Mokolokolo v Tloroisi (CIV/A 18 of 87) [1990] LSCA 117 (16 July 1990)

CIV/A/18/87 IN THE HIGH COURT OF LESOTHO In the m a t t er between:- THUSO MOKOLOKOLO Appellant and MOTSOALIPAKENG TLOROISI Respondent J U D G M E NT DELIVERED BY THE HONOURABLE M R. JUSTICE J. L. KHEOLA ON THE 16TH DAY OF J U L Y, 1990 This is an appeal against t he judgment of the learned Judicial Commissioner delivered on the 25th October, 1985. He set aside the judgment of t he Matsieng Central Court and rein- stated the judgment of the Matsieng Local Court which had awarded t he land in question to the present respondent. The arable land in question falls within the jurisdiction of headman Leutsoa S. Leutsoa who is subordinate to t he Principal Chief of Matsieng. It is common cause that t he land in question /2 - 2 - w as originally allocated to one Tintane Philemon Lethibelane w ho used it until her death in 1972 or 1973. According to the law t h at w as in force at that time the land of a deceased person became vacant on his or her death and it reverted to t he chief or headman for reallocation. The facts of this case are set out by t he learned Judicial Commissioner on pages 3 3 - 34 of t he record of the proceedings as f o l l o w s :- "The legal position was therefore governed by section 6, 7 and 8 of the Land Act 1973 (vol. XVIII Laws of Lesotho p. 1 8 1 ). In terms of sec. 6 of the Act t he respondent Motsoalipakeng Tlokotsi applied to headman Leutsoa and his Development Committee for allocation of Tintane's land to him. His application was refused and in terms of s e c. 7 t he respondent appealed to (there being no other superior chief) the Principal Chief of Matsieng who after consultation with a Ward Development Committee (established for the Ward) acting in terms of section 8 (2) of the Act upheld the appeal and without issuing a Form " C" the Principal Chief of Matsieng ordered headman Leutsoa to confirm respondent on the land in question. The decision of Principal Chief of Matsieng and his Development Committee is contained in Exh. "A" and it is dated the 25th February, 1976. Acting in terms of Exh. "A" headman Leutsoa is alleged to have confirmed the respondent on the late Tintane's land and issued a Form " C" marked Exh " B ". This form " C" was issued on the 21st A u g u s t, 1976. A f t er t h at the respondent ploughed the land and in 1977 one 'Makoali Mokolokolo the appellant's mother sued the respondent and his father Tlokotsi Motloli now representing the respondent in this c a s e, and claimed t he same land. In /2 - 3 - fact 'Makoali alleged that the respondent and his father were using the land in question without her consent. In other words she claimed the land as her property. 'Makoali's case was CC 23/77 Matsieng Local Court and its judgment is contained in E x h. " C ". According to appellant's version the land was alloca- ted to him by headman Leutsoa w ho issued a Form " C" dated the 4th July, 1976 and marked Exh. " E" in these proceedings." Section 18 (1) of the Land Act 1973 provided t h a t :- "Every decision given under sections 4,6,7,8,9, or 10 shall include a statement of the ground or grounds upon which that decision was given and that statement s h a l l, subject to the provisions of subsection (2) (f) and (3) ( g ), be conclusive for all purposes and shall not be questioned in any c o u r t ." In his decision, which appears on page 18 of the record of the proceedings, the Acting Principal Chief of Matsieng states that before he reached his decision he studied or considered written statements and the advice of his Ward Development C o m i t t e d. This decision is conclusive for all purposes and cannot be questioned in any court of law unless it can be shown under section 18 (2) (f) and (3) (g) that the decision was given in bad faith, that is to say, with the intent to defeat or evade or otherwise to avoid giving effect to any provision of any law. The decision of the Acting Principal Chief of Matsieng has not been challenged on any of t he grounds shown a b o v e. /3 - 4 - The only ground argued before this Court was that in terms of section 82 of The Land Act 1979, the appellant has a better title to the land than the respondent because he has been using the land and has developed it by building a house on part of it. Section 82 reads as f o l l o w s: "Where at the commencement of this Act any land or part thereof h a s, whether by error or o t h e r w i s e, been the subject of two or more allocations, the allottee w ho has used the land and m a de improvements thereon shall hold title to the land in preference to any allottee w ho left the land unused and undeveloped." It is common cause that the decision of t he Acting Principal Chief of Matsieng was delivered on the 25th February, 1976 and that is presumed to be t he date on which t he land was allocated to the respondent (See Mohlouoa Pule v. Sechaba M a k h a o l a, CIV/A/5/80 (unreported) ). Headman Leutsoa was apparently unwilling to comply with the decision of the Acting Principal Chief of Matsieng because he only issued a Form C to the respondent about five months later on the 21st A u g u s t, 1976. In the mean time Headman Leutsoa had on the 4th July, 1976 allo- cated the same land to the appellant. At that time he knew very well that the same land had been allocated to the respondent by the Acting Principal Chief of Matsieng. He did this because he was convinced that land was inheritable and that members of the family of the late Tintane were entitled to inherit the land. This was a clear misconception of the law which was in force at that t i m e. /4 - 4 - Regarding section 82 of The Land A ct 1979 I am interested in the w o r d s: "any allottee who left t he land unused and undeve- loped." (my u n d e r l i n i n g ). Do these words mean that where a piece of land is subject to two allocations the allottee w ho has been unlawfully stopped from using or developing the land should be regarded as having left t he land unused and undeveloped? T he word "leave" means to abstain from dealing with or to let remain in a specified s t a t e. I do not think that in t he instant c a se it can be said that t he respondent left t he land unused and undeveloped because after t he land was allocated to him in A u g u s t, 1976 he immediately ploughed it. In 1977 t he appellant started ploughing this land despite the fact that his m o t h er who was claiming the land on his behalf in CC 2 3 / 77 (See exhibit " C" at page 19 of t he r e c o r d) had lost t he c a s e. It seems that ever since 1977 t he appellant has been making it impossible for t he respondent to plough the land. At page 10 of the record the respondent has this to say:- " 1. If I remember w e l l, Tintane died in 1972. 2. I first ploughed this field in 1976 after I defeated 'Makoali and respondent no.1 ploughed it. 3. He ploughed it from 1977 and I appealed to the Principal Chief's C o m m i t t e e. 4. He ploughed it from then till now and he always ploughs and then go to t he mines so that I have no o ne to dispute w i t h ." In a case of agricultural land improvement must mean stopping dongas that may be present on such land or building c e n t :: /5 - 5 - furrows or growing some grass that will stop soil errosion e t c. However, building a house on agricultural land is not an improvement of such land and it is even against t he law. T he appellant cannot claim that he has improved the land by building a house on it. The appellant has been very clever because every y e ar he ploughed the land just before t he respondent could do so and left for the mines in t he Republic of South A f r i c a. I am of the opinion that t he respondent cannot be accused of having left the land unused and undeveloped because t he appellant cannot claim to have developed t he land and his use of the land was intended to stop t he respondent from using it. I do not think t h at t he intention of t he Legislature in enacting section 82 of The Land A ct 1979 and using t he words "left the land unused and undeveloped" was to include an allotted. who is stopped or prevented from using t he land by the actions of t he other a l l o t t e e. In any case agricultural land (arable land) remains unused as soon as harvest has been m a de and in spring the ploughing takes place at different times depending on what crop o ne intends planting. For t he reasons I have stated above t he appeal is dismisses with c o s t s. J. L. KHEOLA JUDGE 16th July, 1 9 9 0. For Appellant - M r. Pheko For Respondent - M r. M a q u t u.