Rametse and Another v Attorney General and Others (CIV/APN 350 of 86) [1990] LSCA 138 (20 August 1990)

CIV/APN/350/86 IN THE HIGH COURT OF LESOTHO In the Application of : NTSUKUNYANE RAMETSE JUBILE TSOSANE 1st Applicant 2nd Applicant and THE ATTORNEY GENERAL MINISTRY OF INTERIOR THE TOWN CLERK LIKETSO MASUPHA MOSOLA TSOSANE MAKEOANE MAJORO 1st Respondent 2nd Respondent 3rd Respondent 4th Respondent 5th Respondent 6th Respondent J U D G M E NT Delivered by the Hon. Mr. Justice B. K. Molai on the 20th day of August, 1990. The applicants herein have instituted, before the High Court, an ex-parte application in which they seek, against the Respondents,the following order:- "1. That a Rule Nisi be and is hereby issued calling upon the Respondents on a date to be determined by this Honourable Court to show cause (if any) why:- (a) The 6th Respondent shall not be restrained forthwith from developing a site, which is a 2/ portion portion of second Applicant's field situate at NALEDI at Ha-TSosane in Maseru urban Area and the site is an extent 61m x 31m x 59.7m x 31.8m; (b) The 6th Respondent shall not be ordered to remove his poles from the said site; (c) Why the 1st Applicant shall not be issued with a lease for the aforesaid site; (d) The respondents shall not be ordered to pay costs of this application. 2. Granting t he Applicants such further and or alternative relief. 3. That prayers 1(a) operate with immediate effect as an interim o r d e r ." It is, perhaps, worth mentioning that when the application was first placed before m e, I read through the motion papers and noticed that although in their founding affidavits the applicants averred that the site in question had been lawfully allocated to the first applicant, no certificate of allocation as proof thereof had been annexed to substantiate the averment. It was clear to m e, therefore, that t he application would be strenuously opposed and it could not be fair to grant the order ex-parte. In the circumstances I ordered that t he motion papers be served on the Respondents in the normal manner. 3/ After the - After the papers had been duly served on all the Respondents only the 6th Respondent filed notice of intention to oppose and the answering affidavit. The other Respondents did not intimate intention to oppose the application. It may,therefore, be safely assumed that they are prepared to abide by whatever decision will be arrived at by the court. It is not really disputed, in the affidavits, that prior to 1979 the second applicant was the lawful owner of an agricultural land situated at a place known as NALEDI here in Maseru. He relinquished a portion thereof for re-allocation as residential site. According to the applicants, in October 1979, the residential site was lawfully allocated to the first applicant. He was duly issued with a Form C, certificate of land allocation. Following its allocation to him the first applicant errected poles around the site. However, the 6th Respondent also subsequently errected poles around the same site. The applicants further averred that the Form C which had been issued to the first applicant went missing in 1983. When he noticed that other poles had been errected around the site, the subject matter of this dispute, the first applicant reported to the second applicant and the chief who made him a letter directing him to the third Respondent's office where he met the fourth Respondent, an employee of the second Respondent. Investigations were then mounted in the 4/presence presence of the parties, the fifth Respondent and two police officers by the fourth Respondent who ultimately decided that the site belonged to the 6th Respondent. The applicants were unhappy with the decision, hence the institution of these proceedings, against the Respondents, for an order as aforementioned. In his affidavit the 6th Respondent avers that the site, the subject matter of this dispute, was lawfully allocated to him on 15th September, 1979. He has annexed a Form C, certificate of land allocation, as proof thereof. The 6th Respondent concedes that, following its allocation to him, he errected poles around the site. He denies, however, that the first applicant had, at the time errected any poles on the site. According to him it was only in 1986 that the first applicant removed his (6th Respondent's) poles and replaced them by his (first applicant's). He then decided to fence the site. Whilst he was in the process applicants' attorney of record came and claimed that the site belonged to the first applicant to whom it had been lawfully allocated in 1983. He dis- puted the claim and went to the first applicant himself about the matter. The latter was, however, not prepared to discuss the matter with him. He and the fifth Respondent then went to the third Respondent's office where they met the fourth Respondent. The sixth Respon- dent concedes that the fourth Respondent carried out 5/ investigations ...... investigations as alleged by the applicants and it was found that the site, the subject matter of this dispute, belonged to him and not the first applicant. He contended, therefore, that the application should be dismissed with costs. The salient question for the decision in this case is, in my opinion, whether the site, the subject matter of this dispute, was lawfully allocated to the first applicant or the 6th Respondent. Notwithstanding their averments that the site was lawfully allocated to the first app- liant in October, 1979 and, therefore, belonged to him, it is significant that the applicants have failed to produce any Form C, certificate of land allocation, as proof thereof. If it were true that the first applicant's Form C went missing in 1983 and could not, therefore, be annexed to the motion papers, as the applicants wish the court to believe, they could have easily caused the official register of land allocation to be produced as proof that in 1979 the first applicant was, indeed, lawfully allocated the site. They have failed to do so. The allegation that the firs,: applicant's Form C got lost in 1983 is, in my view, un- convincing and certainly no proof of land allocation. The 6th Respondent has, however, produced a Form C, certificate of land allocation, which is, in my view, conclusive proof that the site had, on 15th September 1979, been lawfully allocated to him. For the sake of argument, I shall however, take it that in their affidavits 6/ the applicants the applicants were deposing to the truth when they averred that the site,the subject matter of this des- pute, was allocated to the first applicant in October 1978. Assuming the correctness of my view that the site was allocated to the 6th Respondent on 15th September, 1979, it must be accepted that when in October 1979 it was allocated to the first applicant the site already belonged to the 6th Respondent and was, therefore, not available for re-allocation. That being so, it is clear- that the answer to the question I have earlier posted viz. whether the site, the subject matter of this dispute, was lawfully allocated to the first applicant or the 6th Respondent must be in favour of the latter. In the premises, it is obvious that the view t h e: I take is that this application ought not to succeed and it is accordingly dismissed with costs. B. K. MOLAI JUDGE. 20th August, 1990. For Applicant : Mr. MPhutlane For Respondent : Mr. Matete.