Sofonia v Lesotho Defence Force and Others (CIV/APN 417 of 98) [2000] LSCA 27 (8 February 2000)

CIV/APN/417/98 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e en :- ' M A P A L E SA S O F O N IA A P P L I C A NT A ND L E S O T HO D E F E N CE F O R CE ' M A P U S E L E T SO S O F O N IA B O O MO S O F O N IA 1ST 2ND 3RD R E S P O N D E NT R E S P O N D E NT R E S P O N D E NT J U D G M E NT Delivered by the H o n o u r a b le M r s. Justice K. J. G u ni on the 8th d ay of F e b r u a ry 2 0 00 T he subject matter of this application h as b e en dealt w i th by this court, in C I V / A P N / 2 8 2 / 97 w h i ch w as finally d e c i d ed in M ay 1 9 9 8. T he facts as g l e a n ed f r om the p a p e rs filed of record in this matter, s h ow this court that after the death of o ne ' M U SO E L L I OT S O F O N I A, w ho w as a m e m b er of L E S O T HO D E F E N CE F O R C E, there w e re a f ew w o m en claiming portions of his estate as intestate heiresses, on the g r o u nd that they w e re legally m a r r i ed to the late ' M U SO E L L I OT S O F O N IA during his lifetime. T he dispute b e t w e en the m a le relative of the deceased and all those w o m en w ho claimed to h a ve been married to the deceased, w as finally resolved by this court, in the determination of their respective rights in C I V / A P N / 2 8 2 / 9 7. T he applicant herein describes the applicant in C I V / A P N / 2 8 2 / 97 as the deceased's concubine. S he alleges that she married M U SO E L L I OT S O F O N IA on or about 1 9 97 by Sesotho customary rites. S he perhaps presumes to be the only wife or at least the only w o m an legally married to the deceased as she further alleges an agreement with the 2nd Respondent herein [ w ho w as the 1st respondent in C I V / A P N / 2 8 2 / 9 7] to the effect that she is the deceased's w i d o w. This alleged agreement is denied in the A n s w e r i ng Affidavit in w h o se reply this applicant averred that evidence to establish the said agreement, w o u ld be led. There w as no such evidence led. T he 2nd respondent has no authority to decide the issue of w ho is the legal wife and therefore w i d ow of the deceased. T he applicant in this matter m u st have k n o w n, and in fact k n e w, that there w e re proceedings before this court to determine the heir and finally distribute the estate of late ' M U SO E L L I OT S O F O N I A. [see Paragraph 5.3 F o u n d i ng Affidavit]. S he appears to have elected to rely on the alleged agreement between herself and o ne of those w o m en w ho claimed portions or perhaps the w h o le of the estate of the deceased. T h at alleged a g r e e m e nt ( w h i ch is d e n i ed in the a n s w e r i ng affidavit) is b e t w e en this applicant a nd the w o m an w ho w as the 1st respondent in C I V / A P N / 2 8 2 / 97 n ow 2nd respondent herein. T he applicant in this matter, is directly challenging the t e r ms a nd portions of the court order m a de in C I V / A P N / 2 8 2 / 9 7. This applicant, b e i ng a w a r e, that there w as a dispute as regards the rightful heiress to the estate of the late ' M U SO E L L I OT S O F O N I A, sat b a ck a nd w a t c h ed the other claimants fight for their rights. S he n ow seeks to upset the decision m a de by the court in determining those rights. S he a p p r o a c h ed this court by w ay of an ex-parte application, h o p i ng to m o st unpleasantly surprise those beneficiaries behind w h o se b a c ks she h ad intended to h a ve that court order granting t h em those benefits reversed. This applicant claims to h a ve b e en s h o c k ed by the said court order in C I V / A P N / 2 8 2 / 9 7. S he w as not a party in those proceedings. W h y? M ay be because she claims to be the only w o m an w ho w as lawfully married to the deceased. This is not clear especially because the alleged a g r e e m e nt that she is the deceased's w i d ow a nd therefore entitled to his death benefits w as b e t w e en her a nd o ne of the various claimants. It is not clear w h e t h er or not the a g r