Mphana v Malefane (CIV/T 266 of 88) [1994] LSCA 72 (31 March 1994)

CIV/T/266/88 IN T HE H I GH C O U RT OF L E S O T HO In the Matter of: THABO MPHANA Plaintiff V8 NEO MALEFANE Defendant Delivered by the Hon. Mr. Justice W. C. M. Maqutu. Acting Judge on the 31st day of March. 1994. On the 5th April, 1988 summons were issued against Defendant in an action in which Plaintiff claims (a) Ejectment and/or Defendant from the said site; eviction of (b) Costs of suit; (c) Further relief. and/or alternative Service was effected on the Defendant on the 30th August, 1988 and a Notice of Appearance was duly filed by the Defendant on the 19th September, 1988. A Notice to file plea was issued against Defendant but no plea was forthcoming. Defendant's attorney of record withdrew on the 10th November, 1988, On the 2nd August, 1988, the matter was set-down for 2nd August, 1989. A rather puzzling step for all that was sought was a judgment by default. This was eventually obtained on the 11th September, 1989. An application for rescission of judgment followed. This was granted by Molai J. on the 17th May, 1990. On the 28th May, 1990 Defendant pleaded to Plaintiff summons and declaration. The file of the case has since been misplaced. The file that is being used for this trial is that of the application for rescission of judgment. Two files were unfortunately and unnecessarily opened for this matter. A rescission, of judgment is really an interlocutory application that is being made before the proceedings in the action are finalised. For that reason no new file with a different number ought to be. opened. Both Plaintiff and Defendant claim to have inherited the site and immoveable property that is the subject of this action. Plaintiff in her declaration does not clearly set out how she came to be the lawful user or occupier of the residential site in question that is situated at Sebothoane in the Leribe district. She nevertheless proceeds to attack Defendant's title on following two grounds. 1. 2. Since in or about July 1981 Defendant has been in wrongful and unlawful occupation of the said site on the pretext that his late father Sidwell Tefo Mphana was a holder of a valid title deed issued pursuant to the Deed's Registry Act 1967. The said residential site was at the time of execution of the said title deed in a rural area and did not qualify for registration under the Deeds Registry Act 1967 and such registration was null and void. At the outset, it has to be observed that in Lesotho there is no individual ownership of land. It is for this very reason that Section 2(2) of the Deeds Registry Act 1967 states "For the avoidance of doubt, it is hereby declared that nothing in this Act shall be construed as conferring upon any person the ownership in and over land." This merely underlines the customary law of Lesotho which was reinforced by Section 92 of the Lesotho Constitution of 1966 which states all land in Lesotho vests in the Basotho Nation. It is for this reason that what Plaintiff calls a title deed is in fact "A registered certificate of title to occupy and certificate of registered title to immoveable property." In short an individual can own immoveable property such as buildings and improvements on land, but not the land itself. That belongs to the Basotho people. Land allocating authorities only allocates to individuals the right to use and occupy the land. This is what is at issue here. When proceedings began, the Court queried the bringing of ejectment proceedings before the High Court. The reason being that Section 6 of the High Court Act of 1978 forbids a litigant from bringing an action which is within the jurisdiction of an inferior court before the High Court. Ejectment is such a cause of action. It is within the jurisdiction of the Magistrate Court. What followed was an amendment of Plaintiff's summons which was consented to by both parties. It was the type of amendment that was already covered by the Defendant's plea, consequently no postponement was called for. Indeed both parties were anxious to proceed with the action. Nevertheless, I directed that the amendment which was already granted be typed, served and filed record. This was done. Consequently Plaintiff's claim was for: "(a) Cancellation of Registered Certificate of Title to occupy and Certificate of Registered Title to Immoveable Property No. 15940 register on 17th June, 1980 by the Registrar of Deeds; (b) Ejectment eviction and/or Defendant from the said site; of (c) Costs of suit; (d) Further relief." and/or alternative Plaintiff Neo Malefane became the first witness (P. W. I). She had brought this action while she was a spinster. She had since married one Matete who was later found to have been the Officer Commanding the Leribe police. She was assisted by him in these proceedings