Phooko land dis­pute back in court

Lesotho Times - - News - Tefo Tefo

THE land dis­pute be­tween for­mer Min­istry of Pub­lic Works and Trans­port prin­ci­pal sec­re­tary Le­bo­hang Phooko and J&M Prop­er­ties (Pty) Ltd rages on, with the Court of Ap­peal order­ing that the case be tried afresh in the High Court.

The dis­pute is over a piece of land in Maseru In­dus­trial Area, with both par­ties claim­ing to be its le­git­i­mate own­ers.

The wran­gle es­ca­lated in De­cem­ber 2013 when Mr Phooko wanted to de­velop the site but was de­nied en­try by se­cu­rity guards em­ployed by J&M Prop­er­ties.

Fol­low­ing the scuf­fle, Mr Phooko filed an ur­gent ap­pli­ca­tion be­fore the High Court (Com­mer­cial Divi­sion) for the or­der “in­ter­dict­ing and re­strain­ing re­spon­dent from in­ter­fer­ing with ap­pli­cant’s de­vel­op­ment of his site as held by lease num­ber 12281-010, Hoohlo In­dus­trial, Maseru ex­cept by due pro- cess of law”.

Read the ap­pli­ca­tion: “Di­rect­ing re­spon­dent to re­move its se­cu­rity guards, ve­hi­cles, plant, ma­chin­ery, fenc­ing, any ap­pa­ra­tus or other from the afore­said prop­erty.”

How­ever, High Court judge, Jus­tice Le­bo­hang Mo­lete, dis­missed Mr Phooko’s ap­pli­ca­tion. The for­mer PS ap­pealed the judg­ment, ar­gu­ing that Jus­tice Mo­lete “erred and mis­di­rected” him­self when de­ter­min­ing is­sues that were not sought through a no­tice of mo­tion.

Court of Ap­peal pres­i­dent, Jus­tice Kananelo Mos­ito, on Fri­day or­dered the case to be tried afresh be­fore a judge other than Jus­tice Mo­lete.

“The con­clu­sion to which I have come is that this ap­peal should ac­cord­ingly suc­ceed on the ba­sis that the court a quo mis­di­rected it­self by de­ter­min­ing is­sues that were not be­fore it, thereby mak­ing a de­ci­sion thereon and dis­miss­ing the ap­pli­ca­tion on the ba­sis thereof,” Jus­tice Mos­ito noted.

“This court was urged by the learned coun­sel that in the event the court de­cides to re­mit the mat­ter to the court a quo, an or­der should be made that this mat­ter be heard by a dif­fer­ent judge.”

He added: “In the re­sult, I would grant the fol­low­ing or­der in this ap­peal: (a) The ap­peal suc­ceeds. (b) The mat­ter is re­mit­ted to the High

Court for hear­ing by a dif­fer­ent judge.” Lay­ing the back­ground to the case, Jus­tice Mos­ito nar­rated how the dis­pute landed in the courts of law.

He said: “The facts that gave rise to this ap­peal are not re­ally in dis­pute.

“The ap­pel­lant (Mr Phooko) de­poses that he is the law­ful owner of plot num­ber 12281-010 Hoohlo in­dus­trial, Maseru Ur­ban Le­sotho.

“He avers that he ac­quired the rights and in­ter­est in that plot from one Mrs Flora ‘Ma­m­a­sitise Se­leso in 2012.

“When he at­tempted to take oc­cu­pa­tion of the plot, he was met with re­sis­tance from re­spon­dent’s se­cu­rity guards on the plot at gun­point to stop ap­pel­lant and his hired con­struc­tion com­pany, to start de­vel­op­ing this plot. “This was on 2nd to 5th De­cem­ber 2013.” He also nar­rated the re­spon­dent, J&M Prop­er­ties’ de­fence in the mat­ter.

“For its part, the re­spon­dent’s aver­ments are that, the plot in ques­tion has been bought by the re­spon­dent for the sum of M400 000 from ‘Ma­m­a­sitise Se­leso.”

But Mrs Se­leso is al­leged to have “re­fused to cause trans­fer of the rights and in­ter­est to plot num­ber 12281-010 to re­spon­dent, claim­ing that she had not been paid.”

Jus­tice Mos­ito con­cluded by order­ing the High Court to solve the dis­pute be­tween the two par­ties.

The Court of Ap­peal pres­i­dent was sit­ting along­side Jus­tices ‘Mase­foro Ma­hase and Phillip Mu­sonda.

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