Nyofane v Lelosa (CIV/A 18 of 80) [1982] LSCA 16 (17 March 1982)

IN THE HIGH COURT OF Lesotho In the Appeal of : CIV/A/18/80 ISAAC NYOFANE Appellant v SELLO LELOSA Respondent J U D G M E NT Delivered by the hen. Mr. Justice M. P. Mofokeng on the 17th day of March, 1982. In this appeal the dispute centres around respondent's land situate at Litsepheng. both parties claim ownership of this land, and the trial Court had to determine the dispute in accordance with the evidence produced before it. The trial Court found for the appellant and so did the Central Court while the Judicial Commissioner's Court reversed the findings of both the lower Courts. It is against the decision of the Judicial Commissioner's Court that this matter is now before this Court. In this judgment I shall simply refer to the parties as they were referred to in the trial Court, namely, plaintiff (Respondent) and defendant (Appellant) respectively. The plaintiff described the land in dispute as "formerly belonging to Lechesa Pelanyana. To the west ....... there is a hillock that runs in a northerly direction and to the east ...... lies that of morena Sheaepane." The defendant /described - 2 - described his land as the one he had previously disputed, and on each occasion had Judgment in his favour, with Makhetla (P. W.1) and Sheaepane (P. W.3) respectively. He continues": "There is no hill separating this land. The hill is on the Western side of the field (land). My land is on the Eastern side of the hill and next to the land lies that of Sheaepane." Makhetla Lelosa says that the land which he and the defendant previously disputed was situate on the Western side of the hill whereas the land now in dispute is on the Eastern side of the hill. He says he represented The chief when the land presently in dispute was allocated to the plaintiff. He says that the same land that he and the defendant had a dispute about is also the same land over which defendant and Sheaepane subsequently had a dispute, the subject matter in J. C. 6/73. Lechesa Pelanyana says that the land allocated to the plaintiff was his from 1967-77 when thereafter he handed it back to chief Sheaepane. He says that land is near that of chief Sheaepane and there is a hill near it." He says that plaintiff did not dispute it with anybody neither did defendant dispute with him (the witness). Chief Sheaepane says that the land in dispute was allocated to the plaintiff and formerly it belonged to the family of "respondent's (defendant's) sister 'Makalimo Matsela Nyofane in 1967. The land was taken away from her on the abolition of "Lipaballo" by writing a letter of deprivation. Thereafter it was allocated to Lechesa Pelanyana who subsequently surrendered it. It was thereafter allocated /to the - 3 - to the plaintiff. He says that the defendant's land was allocated to Hlabana (not called as a witness) who was ploughing it. He says that before the defendant was deprived of that land, he had been given notice to discontinue ploughing it. when the defendant had been summoned to come to him (chief Sheaepane) the former did not turn up and in his absence he was deprived of that land. Upon inquiry by the defendant, through his chief, defendant was invited so that he could be shewn records in the office. He says that the land he and defendant subsequently disputed was the one which had been allocated to Hlabana. He says plaintiff's land is separated by a hillock. It was the land allocated to Hlabana which was the subject matter in J. C. 6/73 in which the Judicial Commissioner held that the defendant had been wrongfully deprived of his land without sufficient notice of such intention being given to him. That dispute had nothing to do with present one before Court. That was plaintiff's case. The defendant, after describing the locality of his land and land mark features, states that his land is "not separated by anything." He says that the messenger who executed the judgment (probably in J. C. 6/73) found the land "undivided". He states, when asked by the Court, that 'Makalimo (D. W.3) has no field "near the hill". After the said judgment he had received no notice from Sheaepane. Matlamela Motsoene deposes that the field in dispute belongs to the defendant who previously disputed it with Makhetla Lelosa and the Court found in favour of the defendant. The same land was subsequently a subject of dispute between the defendant and chief Sheaepane and again judgment was /given - 4 - given in favour of the defendant. It was again disputed by one Thelang against the defendant with the same results as previously in other cases. He says that he "placed" the defendant on that land in 1947. He was surprised that the plaintiff was disputing it with the defendant. He says that to the west of the defendant's land there is a hill. On the north-west is a land belonging to one Makhetso (defendant's wife). The disputed land is on the "Eastern side of the hill" and this is the "one which the Court found for respondent (defendant) against Sheaepane. Lefu Moqa simply deposes that the land in dispute is "separated by a hill" and anyone who says anything to the contrary is not being truthful. He says that he was present when the land was awarded the defendant "in execution." 