and Defendant did not object to this change of status. She claimed that the site in question was allocated to her mother Nts'ebonyane Malefane personally although the said Ntse'bonyane was a married woman. This does happen in Lesotho although it is not common. The husband still controls that property like all the property of the estate. Plaintiff claim she had been made the heiress by the Malefane family between 1977 and 1978 because her brother who was the heir by Basotho custom had died in 1976. According Co her, her uncles and the Malefane family made her an heiress. The reason for this was that she was the only one who was unmarried when others had married. This again is unusual. Nothing of course can stop the family from doing as it sees fit, but the position of women as perpetual dependants is well established. There are, however, precedents of emancipated single women who were allocated lands in their own right and had accumulated property as any household. The case in point is that of Monvake v. Monyake J. C, 293/53. Her brothers tried to challenge her right to hold lands and property in her own right, but it emerged (and the court confirmed this) that single women can be so emancipated if they have not been fortunate to get married. That being the case, it was probable that Plaintiff was indeed made heiress by the family. Plaintiff said the site was allocated to her mother in 1959 and houses in which she and others lived were built there before 1970. No document of title was produced. In 1973 a big house was built on the site and they lived in that house. In 1977 they left that house and came to live in Maseru. They left Matekane a watchman to look after the house. They received a report that Mphana, the father of Defendant had taken the keys from Matekane. The chiefs and the police could not help them because the said Mphana was the officer commanding Leribe police. Plaintiff delayed in bringing these proceedings between 1979 and 1988 but her explanation for the delay was far from convincing. Plaintiff says she first learned Defendant had a title deed when this matter was brought before courts. By this time the house had been extensively damaged by herd boys. Plaintiff does not even know when Mphana, Defendant's father died. Plaintiff claims Defendants father had threatened them. Subsequent evidence disclosed that Mphana Defendant's father died in December, 1980, In 1982 her elder sister's son claimed the site from. Defendant. The chief of the area later said the site belonged to Plaintiff's mother Nts'ebonyane Malefane. Plaintiff asked the court to cancel the Certificate of Title to Occupy in respect of site No. 15940 dated 17th June 1980. Much was made of the fact that there is no place such as Lipeketheng Sebothoane which appears on the letter of allocation in favour of Defendant's father. The Court is satisfied that because the site is near Lipeketheng it might have legitimately said to be situated at Lipeketheng Sebothoane. Plaintiff challenged the fact that the site was alleged to have been allocated by Chief L. J. J. Molapo as Chief of Ts'ifalimali Sebothoane. Plaintiff believed if Defendant's father's letter of allocation had been properly issued, it ought to have been issued by Chief Letlatsa Motsoene. She felt it was invalid because in. November 1972 when it was issued her mother had already build houses on the said site. She was also claiming that Defendant be ejected from the site with costs. Cross-examination revealed that Plaintiff and her sister's son who sued Defendant acted in concert sometimes Plaintiff even asked her sister's son to take Defendant to the Chief over the site despite the fact that she was the heiress. It was during one of the occasions that the Chieftainess of the Ts'ifalimali Sebothoane and her land allocation committee wrote a letter to the effect that the site in question belonged to Nts'ebonyane Malefane (Plaintiff's mother). One thing that I observed was that Plaintiff avoided referring to her sister by name. It emerged her sister was Mrs Nts'ekhe a divorcee. It also emerged from cross-examination that she built the house and at the magistrate court some witnesses said the site was hers. In fact Defendant's counsel actually put it to Plaintiff that the site in question belonged to Mrs Nts'ekhe. During cross-examination, it emerged her sister Mrs Nts'ekhe was actually buried in the site. Plaintiff played down the participation of Mrs Nts'ekhe in the history of the site. This made me very suspicious that I was being misled. P. W.2 Mahlape Sekoli confirmed Plaintiff's story as to her appointment as heiress around 1978. She is Plaintiff's elder sister. She confirmed also that the site belonged to their mother who died in 1972, Mrs Nts'ekhe her eldest sister had control of the site although it