Tentenkie Mohapeloa & 2 Others V Makibinyane Mohapeloa (C of A (CIV) 69/2024) [2025] LSCA 29 (2 May 2025)

LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO. 69/2024 LC/APN/0016/2023 In the matter between: TENTENKIE LIMPHO MOHAPELOA 1ST APPELLANT SEQOBELOA MOSHOESHOE 2ND APPELLANT MALETSIE MAPHUNYE MOSHOESHOE 3RD APPELLANT AND MAKIBINYANE SANTOS MOHAPELOA RESPONDENT CORAM: MOSITO P MUSONDA AJA CHINHENGO AJA HEARD: 15 APRIL 2025 DELIVERED: 02 MAY 2025 FLYNOTE law—Jurisdiction—Whether dispute falls within Land jurisdiction of the Land Court—Meaning of statutory “concerning land” under section 73 of the Land Act 2010— Characterisation of claims sounding in contract or delict as opposed to vindicatory actions—Claim based on familial arrangement concerning proceeds of sale of land—Proper forum for adjudication. This was an appeal against a decision of the Land Court (Banyane J) dismissing a preliminary objection to its jurisdiction. The respondent had authorised the transfer of his land to his niece and her husband, under a power of attorney granted to his sister, on the understanding that the land would be sold and the proceeds remitted to him. When no payment was made, he brought proceedings in the Land Court, seeking restitution of the land or compensation. The appellants, being the transferees and the agent, argued that the dispute concerned a personal grievance arising from an informal agreement, and thus fell within the jurisdiction of the Commercial Division of the High Court, not the Land Court. Held: The proper test for jurisdiction under the Land Act is not whether land is factually involved, but whether the right asserted arises under the Land Act or concerns legal rights to, over, or under land. The respondent’s complaint related not to title or statutory rights in land, but to an alleged failure to remit proceeds from a familial arrangement. His claim sounded in money, not in rei vindicatio. The court a quo erred in treating the matter as one falling within the Land Court’s jurisdiction. The application ought to have been instituted in the Commercial Division of the High Court. Appeal allowed. Order of the Land Court set aside. Application dismissed for want of jurisdiction. No order as to costs. JUDGMENT MOSITO P Introduction [1] This is an appeal against a judgment of the Land Court delivered by Banyane J on 25 October 2024, in which the court dismissed a preliminary objection regarding its jurisdiction to entertain the respondent’s claim. [2] The appellants argue that the respondent’s cause of action, as pleaded, lies in contract and is therefore justiciable before the Commercial Division of the High Court. They contend that the court a quo mischaracterised the dispute as vindicatory and wrongly assumed jurisdiction over the matter. Background [3] This matter arose from a dispute between siblings concerning the rights transfer in a parcel of land forming part of an inherited estate. The transfer, effected pursuant to a power of attorney, was subsequently challenged by the donor of that authority on the basis that it was executed in contravention of the understanding between the parties. The dispute gave rise to an application before the Land Court seeking either restitution of the property or compensation in lieu thereof. A preliminary objection was taken to the jurisdiction of the Land Court to entertain the application, on the ground that the claim sounded in contract or personal obligation rather than in land rights. That objection was dismissed, and the present appeal is directed against that ruling. Summary of Facts [4] The respondent, Mr Makibinyane Santos Mohapeloa, is the registered holder of leasehold rights in immovable property at Maseru East, designated as Plot No. 13283-205, which he inherited from his late parents. Due to planning regulations imposing a maximum area for residential plots, the land was subdivided into four smaller plots, one of which—Plot No. 13283- 10136—forms the subject matter of the present dispute. [5] Mr Mohapeloa, who resides abroad in Denmark, appointed his sister, Ms Tentenkie Limpho Mohapeloa, as his lawful agent by way of a special power of attorney dated 17 November 2021. That power authorised her to apply for the necessary consents and to effect the transfer of rights in Plot No. 13283-10136 to her daughter, Ms Maletsie Maphunye Moshoeshoe. Acting pursuant to that authority, Ms Mohapeloa procured a certificate of consent and, on 8 December 2022, caused the property to be registered in the joint names of Ms Moshoeshoe and her husband, Mr Seqobeloa Moshoeshoe. The couple, being married in community of property, subsequently caused a mortgage bond to be registered over the property in favour of First National Bank of Lesotho. [6] The respondent brought proceedings in the Land Court, contending that although he had authorised the transfer, such authority was granted on the mutual understanding that the land would be sold on his behalf and that the proceeds, said to be M200,000.00, would be remitted to him. He alleged that his sister had failed to do so, and had instead transferred the property to her daughter and son-in-law without his informed consent and without any consideration being transmitted to him. His case was that the transaction, while facially valid, had been procured through a betrayal of familial trust and amounted to a misappropriation of his property. [7] In the alternative, he sought the cancellation of