Kamele v Lephatsoe (CIV/APN 219 of 89) [1991] LSCA 92 (31 July 1991)

CIV/APN/219/89 IN THE HIGH COURT OF LESOTHO In the matter between:- ELIZABETH KAMELE A p p l i c a nt and EDWARD LEPHATSOE R e s p o n d e nt J U D G M E NT Delivered by t he Honourable M r. J u s t i ce J. L. Kheola on the 31st d ay of July, 1991 T he f a c ts of t h is c a se are well summarized by the Local C o u rt President in h is j u d g m e nt on p a g es 6 - 8 and the read as f o l l o w s :- "The c a se started de n o vo before t h is C o u rt on 8 th February, 1984 in which the plaintiff Edward Lephatsoe sues the d e f e n d a nt Sefora Kamele f or h is site which he says the d e f e n d a nt u s es w i t h o ut h is p e r- m i s s i on and in h is answer to p l a i n t i f f 's plea t he d e f e n d a nt denied t h i s, so t he o n us is upon t he plaintiff: when the plaintiff started he said the site he sues the d e f e n d a nt f or b e l o n gs to h is g r a n d - m o t h er Nthoto after w h o se d e a th the site remained in h is m o t h e r 's possession 'Mapaballo Lephatsoe w ho o n ce disputed t h is site with Elizabeth Kamele and t h is p o i nt is contained in Ex. "A", copy of the Central C o u r t, CC 17/77 w h e re the c a se w as remitted to the -2- administrative court and so to d a te there is no valid judgment on t h is site; the plaintiff told t h is c o u rt that he saw the d e f e n d a nt unroofing the house and carrying t he house stones to h is site which t he plaintiff had left in the care of Tseko M p o b o l e. Plaintiff called P. W.1, Tseko Mpoble w ho says the plaintiff left him in charge of t h is site in d i s p u t e, it is there that he saw the d e f e n d a nt unroofing the house and carrying away the stones of the wall of the plaintiff and the p l a i n t i f f 's last w i t n e ss w as chief Moletsane Koali w ho is running the administration on behalf of Chief Molapo Koali w ho said he k n o ws t h is site which presently b e l o n gs to h is grand-mother Nthoto after w h o se d e a th it belonged to the plaintiff's p a r e n t s, today it b e l o n gs to the plaintiff, he says t h is site used to belong to Timoti Nolutshungu w ho sent o ut P. W.2 chief Moletsane to go and allocate Nthoto, the p l a i n t i f f 's grand-mother and he allocated her next to the d e f e n d a n t 's w i f e 's b u s i n e ss site which w as already there, he therefore says the d e f e n d a nt u s es t h is site wrongly, he had no right at all to it. After the p l a i n t i f f 's evidence it w as found that a prima facie c a se had been m a de for the d e f e n d a nt to answer once he is offered such an opportunity, the d e f e n d a nt says he himself d o es not claim the site because t h is site b e l o n gs to h is wife as b u s i n e ss site whose d o c u m e n ts he h as and also says the instruction to unroof the house and d e m o l i sh the wall in question c a me from Elizabeth, h is w i f e; t h is is the d e f e n d a n t 's evidence. After the litigants and their w i t n e s s es have given their evidence the court w e nt on inspection in loco and after the p o i n t i n gs t h is court c a me to the conclusion that the plaintiff h as ably proved h is c a se and the d e f e n d a nt w as to refute that he and the other m en did not unroof and demolish the wall and also to carry away everything for h is own good but he failed to rebut t h is part where he w as personally involved in h is w i f e ' s, Elizabeth's site nor did he call h er as a w i t n e ss to assist him in all that w as d o ne on the site w h e r e as h is w i fe is still alive and it a p p e a rs he d o es not want h is w i fe from whom he says the instructions came should c o me and rescue him. - 3- In the premises the plaintiff's claim is upheld the defendant is ordered by judgment to withdraw his hands from this site which should solely remain as the plaintiff's, on the west it ends above the oven of the defendant who is ordered to remove it from there. On the north is the aloes, on the East is Shadrack Makhale's site and between the plaintiff's site and that of Shadrack is 3 paces foot path leading to the hills, on the South is a big road currently used. The plaintiff conveyed the court to and from in h is vehicle, he also conveyed the court to the chief's place. The defendant should con- tribute to this by paying M7.50 before this court. The defendant is ordered to pay M50.00 plaintiff's costs in this court." The only correction to be made is that the appellant's late husband who w as the defendant in M t. Moorosi Local Court did not admit that he removed the roofs and demolished the walls of the respondent's house. (See page 4 of the record). It is common cause that after losing