Maitin v Barigye and Another (C of A (CIV) 29 of 94) [1994] LSCA 131 (28 July 1994)

C. OF A (CIV) NO.29/94 IN TEE COURT OF APPEAL OF LESOTHO In the matter between: THABO CHARLES MAITIN Appellant and MARY E. BARIGYE ACRES INTERNATIONAL LIMITED 1st Respondent 2nd Respondent HELD AT : MASERU CORAM: STEYN, A. P. KOTZE', . T. A. TEBBUTT, A. J. A. TEBBUTT, A. J. A. JUDGMENT. The appellant in this appeal applied in the High Court for an order ejecting the respondents from a house owned by him in Maseru West and let by him to the respondents. His application was dismissed with costs. He appealed to this Court against that decision. At the conclusion of the argument in this Court the Court dismissed the appeal, with costs. It intimated that it would file its reasons for so doing later. These are the reasons . The learned Judge in the Court a quo (Maqutu J) dismissed the application on two grounds - (i) he meru motu raised, as he was, of course, entitled to do, the jurisdiction of the High Court to hear the application and found that the application should not have been brought in the High Court but in the Magistrate's Court in terms of Section 17 (1) (c) of the Subordinate Court Order of 1988 , read with Section 6 of the High Court Act No. 5 of 1978, and (11) he upheld a point in limine against the appellant viz that there was a dispute of fact of which the appellant should have been aware before "bringing his application and that, therefore, his claim for ejectment should have been brought by way of action and not by way of application. The appellant challenged both these findings in his appeal. It was, however, clear to this Court - and indeed, Mr Sello who appeared for the appellant conceded as much - that if the learned Judge was correct in dismissing the application on the first ground viz the question of jurisdiction, the appeal as a whole had to fail. As to the first ground, Section 17(l)(c) of the Subordinate Court Order provides that the subordinate i.e. magistrate's courts have jurisdiction - "(c) in any action of ejectment against the occupier of any house, land or premises within the district." Section 6 of the High Court Act No.5 of 1978 provides that "No civil cause or action within the jurisdiction of a subordinate court ... shall be instituted in or removed into the High Court save - (a) by a Judge of the High Court acting on his own motion; or (b) with leave of a Judge upon application made to him in chambers and after notice to the other party." It is common cause that neither of these events occurred. The case should therefore, it would appear, have been brought not in the High Court but in the magistrate's court. The appellant, however, contended that the jurisdiction of the subordinate i.e. magistrate's court is limited to those ejectment cases where the value of the occupation of the premises to the tenant is within the jurisdiction of that court. The - appellant is not correct. Section 17 of the Subordinate Court Order provides in sub-section (a) monetary limitations in respect of claims on liquid documents and, similarly, monetary limitations are set in actions in which the delivery of movable and immovable property is claimed. Sub-section (d) also provides for monetary limitations in respect of other actions. There is, however, no monetary limitation in respect of ejectment actions, section 17(l)(c) conferring jurisdiction on the Subordinate Courts, in any action of ejectment. (My emphasis) The learned Judge a quo was therefore quite correct in holding that the subordinate courts have jurisdiction to hear ejectment cases regardless of the value of the property and that, having regard to the provisions of Section 6 of the High Court Act, the application should not have been brought in the High Court but in the magistrate's Court. The first ground of appeal accordingly failed and it followed that the appeal as a whole had to fail. It was accordingly not necessary for this Court to consider the point in limine raised in the Court a quo. In the result, therefore, the Court dismissed the appeal, with costs. I agree I agree P. H. TEBBUTT ACTING JUDGE OF APPEAL ACTING PRESIDENT G. P. C. KOTZE' JUDGE OF APPEAL Delivered at Maseru This 28th Day of July 1994.