e e m e nt w as m a de on behalf of the S O F O N IA family. On w h o se authority w as the a g r e e m e nt m a de w h en a m a le relative of the deceased is n ow being sued. N ow that the court h ad o n ce a nd for all decided those claims of various w o m e n, this applicant b e h i nd their b a c ks seeks an order w h i ch is in direct conflict w i th the court order m a de in C I V / A P N / 2 8 2 / 9 7. T h at court order is still in force. T he issuing of yet another court order, will bring a b o ut the situation w h e re there will be t wo court orders w h i ch are b o th valid a nd in full force but directly in conflict with e a ch other. T h e re are decent a nd appropriate m e t h o ds of dealing with valid court orders without covertly u n d e r m i n i ng the authority of the court. By issuing a court order w h i ch h as the effect of reversing the existing valid court order, this court will be in conflict w i th itself. It is i m p r o p er to a p p r o a ch this court by w ay of an ex-parte application w h i ch seeks to overturn the court order m a de by o ne of the j u d g es in this u n c o n v e n t i o n al fashion - not being r e v i e w ed or on appeal. T he increase in the n u m b e rs of the j u d g es is truly for expeditious h a n d l i ng of cases a nd resolution of disputes b e t w e en parties. In this matter these j u d g es s e em to h a ve b e en set up on a direct collision course. O ne j u d ge h as m a de out this court order w h i ch is b e i ng sought to be c h a n g ed without being r e v i e w ed or appealed against in a n o r m al w a y. T he H i gh C o u rt c a n n ot sit as a court of appeal overtly or otherwise to c h a n ge its o wn decisions. T h is applicant k n ew that there w e re legal proceedings before this court, c o n c e r n i ng the distribution of the estate of the late ' M U SO E L L I OT S O F O N I A. T h is applicant, claiming to be the wife of the deceased, m u st h a ve b e en in no doubt, that the decision to be m a de in those proceedings, w as definitely g o i ng to affect her interests. T he a v e r m e nt that she h ad m a de an a g r e e m e nt w i th at least o ne of the claimants, leaves me absolutely certain that she f o r e s aw the likelihood of the challenge to her claim of right to be the w i d ow of the d e c e a s ed a nd therefore heiress to his estate. In those circumstances, she w as obliged in t e r ms of Section 8 (5) H i gh C o u rt R u l es [Legal N o t i ce N o .9 of 1 9 8 0] to deliver, notice of application by herself for court's leave to o p p o se that application. S he c a n n ot be heard n ow to a p p r o a ch this court in this fashion, a nd to ask the court to m a ke yet another court order reversing directly or indirectly its previous valid order w h i ch is still in force. T h is court cannot m a ke an order in conflict w i th that court order in C I V / A P N / 2 8 2 / 9 7. T h at C o u rt O r d er m u st be respected. F A KO G R I F F I T HS a nd t he C O M M I S S I O N ER of P O L I CE C of A ( C I V) N o. 9/91 (unreported) T he complaint, by the d e p o n e nt of the a n s w e r i ng affidavit, that this applicant should not h a ve a p p r o a c h ed this court in this fashion, but that she s h o u ld h a ve joined in C I V / A P N / 2 8 2 / 97 is a valid one. T he arrogant reply by this applicant to the effect that this applicant is free to c h o o se a ny m e t h od that pleases her a nd s e ek a ny relief o f h er o wn choice is also correct. T he difference will be in the result. T he m e t h od c h o s en by this applicant did not help her o wn case. S he c h o se to go the w r o ng w ay in the exercise of her f r e e d om of c h o i ce to a d o pt her o wn style w h i ch requires this court to u n d e r m i ne its o wn authority. T h at is improper. T h is court c a n n ot s u c c u mb to that. T he application is therefore dismissed w i th costs. K . J. G U NI J U D GE 9th F e b r u a ry 2 0 00 F or A p p l i c a nt : M r. Mafantiri F or 2nd & 3rd R e s p o n d e n ts : M r. N a t h a ne