the case the appellant's late husband appealed to Quthing Central Court. While the appeal w as pending in that court he was killed in a road accident. It is alleged that the appeal w as eventually struck off the roll. The appellant did not make any application to reinstate the appeal but made an application for the review of the proceedings by the magistrate in terms of section 26 of the Central and Local Courts Proclamation No.62 of 1938. I am of the opinion that the appellant w as entitled to apply for review because there w as no longer any appeal pending before the Central Court when she made her applciation. / 4 . . .. -4- However she had to satisfy the magistrate that grave irregularities or illegalities had occurred during the course of such proceedings. The learned Resident Magistrate referred to the case of Johannesburg Consolidated Investment Co. v. Johannesburg Town Council, 1903 T. P. D. 111 in which review was defined as follows: "(a) Review by summons. The process by which, apart from appeal, the proceedings of inferior Courts of Justice both civil and criminal are brought before the Supreme Court in respect of grave irregularities or illegalities occuring during the course of such proceedings. (b) Review by motion. The process by which where a public body has a duty imposed on it by statute, or is guilty of gross irregularity or clear illegality in the performance of that duty, its proceedings may be set aside or corrected." The learned Resident Magistrate found no gross irregularity in the procedrue adopted by both the Central and Local Courts and dismissed the application with costs. The appellant is now appealing to this Court on a number of grounds. The first ground being that the learned reviewing magistrate erred in ignoring the fact that first respondent sued a wrong person while the first respondent knew that the appellant had a registered title to the site. I think this statement is incorrect becaose in his judgment the learned Resident Magistrate status that the respondent had a right to sue the appellant as he is a major and is the one in possession of the site in dispute. I tend to agree with this reasoning because /5 -5- there w as evidence by Chief Moletsane Koali that the appellant's b u s i n e ss site is d i f f e r e nt and separate from the site now in aquestion. It seems to me that the appellant cannot capture all t he sites surrounding h e rs on the simple ground that she has a Form C for her site. The second ground of appeal is that the learned Resident Magistrate misdirected himself on a point of law in coming to t he conclusion that appellant should have noted an appeal against t he judgment of M t. Moorosi Local Court wherein the appellant had not been heard as t he owner of the site which is the subject m a t t er of the claim. Again I think t he court a quo regarded the site in question as separate from that of the appellant. I have no quarrel with that finding. The third ground of appeal is that the learned Resident Magistrate erred in ignoring the fact that the Central Court had m a de a ruling that before the m a t t er is referred to the c o u rt of law the p a r t i es m u st take the matter before their chief to d e t e r m i ne the boundary of the site in question. S i n ce the Chief had not been called to d e t e r m i ne t he boundary, t h is w as a g r o ss irregularity by the Local Court to e overnite t he ruling of t he Central Court which w as to the effect that before the m a t t er is brought to the c o u r ts of law, the chief had to d e t e r m i ne the boundary. It is common cause that at the trial the respondent handed in as an exhibit a copy of a judgment of the Central Court in CC 17/77 which w as marked Exhibit "A". Unfortunately that copy of judgment /6 -6- h as not been included in the p a p e rs before m e. Be that as it m a y, in h is judgment at page 6 of the record the Local Court President acknowledges that there w as such a judgment and that the m a t t er w as remitted to the administrative court and he a d m i ts that there h as been no compliance with the order of the Central Court. It seems to me that even in CC 17/77 Chief Moletsane Koali w as a w i t n e ss but the Central C o u rt rejected h is evidence and remitted the case to the chief of the area to draw the boundaries. There w as no appeal against that ruling and no compliance with it. 1 come to the conclusion that it w as a grave irregularity for a Local C o u rt to refuse to comply with the order of the Central Court. The demarcation of boundaries is a m a t t er for the land allocating authority to d e t e r m i ne where there is uncertainty. Although the case of the Minister of Interior and o t h e rs v. Chief Letsie