the deed of transfer and the associated mortgage bond, or payment of the sum representing the market value of the land. The appellants, being the transferees and the agent, raised a preliminary objection that the matter was not properly one for the Land Court, as it concerned neither title to land nor a right arising under the Land Act, but rather a personal grievance in contract or delict. That objection was dismissed by the court a quo, which held that the claim was vindicatory in nature and fell within its statutory jurisdiction. The appeal before this Court turns on the correctness of that characterisation. The Court a quo’s Reasoning [8] The learned judge in the court a quo rejected the appellants’ contention that the matter fell outside the jurisdiction of the Land Court. Applying the test laid down in Moletsane v Thamae C of A (CIV) 23/2017 and other authorities, the learned judge reasoned that the respondent’s claim was not premised on a contractual entitlement but upon his assertion of ownership rights in land. [9] She held that the Land Court possessed jurisdiction, both by virtue of section 73 of the Land Act 2010 (as amended), and on the basis that the claim was, in substance, vindicatory in nature— being concerned with the reassertion of title rather than the enforcement of a commercial agreement. Issues on Appeal [10] The appellants challenge this conclusion. They raise two core grounds of appeal: [a] First, that the court a quo erred in finding that the respondent’s case was about title to land rather than breach of contract; [b] Second, that on a proper characterisation of the pleadings, the dispute arose out of a commercial transaction and thus fell within the jurisdiction of the Commercial Division of the High Court. The Legal Framework [11] Section 73 of the Land Act 2010 establishes the Land Court and District Land Courts and confers jurisdiction “to hear and determine all disputes, actions and proceedings concerning land.” This jurisdiction was further clarified by the Land (Amendment) Act 2012, which inserted the word “all” before “disputes,” thereby affirming the comprehensive character of the jurisdiction conferred. However, that provision must be interpreted contextually and purposively. The jurisdiction conferred is broad, but it is not without limit. It must be understood to extend only to disputes which, in their legal essence, relate to rights or interests in land as recognised or governed by the Land Act itself. [12] Thus, the phrase “concerning land” cannot be read in a merely descriptive or factual sense. It does not mean that any dispute in which land is mentioned, or which involves land in some incidental manner, automatically attracts the jurisdiction of the Land Court. Rather, the dispute must concern land in the legal sense—that is to say, it must involve rights to, over, or under land that are rooted in or regulated by the statutory regime established under the Land Act. The mere fact that landforms the subject matter of a transaction, or that the property is a locus of a grievance, is insufficient. The rights asserted must arise under the Land Act, or concern title, allotment, use, or possession in the sense contemplated by the Act. [13] The structure of the Land Act 2010 reinforces this interpretation. While section 73 serves as the general jurisdictional provision, the Act also specifies, in various other provisions—such as sections 18(3), 20(2), 22, 36(3) and (4), and 72—the particular courts competent to adjudicate certain categories of disputes. These include disputes concerning allocation, consent to transfer, cancellation of leases, and similar matters. These provisions reflect a broader legislative scheme under which disputes deriving from statutory rights or obligations in land are reserved for the specialist land courts, whether at the national or district level. [14] Although the Act permits concurrency of jurisdiction between the Land Court and the District Land Courts, that concurrency does not extend to courts of general jurisdiction, such as the Commercial Division of the High Court. Nor does the concurrent jurisdiction of the Land Court and District Land Courts imply that those courts possess a residual jurisdiction over any dispute involving land. A claimant who brings proceedings in the Land Court must demonstrate that the claim, as formulated, falls within the land disputes envisaged by the Land Act. [15] The Land (Amendment) Act 2012 did not transform the jurisdictional scope of the land courts. Rather, by inserting the word “all,” it reinforced the comprehensive nature of their existing jurisdiction in respect of land matters. It did not extend that jurisdiction to encompass disputes of a commercial or contractual nature which are only incidentally connected with land. The legislative purpose was to consolidate the authority of the land courts in matters genuinely implicating land rights, not to create a general forum for all disputes involving land in any capacity. [16] Accordingly, when considering the jurisdictional competence of the Land Court in a particular case, the analysis must begin with the character of the right being asserted. Is it a right arising from the Land Act or a claim to title, possession, occupation, or use of land in terms of that statute? Or is it a right arising from some other source, such as contract, delict, or equity, where land is incidental to the real gravamen of the dispute? The