IN THE LAND COURT OF LESOTHO

Transcription

1 IN THE LAND COURT OF LESOTHO Held at Maseru LC/APN/170/2014 In the matter between: MAMOHAU NKUNDLANE MWANGI NELIA JOYCE RADFORD 1 ST APPLICANT 2 ND APPLICANT And LEROTHOLI JOSIAS MASUPHA THE LAND ADMINISTRATION AUTHORITY 1 ST RESPONDENT 2 ND RESPONDENT CORAM: S.P. SAKOANE AJ HEARD: 18 MAY, 2015 DELIVERED: 10 JUNE, 2015 SUMMARY Preliminary objection to the jurisdiction to cancel a contract of disposal of interest in land whether the matter is in relation to dispute over claim of title to land or involves a dispute over a business contract jurisdiction of Land Courts in terms of Land Act, section 73 versus of the Land Act of the High Court (Commercial Division) Rule 5(1) of Commercial Court Rules, 2009.

2 ANNOTATIONS CITED CASES: LESOTHO Mafube Investment Holdings (Pty) Ltd v. Letoao And Others LC/APN/137/2014 Masoabi And Another v. Mofelehetsi CIV/A/10/2014 Mphutlane v. Seoli And Others LC/APN/18/2014 Lephema v. Total Lesotho (Pty) Ltd And Others C of A (CIV) No.36/2014 ENGLAND Hill v. William Hill (Park Lane) Ltd [1949] A.C. 530 (H.L) SOUTH AFRICA Port Elizabeth Municipal Council v. Port Elizabeth Electric Tramway Co Ltd 1947 (2) SA 1269 STATUTES: Commercial Court Rules, 2009 Interpretation Act No.19 of 1977 Land Act No.8 of 2010 Land (Amendment) Act No.16 of 2012 Land Court Rules, 2012 BOOKS: Sullivan R. (1994) Driedger on the Construction of Statutes, 3 rd Edition (Canada: Butterworths) 2

3 RULING ON PRELIMINARY OBJECTION I. INTRODUCTION [1] The applicants herein seek the following orders: 4.1 An order of this Honourable Court directing the 1 st Respondent to allow the Applicants reasonable access to the property as and when necessary for purposes of evaluation of the property by property appraisers and/or for purposes of inspection for potential purchasers. 4.2 That the memorandum of agreement of sale between the 1 st Respondent and the Applicants be cancelled by this Honourable Court. 4.3 That the certificate of consent sought by the 1 st Applicant and granted by the 2 nd Respondent to transfer the plot leased under No in favour of the 1 st Respondent be cancelled by this Honourable Court. 4.4 That the 1 st Respondent be ordered by this Honourable Court to pay to the 2 nd Applicant, the rentals to the tune of Forty (sic) Thousand (M40,000.00) per month, (subject to evaluation report yet to be submitted) calculated from the date on which the 1 st Respondent took occupation of the said plot to the date of his ejectment therefrom. 4.5 An order of ejectment from the plot leased under No against the 1 st Respondent. 4.6 That prayer 4.1 (sic) with immediate effect as Interim Court Order pending finalization hereof. 4.7 Costs of suit. 4.8 Further and alternative relief. 3

4 [2] The dispute revolves around an agreement involving the sale of developed property by the 1 st applicant to the 1 st respondent. The applicants are desirous that the sale agreement be cancelled, the status quo ante restored and the 1 st respondent ejected from the property. [3] The agreement was later amended in clause 2.3 to read: It is specifically recorded that the balance of the purchase price being Six Hundred Thousand Maloti (M600,000.00) shall become due and payable in full by the Purchaser to the Seller upon registration of the Deed of Transfer by both Parties, transferring the property to the Purchaser. [4] The property is in the physical possession of the 1 st respondent following Clause 3 which reads: The Seller hereby immediately terminates his interests in the said property and shall upon signature hereof pass to the Purchaser possession of the said property subject to compliance with sub-clauses 1.3 and 2.4 above, without detracting from any verifiable verbal agreement/s between the Parties in regard thereto. [5] Clause 1.3 merely refers to the Land Act No.12 of 2010 as the relevant law for issuance of a lease. Clause 2.4 provides that: It is specifically recorded that it shall be the responsibility of the Seller to secure the granting of the Ministerial Consent for the transfer of the property, the subject matter of this Agreement into the Purchaser s names and the same shall be surrendered to the Purchaser. It is further agreed that the Seller shall endeavor to secure the issuance of the Land Act Lease described in 1.1 and deposit the same with the 4