was never allocated to her. She claims the site was allocated to their mother in 1968. Houses had already been built on the site in 1972 by her mother. She was surprised to learn under cross- examination that another sister of hers 'Mathabang Molemahang had at the court said the said site was allocated to Mrs. Nts'ekhe, She stated that Defendant's father Mphana had been the late Mrs Nts'ekhe's lover. They never cohabited although some people might believe they did. Cross-examination treated her as one of the parties to the action so she was taxed about the delay in bringing this action. She like Plaintiff gave an explanation that was far from convincing. She claimed that at one stage Defendant admitted the site did not belong to the Mphena's but he was carried by anger in taking it together with some animals of Mrs, Nts'ekhe which Defendant voluntarily returned. Defendant was given an opportunity to challenge this statement through cross-examination. P . W .3 Moshe Makhalema said the site was allocated to Plaintiff's mother Nts'ebonyane Malefane in 1968. At the Magistrate Court he had said that site had been allocated to Mrs. Nts'ekhe. He was in serious trouble under cross-examination. Her sworn statement before the magistrate has been handed in by consent and it is marked R1 and R2. P. W.4 Phillimon Lenong gave evidence to the effect that the land allocation committee held an enquiry in which it was established that the site belonged to Nts'ebonyane Malefane. This was signed by the Chieftainess and others. These people interviewed people who were in the committee. Their finding dated 26/2/83 marked Exhibit "A" was handed in. This court does not attach much importance to this letter because the land allocation committee is not a court of law. It will make its own evaluation of evidence. Suffice to say that this finding Annexure "A" was handed in before the Magistrate Court but Defendant denied ever seeing it. Motlatsi Kotola P. W.5 gave evidence to the effect that he knew the late Chief Letlatsa Motsoene and had known him since 1950. He said he also knows the late Chief Motsoene's handwriting. The writing of L. J. J. Molapo on Defendant's Form C was unknown to him, L. J. J, Molapo had never been Chief of Ts'ifalimali Sebothoane. He said the site in dispute was 600 yards from his home and that it belonged to Mats'enyetso Malefane the mother of Maseabane Nts'ekhe (Mrs Nts'ekhe). In 1972 four huts were already built on the site 3 on the Northern side and one next to the Pitseng road. He said the houses were built in the early sixties. Later a big square hut was built on the site. He denied the suggestion that Letlatsa Motsoene used the surname Molapo. He produced an, agreement marked annexuture "B" which was signed by the late Chief Letlatsa Motsoene in his presence. Defendant Thabo Lesley Mphana was the only witness who gave evidence on behalf of Defendant. He is the one who took the Form C to the Law Office in March 1980 on behalf of his father for registration of the site. He was told it had lapsed. He took it to Chieftainess Matikoe Letlatsa Motsoene who signed it at the top and put her rubber stamp on it. He paid the registration fee on 27/5/80. The Registered Certificate of Title to occupy the site was issued on 17th June, 1980. He handed it in as evidence, it was marked Ex "C". His father died on 4th December, 1980. Seabane Nts'ekhe wanted him to vacate the site but he refused. The matter ended in Court where he was left in occupation. The judgment by common agreement was absolution from the instance. Defendant has no knowledge of what transpired before or during 1972. He relies on the Certificate of Title to Occupy and Certificate of immovable property which he handed in. He has never lived on the site. He says the police officer Leribe took away cattle from him. Nobody could help including the Police Public Relations Officer until to-day. He knows nothing about the building on the site and how it was built. He does not know why his father allowed his lover Mrs Nts'ekhe to be buried on the site. This in short is the evidence. The Defendant did not challenge the fact that the site in question was occupied and built up before 1972 when his late father was allegedly allocated the site presently in dispute. His defence amounts to fishing in the troubled waters of the Malefane and Nts'ekhe families. Defendant's defence is that the Malefane's have no title to sue because in the past the son of Mrs Nts'ekhe was allowed to collect and marshall evidence to the effect that the site was allocated Plaintiff's elder sister Mrs Nts'ekhe. Indeed cross- examining P. W.2 Mahlape Sekoli (a sister of Plaintiff) it was put to her that another sister of Plaintiff 'Mathabang Molemahang (gave evidence in support of the son of Mrs Nts'ekhe before a Magistrate) and