'Makalimo has no land in that area, 'Makalimo Nyofane deposes that she never received any letter from chief Sheaepane and anybody who says anything to the contrary is lying. She describes hew this land was used by the members of the family from Mpotjo to heki and then to the defendant. Her field which was seized by chief Sheaepane was situate at Moloko, far from that of the defendant. She has no land near Sheaepane's but that of the defendant is. She has no land near a ridge. She says that defendant's land is "divided by a donga near the hill and it runs along these lands." She denied that defendant's wife Makhetso owns any land. This concludes the defence's case. however, the trial Court for reasons which are not stated on the record before me allowed plaintiff to call two more witnesses. /Tlali - 5 - Tlali Nyofane is the first brother of the defendant. He says that the disputed land "belong to heki." He says that the land to the East of the hill belongs to 'Makalimo and the one to the Vest to 'Makhetso. He did not know the land over which the defendant and chief Sheaepane had a dispute, but there was such a dispute. He conceded that he had lied when he had said that the land had been allocated 'Makalimo by chief Motsoene. Mohapenyane Nyofane is a younger brother of the defendant. He says after the death of heki the land was handed to his elder brother Matsela (the late husband to 'Makalimo). The allocation had been done by chief Letsie. 'Makalimo was not being truthful when she said that she did not own that land. He says 'Makalimo's land is on the Eastern side of the hill while that of the defendant is on the Western side. He says "I saw the Court messengers at this field and recognised that it was the one he disputed with Sheaepane." An inspection in loco was held and it is there recorded what took place and there is a general agreement about the locality of the land except that defendant stated that his land extended by 15 feet beyond whore plaintiff said his ended. about this inspection in loco the trial Court said : "On 24. 1. 81 I conducted an inspection in loco of the land to the North-West of the hill to ascertain hew it is connected to the portion on the Eastern side of the hill. I found that on the North there is a strip which undoubtedly joins these two portions and nobody would argue that. The portion on the West appears to have been ploughed by someone else . " The importance of this finding is that the two lands are /in fact - 6 - in fact a single unit with no divisions as some witnesses purported to describe. It is further argued that the decision in J. C. 6/73 is vague as it does not describe with precision the boundaries of the land which was in dispute, I do not think that that is correct. It was unnecessary for that Court to elaborate the precise details of the land involved since there was only one such land. The trial court found that that piece of land involved in J. C. 6/73 now had one portion of it allocated to somebody else by chief Sheaepane and that in doing so the xxxxxxx had not been given proper notice, in terms of the law, to vacate it and instead the notice was given to a wrong person. The trial Court could not, therefore, be faulted when it held that the land presently in dispute was previously held to belong to the plaintiff. It is against that background that the evidence of chief Sheaepane cannot be looked upon as being neutral. He had a score to settle with the plaintiff. As for the relations of the defendant who gave their evidence so belatedly their motives for doing so (and out of turn so to speak) is rather obscure. Whatever their motives, the procedure followed by the trial Court was most unusual even for that Court. however, and since the trial Court reached its decision on a different point, it was not necessary to have analysed the evidence of these witnesses. But since it would seem that the learned Judicial Commissioner, having thought that the witnesses1 evidence was crucial to the decision of the case, did not consider it necessary to go into that aspect of the matter I thought it was only fair to shew briefly that their evidence was for from faultless and so readily /acceptable - 7 - acceptable to tilt the scales in favour of the plaintiff. The plaintiff is in possession of a certificate styled "Form 'C'". It is now settled, through the decisions of this Court, that the mere possession of such a certificate does not per se confer ownership in the land mentioned therein. (Majoro v Sebapo, 1981(1) LLR. 150). Similarly in the present case the trial Court was not impressed by the mere production of such a certificate. The trial Court, having arrived at the conclusion that the land in dispute had previously been awarded the plaintiff it did not bother to go into the question of the conflict of evidence. It was not necessary in the circum- stances. I find myself unable to disagree with it. It, therefore, becomes quite unfair for the learned Judicial Commissioner to attack the trial Court's decision on the ground that it had misdirected itself on the facts and made no definite findings thus affording himself an opportunity of reviewing the whole of the evidence afresh. The absurdity of this encroachment is that the learned Judicial Commissioner himself arrived at a conclusion that two different pieces of land were involved whereas the trial Court, which held an inspection in loco found that there was only one piece of land involved; it also varied the trial Court's judgment to simply read "Judgment for appellant (defendant) on the land on the Eastern side of the hillock." Its boundaries are not stated. The judgment of the trial Court came on appeal before /Tsifalimali - 8 - Tsifalimali Central Court, Its Judgment in dismissing defendant's appeal, was very brief and to the point, namely, that there had been no evidence to prove that the land in dispute was a different one from that disputed in J. C. 6/73. I would not disagree. In my view of the matter the trial Court arrived at a Just decision considering the suspicions circumstances revealed in this matter and that the learned Judicial Commissioner erred in setting aside, not only the trial Court's decision but also that of the Tsifalimali Central Court which had confirmed it on appeal. This appeal, therefore, ought to be upheld with costs, in all the Courts, and it is accordingly so ordered. J U D GE 17th day of March, 1982 For Applicant : Mr. K. Sello For Respondent : Mr. C. Maqutu