5 Purchaser in compliance with Sub-clause 1.3 supra of this Agreement. [6] The 2 nd applicant is a party to these proceedings because of a special condition in Clause 4 of the agreement that: It is specifically agreed by the parties that the Seller s sister Delea J. Radford by virtue of her financial interest and/or otherwise, shall be joined to this Agreement as co-seller and declare their commitment to be bound by the terms of this Agreement unconditionally II. THE COMPLAINT [7] The applicants complaint is that the property cannot be transferred to the 1 st respondent because: 3.13 Since then to date, despite being reminded severally by the Applicants through their Counsel of record, the 1 st Respondent neglected and or refused to pay for the stamp duty to enable the registration of the deed of transfer of the plot in his favour Due to refusal and or neglect by the 1 st Respondent to pay for the stamp duty for the registration of the deed of transfer in his favour, the said plot could not be transferred to him and the balance of the purchase price could not be paid by him, yet he continues to stay at the said plot and/or to use it for commercial purposes thereby gaining financially from it, even though he has not yet paid the full purchase price to the Applicants The refusal and or neglect by the 1 st Respondent to pay for the stamp duty in terms of the deed of sale between him and the Applicants amounts to repudiation of the deed of sale on the part of the 1 st Respondent. 5

6 3.16 The Applicants have accepted the said repudiation of the deed of sale by the 1 st Respondent and have communicated their acceptance to him via an electronic mail on the 28 th day of August 1014 (sic). Due to the fact that the plot is not yet transferred to the 1 st Respondent, the 1 st Applicant is and remains the rightful holder of title to that plot. She therefore has a clear right The 1 st Respondent never intended to be bound and comply with the deed of sale between him and the Applicants. He is therefore not a bona fide occupier. [8] The 1 st Respondent reacts by way of a special answer and then pleads over by denying totidem verbis the applicants complaint. The special answer is that: The jurisdiction of this matter falls within the commercial court in terms of the Commercial Court rules as it is a purely (sic) dispute over a commercial transaction. On this basis this application should be dismissed on account of improper forum shopping. III. ANALYSIS Submissions [9] Mr. Molati, for the 1 st respondent, contends that the matter falls within the 6 purview of the jurisdiction of the Commercial Court as articulated in Rule 5 (1) of the court. The Rule reads as follows: The business of the commercial division shall comprise all actions arising out of or connected with any relationship of a commercial or business nature, whether contractual or not This case, he submits, is a matter calling for a resolution of a dispute on whether or not the parties commercial agreement should be cancelled.

7 [10] Miss Khesuoe, for the applicants, counters by contending that since the dispute concerns a developed site over which the applicants plead that the agreement of sale and transfer have not been performed to conclusion, the matter concerns a land dispute in terms of section 73 of the Land Act, 2010 which provides: The following courts are established with jurisdiction, subject to the provisions of this Part, to hear and determine [all] disputes, actions and proceedings concerning land: (a) The Land Court; and (b) District Land Courts. [11] Great store was put in the word all between the words determine disputes which was inserted by the Land (Amendment) Act No.16 of The argument here being that by inserting that word, Parliament sought to put it beyond any doubt that any dispute involving a transaction in which land was involved should be dealt with by the Land Courts. On this basis, therefore, the interpretation of section 73 by the Court of Appeal in Lephema v. Total Lesotho (Pty) Ltd And Others C of A (CIV) No.36/2014 was no more applicable after the insertion of the word all. 7

8 Discussion [12] What seems to have triggered confusion as to the real extent of the jurisdictional powers of the Land Courts after the introduction of the amendment is the judgment of this Court in Masoabi And Another v. Mofelehetsi CIV/A/10/2014 (dated 21 August 2014) delivered by Mosito AJ. In that judgment, the learned Acting Judge reasons that the effect of the insertion of the word all is to confer the Land Courts with unlimited, original jurisdiction. With respect, I must disagree. [13] The Land Courts are creatures of statute. Their jurisdiction and powers are conferred and wholly defined by the statute. To that extent their jurisdiction is limited and it is subject to the provisions of Part XII of the Act. A careful examination and analysis of the Land Act, 2010 reveals that within their hierarchical relationship, the Land Court has concurrent jurisdiction with the District Land Courts. But this Court only exercises that concurrent jurisdiction upon leave being sought and granted or mero motu in terms of Rule 9 (2). The Land Court also has appellate and review jurisdiction over District Land Courts and expropriation of land by the Government. (See sections 28(3) and 52(d) of the Land Act, 2010) In 8