said the site in dispute was allocated to Mrs Nts'ekhe, In the case referred to Defendant was still a party. There is substance in this criticism. The problem is that 'Mathabang Molemahang is not a witness before this court, nevertheless this approbation and reprobation on the part of the Malefane's should put the court on guard in evaluating their evidence. The evidence of P. W.5 who was clearly a reliable witness to the effect that he knew this site as being that of Mats'enyetso Malefane the mother of Mrs Nts'ekhe. In this respect he corroborates Plaintiff and P. W.2. If Mrs Nts'ekhe who according to P. W.2 was in charge of their mother's affairs built her house on the site, this does not help Defendant. For one thing tacit understandings are not uncommon within the families. It is not being too speculative to infer that Mrs. Nts'ekhe's mother allowed her to build her own house on the site on the understanding that she would donate the site to her but never did so. If there was this understanding then the fact that the Malefane's were not hostile to the idea of the site going to Mrs Nts'ekhe's son cannot really help Defendant. Mrs Nts'ekhe built the house on her own mother's site despite the fact that her title to the site was precarious, expecting other members of the family not to challenge her in future. It seems we have not been told everything by the Malefane sisters. They have with-held a great deal from the court. They probably have not told us that their mother had given the site to Mr. Nts'ekhe but only failed to transfer it. Then again, the Malefane sisters may have with-held the fact that 'Mats'enyetso the mother of Mrs Nts'ekhe got the site in her own name in order to protect it from falling into the joint estate of the marriage of the late Mrs Nts'ekhe. This practice is very common in Lesotho. Married women whose marriages are beginning to have problems usually obtain sites through their maiden relatives. We will never know the real truth. The Court cannot reject out of hand the fact that Plaintiff was made heiress by the Malefane family at a time she was unmarried. Whether it was specifically for this site it is hard to say. This evidence is not seriously contested so the Court is entitled to act on it. Therefore, the Plaintiff has a title to sue. This conclusion is reached on the balance of probabilities. Defendant could not bring any evidence in rebuttal of what happened within the Malefane family. His problem is understandable though his reliance on internal problems of the Malefane and Nts'ekhe families to hold on to what he possesses is bound to put him at a disadvantage at places. The next problem to deal with is whether or not the absence of documents of title in the Plaintiff's case was fatal to Plaintiff's case. Plaintiff says the document of title were in the house. The late Mphana must have destroyed them. Does loss of documents result in loss of rights to land? In fairness to Defendant's counsel he did not make such a suggestion. All he says is that Plaintiff cannot resolve the contradictions in evidence at the Magistrate Court (in the case brought by Seabane Nts'ekhe against Defendant) and the evidence given before this court. This specifically applied to P. W.3 whose transcript of evidence before the Magistrate has been handed in. It is a criminal offence for a person to occupy land without authority, therefore, the Court must accept the evidence that whoever built on the site between 1968 and 1972 must have been allocated that site. If that was not the case, the chief or headman would have instituted criminal proceedings. It has to be noted that the Laws of Lesotho relating to land have always been full of errors but their purpose has always been clear. For example, the Land Procedure Act at Section 112 provides that: "a chief or headman who makes an allocation or a grant in land of interest or right in and over land to any person or persons shall issue or cause to be issued to such a person or persons a certificate of such allocation or grant". The form of the certificate is supposed to have been prescribed in the Regulations. The Regulations were never made. This fact was drawn to my attention by Mr. Pheko (the attorney for Plaintiff). It was a great revelation to discover that Mr. Pheko was in fact right. The reason being that since 1965 the Certificate of Allocation issued to people was styled Form "C". This Form "C" which was used from 1965 up to 1974 was prescribed in 1965 in terms of Regulation 15 of 1965 which contained the Land (Advisory Boards Procedure) Regulations 1965. The Form "C" annexed to the Land Procedure Act of 1965 is a Notice of Appeal. Section 10 of the Land Procedure Act of 1965 actually prescribes this Form C for appeals. No one has ever queried the Form C as a letter of