondent is hereby stayed. 2. That t he requirements of the rules of court regarding applications are hereby d i s p e n s ed w i t h. 2/ 3. That 3. That Order 1(a) above operates with immediate effect as interim inter- dict and; 4. That the t h r ee Respondents are called upon to show cause if any on t he 16th day of October, 1987 why Order 1(a) should not be made final and the rule herein issued confirmed. 5. That the costs of t h is application be paid by any one or combination of the Respondents in the event only of their opposing the application. 6. That further and/or alternative relief may be granted to the Applicants in this m a t t e r ." Only the first Respondent has intimated intention to o p p o se confirmation of the rule. Although duly served with t he rule, second and third Respondents have not filed notice of intention to oppose its confirmation. It may, therefore, be safely assumed that they are prepared to abide by whatever decision the court will arrive at. Affidavits are duly filed by the parties. In as far as it is relevant it appears from t he affidavits that prior to 8th February, 1972 the second Respondent was the owner of a certain site Number 41A Old Europa, Maseru Urban Area in the district of Maseru. On 8th February, 1972 he registered the property in terms of the Deed Registry A c t, 1967 and obtained a Title Deed t h e r e f o r. 3/ Thereafter Thereafter, the second and the first Respondents apparently entered into a certain agreement. As an assurance of performance of his part of the agreement the second Respondent mortgaged site 41A in favour of the first Respondent under the Deed of Hypothecation No. 15039 dated 6th June, 1979. However, the second Respondent subsequently failed to perform his part of the agreement and the first Respondent sued him under CIV/T/172/87. The case was decided in favour of first Respondent on 3rd June, 1987. The decision declared, inter alia, that every right and interest in the land, buildings and other improvements erected on site 41A Europa were especially executable at the instance of the first Respondent in terms of the Deed of Hypothecation NO. 15039. Pursuant to the aforementioned decision in CIV/T/172/87 the first Respondent caused a writ of execution to be issued against the second Respondent. On the basis of the writ of execution the third Respondent proceeded to attach site 41A and publicise a notice of its sale in execution, which notice appeared in the issue of 20th August, 1987 of "Lesotho Today" newspaper. The applicants then instituted the present proceedings in which they moved the court for relief as mentioned in the rule nisi. In their founding and replying affidavits which were deposed to by the first applicant, the applicants averred, inter alia, that 4/ in 1984 in 1984 they and the second Respondent concluded Deeds of sale whereby the latter divided site 41A Europa into two portions which he sold to them (Applicants). The applicants duly paid the price money to the second Respondent who processed transfer of the two portions of site 41A to them, They contended, therefore, that the site belonged to them and no longer to the second Respondent. Accordingly the third Respondent could not lawfully attach and sell site 41A by public aution to satisfy the judgment in CIV/T/ 172/87 which the first Respondent had admittedly obtained against the second Respondent. It is to be borne in mind that following the registration of site 41A in terms of the Deeds Registry Act, 1967 on 8th February, 1972 the second Respondent mortgaged the site in favour of the first Respondent under the Deed of Hypothecation No. 15039 dated 6th December, 1979. That being so, it stands to reason that when in 1984 the second Respondent divided the site into the two portions which he sold to the applicants the site was already mortgaged in favour of the first Respondent. The second Respondent could not, in my opinion, have lawfully sold, to the applicants, the site which he had, in terms of the Deed of Hypothecation 15039, already mortgaged to the first Respondent. The second Respon- dent's purported sale of site 41A to the applicants was for that reason, null and void. 5/ The applicants - - The applicants further contended, however, that at the time of mortgaging it, site 41A was undeveloped and had no immovable property of any s o r t, save an old dilapidated chicken coop and some barbed w i re fencing around it. The purported mortgage w a s, t h e r e f o r e, in respect of land. As land in Lesotho belonged to the Basotho nation and not individuals, the second Respon- dent could not have lawfully mortgaged site 41A which was in law, not his property. The applicants contended t h a t, for t he same reason, t he judgment in CIV/T/172/87 which declared inter a l i a, that site 41A Europa was executable at t he instance of the first Respondent in terms of the Deed of Hypothecation 15039 was null and void and of no legal force. I am unable to agree with these c o n t e n t i o n s. Assuming for the safe of argument, t h at the applicants are correct in their averment that t he second Respondent could not have mortgaged site 41A because it was land belonging to Basotho nation and not him. They have, in their own w o r d s, averred t h at they had lawfully bought the same site from t he second Respondent. It seems to me t h a t, by t he same t o k e n, t he second Respondent could not have lawfully sold to t h em the site which belonged to the Basotho nation and not to him. As it has already been pointed out e a r l i e r, the first respondent obtained, against the second Respondent a judgment under C I V / T / 1 7 2 / 8 7. The judgment declared, inter a l i a, t h at every right and interest in the land, buildings and other improvements erected on site 41A Europe 6/ were w e re especially executable at t he instance of the first Respondent in terms of the Deed of Hypothecation No. 15039. That judgment has not been set aside by t he Court of Appeal and, in my o p i n i o n, still stands good. The applicants cannot, t h e r e f o r e, be heard to say t he judgment in CIV/T/172/87 is null and void and of no legal force. In t he r e s u l t, I come to t he conclusion that this application o u g ht not to succeed. The rule nisi is accordingly discharged with c o s t s. B. K. MOLAI JUDGE 15th August, 1990. For Applicants : M r. Addy For Respondents : Mr. Moiloa.