9 turn the District Land Courts enjoy review and appellate jurisdiction over administrative bodies charged with the administration of the Land Act and regulations promulgated thereunder. (See Mphutlane v. Seoli And Others LC/APN/18/2014 (dated November 2014)) paras [7] and [8] [14] The Lephema judgment cautions us that when enquiring as to what the expressions relating to land or concerning land entail under section 73, focus should be on the provisions of the Act and these expressions be interpreted in context. Hence the Court of Appeal has held that: [22] It is clear, in my view, that the Act is concerned (apart from the presently irrelevant matter of allocations unaccompanied by the grant of title to land), with title to land, derogations from title and rights which override title. Those expressions ( relating to land or concerning land ) are of wide and general import but they must be interpreted in their context so that the disputes to which they refer are disputes involving claims to title, claims relying on derogations from title or claims to rights overriding title. [15] The amendment merely puts it beyond any doubt, if ever there was such, (notwithstanding the transitional provisions in section 86 of the Act as to the jurisdiction of the Subordinate Courts and the High Court to complete hearing of land matters that are pending) that it is all disputes, actions and proceedings relating to land or concerning land that are amenable to the 9

10 jurisdiction of the Land Courts. Thus, the word all does not qualify the expressions relating to land or concerning land. It does not entail a deliberate change of expression with an effect of changing the intention of Parliament on the extent of the jurisdiction of the Land Courts under section 73 and other sections of the Land Act, (See Port Elizabeth Municipal Council v. Port Elizabeth Electric Tramway Co Ltd 1947 (2) SA 1269 (A) at 1279) The parameters of that jurisdiction is as expounded in the Lephema judgment. The interpretation of section 73 by the Court of Appeal is, in my respectful opinion, consonant with giving it a fair, large and liberal construction and an interpretation that best ensures the attainment of its objects. (See section 15 of the Interpretation Act No.19 of 1977) [16] My opinion is also informed by the presumption against tautology when interpreting legislation. Every word in a statute has a specific role to play in advancing the legislative purpose and should be given effect to. As explained by Viscount Simons in Hill v. William Hill (Park Lane) Ltd [1949] A.C. 530 (H.L) at 546: Although a Parliamentary enactment (like parliamentary eloquence) is capable of saying the same thing twice over without adding anything to what has already been said once, 10

11 this repetition in the case of an Act of Parliament is not to be assumed. When a legislature enacts a particular phrase in a statute the presumption is that it is saying something which has not been said immediately before. The rule that a meaning should, if possible, be given to every word in the statute implies that, unless there is good reason to the contrary, the words add something which would not be there if the words were left out. [17] It must be accepted that Parliament has reasons why it wished to include superfluous words. But such inclusion is only ex abundanti cautela to serve an intelligible purpose and to reduce possibility of arguments being raised which seek to unduly restrict the effective exercise of powers conferred. (See Sullivan R. (1994) Driedger on the Construction of Statutes Third Edition (Canada: Butterworths) pp ) Thus, the insertion of the word all in section 73 serves the purposes of intelligibility and avoidances of future misunderstanding that may result in the undue restriction of the jurisdiction conferred. It does not have the effect of unlimiting the jurisdiction of the Land Courts to hear every dispute involving land even if such be a dispute where no claim of title or derogation from title is made e.g. damage to crops, grazing animals on reserved pastures or driving into a fixed structure and knocking it down. 11

12 [18] An agreement involving the disposal of the seller s interest in the land in favour of a buyer remains a business transaction. Any dispute regarding its enforceability by specific performance or cancellation for breach does not involve claim of title to land as explained in the Lephema judgment. It is the type of dispute that falls within the remit of the High Court (Commercial Division) in terms of Rule 5 (1). (See Mafube Investment Holdings (Pty) Ltd v. Letoao And Others LC/APN/137/2014 dated 27 April 2015) [19] Since the prayers sought by the applicant revolve around the determination of breach of that contract and its cancellation, that is the main issue whose resolution must first be made by the competent court before the other reliefs can be granted. In that sense these other issues are subsidiary and remain ancillary and can only be considered after the clearance of the dispute on the status of the contract by the High Court (Commercial Division). 12

13 Disposition [20] The result is that the point of lack of jurisdiction is upheld in favour of the 1 st respondent. The application is dismissed with costs to the 1 st respondent. S.P. SAKOANE ACTING JUDGE For the Applicants: M.V. Khesuoe instructed by T. Fosa and Co. For the 1 st Respondent: L.A. Molati 13