allocation. It has been relied upon in countless civil and criminal cases. It is precisely for reasons such as these that Land Laws of Lesotho should be applied remedially. For this reason legal technicalities have to be avoided. It is logical to hold that a site cannot be validly allocated to a second person before the first allocation is revoked. Indeed Sections 9 and 11 of the Land Procedure Act 1967 actually make this obligatory. In Seeiso Sehloho v. Tumo Majara 1971-73 LLR 194, the Court of Appeal was faced with such a case. Milne J. A. held that an allocation made to a second allottee before the allocation to the other one is revoked in terms of the law is null and void. In that case there was no hearing in terms of Section 9 of the Land Procedure Act 1967 before the land was taken and given to some one else. Milne J. A. at page 199E said following Section 9 it is, "a condition precedent to any lawful revocation of rights, and no such notice was given his rights have never been lawfully revoked and the chieftainess accordingly had no right to allocate the field to applicant." It follows, therefore, that for Defendant to succeed it was necessary to show that a hearing was given to Nts'ebonyane Malefane or for that matter Mrs Nts'ekhe before the Malefane rights in the developed site were revoked. The purported allocation to the late Mphana dated 10th November, 1972 suffers from this defect. Then we come to the letter of Allocation Form "C" itself. The signature on it is definitely very different from that of the late Letlatsa Motsoene. No attempt was made to make it look like it. Therefore, no expert evidence is consequently to prove the obvious. The court compared it with the signature of Letlatsa Motsoene on exhibit "B". That signature had been appended on that document in the presence of Motlatsi Kotola P. W.5. He was not challenged on the appending of the signature by the late Letlatsa Motsoene. It was suggested that Chief Letlatsa Motsoene sometimes used the surname of Molapo. P. W.5 who is a credible witness stated that to his knowledge he never used the surname Molapo though he could not be absolutely sure that he had never done so. I checked the 1950 and 1964 gazettes where the names of all recognised chiefs are listed. I found in both of them he used the surname Motsoene. There seems to me very little doubt that this Form C dated 10th November, 1972 was not issued by the late Chief Letlatsa Motsoene. This Form C was not lawfully reissued because Defendant himself says that Chieftainess never called the land allocation committee and she was not called as a witness to explain herself. The site was in a rural area and in terms of Section 2(3) of the Deeds Registry Act 1967. Therefore it was not among those to which the Act applies. Registration could not strengthen Defendant's father's title in any way. If the Deeds Registry Act of 1967 has been extended to this site by mistake the Court is obliged to order its cancellation. Even if it did not, the special statue conferred by a registered deed of grant could not be extended to this site because the Act has clearly stated that it does not apply to rural areas. I am obliged to order the cancellation of this registered deed of grant in terms of Section 7 of the Deeds Registry Act 1967 because it has invaded the rights of others as well. In 'Mapakiso Ramafole v, 'Mamako Ramafole 1978 LLR 261, the court dealt with a registration that had been made by the wrong person by mistake. Isaac A. J. granted the prayer for cancellation Deed of Grant or Title Deed that was similar to this one in that it was in respect of a residential site although it was situated in the Maseru urban area where the Deeds Registry Act of 1967 applies. Among the problems that arose was that the site had been registered in 1970 and proceedings for cancellation brought in 1977. Respondent claimed the delay in bringing the application was unreasonable. Isaacs A. J. at page 266 handled this problem as follows: "I have considered whether, her delay, in bringing this application to court, the applicant must be considered to have waived any rights she had . . . The doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be unjust to give a remedy, either because a party has by conduct done that which might be equivalent to waiver of it, or where by neglect he has . . . put the other party in a situation in which it would not be reasonable ... if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material." "It is doubtful whether the doctrine of laches has ever been part of Roman Dutch Law... But it seems to me that in the present case First Respondent has not been prejudiced in any by the delay. Moreover in Sotho customary law, it seems that a debt is never prescribed so that mere delay in enforcing a right does not of itself