relief sought may further assist in characterising the claim. Where a claimant seeks declaratory or vindicatory relief, or a challenge to a lease or transfer under the Act, the matter will ordinarily fall within the Land Court’s jurisdiction. But where the relief sought is damages, restitution of price, or cancellation of a contract, the claim is likely to fall outside the purview of the Land Act and within that of the general courts. [17] This Court’s decisions in Lephema v Total Lesotho (Pty) Ltd and Others C of A (CIV) 36/2014 and Moletsane v Thamae C of A (CIV) 23/2017 are instructive in this regard. In Lephema, the Court held that not every dispute touching on land belongs in the Land Court. Where the central issue lies in the enforcement or cancellation of a commercial agreement, even if land is involved, the matter properly lies within the jurisdiction of the Commercial Court. In Moletsane, by contrast, the Court affirmed that where the claimant asserts a statutory entitlement as an allottee or owner under the Land Act—such as a claim in rei vindicatio or a declaratory action to protect title—the claim is squarely within the Land Court’s jurisdiction. [18] The lesson from these decisions is clear: jurisdiction must be determined by the legal character of the claim, not by superficial reference to its subject matter. The courts must remain vigilant not to conflate the factual involvement of land with the legal substance of a dispute. In that way, the integrity of the statutory jurisdiction of the land courts, as delineated by Parliament, is preserved, and forum-shopping or jurisdictional overreach is avoided. Consideration of the appeal [19] The key to resolving the present appeal lies in carefully examining the pleadings. It is well settled that a court's jurisdictional competence must be ascertained from the founding papers alone: Gcaba v Minister for Safety and Security 2010 (1) SA 238 (CC). The question is not whether the claim is likely to succeed but whether, on the face of it, it falls within the jurisdiction of the court seized with the matter. [20] In the present case, it is evident from the respondent’s originating application that his complaint lies in what he alleges to be a breach of familial understanding—an arrangement whereby his sister would sell the land and remit the proceeds to him. The second power of attorney authorised the first appellant to transfer rights to the third appellant without mentioning a sale. However, the claim for M200,000.00 as market value, alternatively cancellation of transfer and mortgage, stems from the alleged failure by the first appellant to honour their internal understanding. [21] That understanding was not reduced to a written agreement nor framed as a formal contract of sale. Nonetheless, it is equally clear that the essence of the complaint is not that the respondent is asserting a presently subsisting title—rather, he is aggrieved that the transfer occurred without his consent or against his expectations regarding proceeds. [22] Although the learned judge considered this to be a vindicatory claim, we find that this characterisation does not accord with the substance of the pleadings. The respondent does not dispute that he authorised the transfer of rights. Rather, his grievance is with what transpired thereafter—namely, that the purchase price was not remitted to him. That is a personal claim, sounding in money. It is not a real claim for recovery of property. [23] Moreover, the respondent sought compensation for the market value of the land, failing which he sought cancellation. But he made no direct assertion that the transferees were without good title or acted fraudulently. In those circumstances, the relief sought does not squarely fit within the ambit of a vindicatory claim in terms of the Land Act. [24] In Lephema (supra), this Court clearly distinguished disputes about title from those involving the performance of obligations arising from agreements. That boundary must be respected to avoid institutional confusion and jurisdictional overreach. Disposition [25] We accordingly find that the dispute between the parties does not concern “a right to land” in the sense contemplated under section 73 of the Land Act 2010 but instead concerns a complaint about a transaction alleged to have occurred in breach of an intra- familial agreement. [26] The fact that land was involved does not convert the dispute into one about title. On a proper characterisation, the claim arises out of a relationship of a personal and commercial nature, as contemplated in Rule 129 of the High Court Civil Procedure Rules 2024. It ought to have been instituted in the Commercial Division of the High Court. [27] The court a quo thus erred in dismissing the objection to jurisdiction. The appeal must therefore succeed. Order [28] In the result, the following order is made: [a] The appeal is upheld. [b] The order of the court a quo is set aside and substituted with the following: “The preliminary objection is upheld. The application is dismissed for want of jurisdiction.” [c] There shall be no order as to costs in this Court, regarding the familial nature of the dispute. __________________________ K. E. MOSITO PRESIDENT OF THE COURT OF APPEAL I AGREE I AGREE _________________________ P MUSONDA ACTING JUSTICE OF APPEAL _________________________ M H CHINHENGO ACTING JUSTICE OF APPEAL FOR THE APPELLANT: ADV S S TŠABEHA FOR RESPONDENT: ADV K A MARITI 12