Bereng C. of A. (CIV) N o. 17 of 1987 d e a lt with a boundary between two Principal C h i e f s. I am of the opinion that where there is i n c e r t a i n ty concerning a boundary between two sites leading to continued litigation without any final decision because of uncertainty of the boundary, the c o u r ts of law may refer the m a t t er to the chief to redefine the boundaries. The Quthing Central Court apparently m a de such an order but the p a r t i es have not complied with that o r d e r. T he M t. Moorosi Local Court w as aware that there had been no compliance with an order /7 -7- of a Central Court but decided to hear the m a t t er de novo. T h is point w as not argued before the court a g uo and there is nothing to show that h is attention w as d r a wn to it. It would have probably come to a d i f f e r e nt conclusion. AT the hearing of t h is appeal M r. Maqutu, attorney f or the appellant, submitted that there w as no evidence before the M t. Moorosi Local Court upon which the court would have found that there w as a proof of a boundary and encroachment by the applicant's late husband. It will be noted that in their evidence in court the respondent and Tseko Mpobole did not give any evidence regarding the boundaries of the site. Chief Moletsane Koali did not also d e s c r i be the boundaries of the site. No one gave any evidence about the boundaries until an inspection in loco w as m a d e. The normal practice is that in h is or her evidence in court a w i t n e ss m u st give some description of the boundary and then during the inspection in loco her or she merely points out what he or she h as already described in her or h is evidence while under oath. In Rex v. Van Per M e r w e, 1950 (4) S. A. 17 at p. 20 Brink, J said: "Now explanations m a de by witnesses or what they pointed o ut at an inspection in loco are not evidence before the C o u r t. hearing is resumed, to call the witnesses to give evidence in open Court under oath as to the explanations m a de at the inspection and as to the p o i n ts indicated by them. It is usual after an inpsection in loco, when the - 8- In London General Omnibus C o ., Ltd. v. Lavell ( 1 9 0 1 ), th. 135 at p. 139) the Court remarked that a view w as not to be put in the p l a ce of evidence, but w as to enable the tribunal to understand the questions raised and to follow and apply the evidence. In Gold stuck v. Mappin & W e b b, Ltd. (1921, T. P. D.. 7 2 3) Feetham, J. said it w as d i f f i c u lt to d r aw a line between a view f or the purpose of understanding and applying evidence and a view f or the purpose of obtaining evidence. The learned Judge then remarked! "I think there is good ground f or the opinion expressed on t h is point in Wigmore on Evidence, sec. 1168: 'It is wholly incorrect in principle to suppose that an autoptic inspection by the tribunal d o es not supply it with evidence; f o r, although that which is received is neither testimonial nor circumstantial evidence, nevertheless it is an even m o re d i r e ct and satisfactory source of proof, whether it be termed evidence or not. The suggestion t h a t, in a view or any other m o de of inspection by the jury, they are "merely enabled better to comprehend the testimony", and do not consult an additional source of knowledge, is simply not correct in f a c t' ". Accepting t h is wider view of an inspection inr loco, it d o es not permit the Court to take cognisance of the w o r ds or d e e ds of the persons present at such an inspection and to utilise them as evidence in the c a s e. If they are to be relied o n, evidence under oath m u st be given in Court as to such w o r ds or d e e d s ." I agree with Mr Maqutu that there w as no evidence before the Court upon which it would have found f or the respondent. It is a g r a ve irregularity to d e c i de a c a se w i t h o ut any evidence. Another serious irregularity is that the Court President d o es not seem to have nbted h is own observations e.g. the position of the demolished house in order to d e t e r m i ne whether there w as encroachment or n o t. The pointing out of the boundary cannot be regarded as a deed amounting to evidence inasmuch as it w as not d o ne under oath. As I have said about the witnesses ought to have fully d e s c r i be the boundaries w h i le giving their evidence under oath in c o u r t; in such c a se the pointing out would be accepted. /9 - 9- In the light of the gross irregularities I have described above the appeal is upheld with costs. The order of the court a guo is set aside and replaced with an order: "The application is granted with costs." J. L. KHEOLA JUDGE 3ist July, 1991. For Applicant - Mr. Maqutu For Respondent - Mr. Malebanye.