result in the loss of that right. (c/p Duncan Sotho Laws and Customs at page 114. Delay does not amount to waiver." In reaching this conclusion Isaacs A. J. relied on Sackwille West v. Mourse and Another 1925 AD 516 at page 525 and North Eastern District Association v. Surkley and Others 1932 WLD 181.. Guided by Isaacs A. J. in my opinion, therefore, the applicant cannot be considered to have lost her right through the delay in attempting to enforce it. In Seetsa Tsotako v. Matsaisa Matabola C of A (CIV) No. 10 of 1986 (unreported) the Court had to deal with an allocations whose foundation was a fraudulent Form C. which was subsequently replaced by a new Form C by the Chief's successor to secure registration of the site. It was contended by the appellant in that case that since there were two competing allocation and that appellant had built a house on the site the court was precluded by Section 82 of the Land Act 1979 from enquiring into the validity of appellant's allocation since appellant had developed the site by erecting a building on it. Aaron J. A. said: "The purpose of the section is to cut the Gordian knot where there have been two valid allocations, not to avoid a factual enquiry In any event, if is to say the least doubtful whether the section can apply where one allottee wrongfully dispossesses another allottee who is in occupation ...." Defendant is in an even worse position than that of Appellant in that because his father is not alleged to have erected the house on the site. He seized the site from Plaintiff's watchman who was in control of the premises on behalf of Plaintiff. His letter of allocation is on its face of doubtful origin. Defendant did nothing to rebut this evidenciary burden that his Form C was not signed by the late Chief Letlatsa Motsoene. He is, therefore, in a worse position than Seetsa Tsotako. Mr. Pheko argued that the fact that the site was registered two days after the coming into operation of the Land Act 1979 should entitle the court to cancel the Certificate of Title in favour of Defendant's father. I will not decide this point. In the courts view it is most unlikely that during the life-time of the late Mrs Nts'ekhe, the late Mphana believed or even claimed this particular site as his. The probabilities are (for the above reasons and what followed when Mrs Nts'ekhe died) are against Defendant's father, the late Mphana ever having been allocated this site. The reason being that no man in his right senses would allow his lady lover to be buried in the site that belongs to him and his family. Site by Basotho custom is awarded to the man (as head of his house) and his wife. It would be scandalous and highly provocative to bury his mistress in a site that belongs to him and his family. the only inference is that since Mrs. Nts'ekhe built the big house on the site, she considered it as her home and her maiden family acquiesced in this action. If this was not the case she would not have been buried there. The temptation to seize the site must have over-come the late Mphana much later. Three years after the death of Mrs Nts'ekhe, the late Mphana took possession of this site in which Mrs Nts'ekhe was buried. He also seized some animals which Defendant says Matete the present husband of Plaintiff took them away from him by force. P. W.2. says Defendant handed them back voluntarily. I do not have to decide the matter of how these animals were returned. Nevertheless from these events, it is probable that the late Mphana felt this love affair with Mrs Nts'ekhe gave him some stake in Mrs Nts'ekhe's property. The basis of this we will never know. Sufficeth to say the late Mphana's action was illegal and illogical. Defendant (according to his evidence) is the one who procured the registration of that site. His father seems only to have signed the affidavit in support of the application, for registration, Eight months later he died. The court is obliged to act on available evidence and not on speculation. There is a lot that this Court cannot know because it is with-held. This is unfortunate. The Court has to do the best it can on the evidence before it. I have already shown that the father of Defendant has no discernible right to the site. Consequently I enter judgment for Plaintiff in terms of his amended claim. It is, therefore, ordered: (a) That the Registered Certificate of Title to Occupy and Certificate of Registered Title to Immoveable Property No. 15940 registered on the 17th June, 1980 in the Deeds Registry be cancelled by the Registrar of Deeds, (b) Defendant is directed the site in respect of which the certificate of title referred to in (a) above relates. (c) Defendant is directed to pay costs. W . C . M M A Q U TU ACTING JUDGE. 31st March, 1994, For Plaintiff : For Defendant : Mr. Matooane. Mr. Pheko