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Mosarwa v Tjonga and Others (Civil Appeal No. 28 of 1994) [1995] BWCA 36 (12 July 1995)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO: 28/94
In the matter between:
MOFFAT GAETWESEPE KERAANTSWE MOSARWA     Appellant
and
HAMERO TJONGA & SIX OTHERS       Respondents
Mr. Attorney G. G. Komboni for the Appellant Mr. Attorney M. B. Marumo for the Respondents
JUDGMENT
CORAM:
T.A. AGUDA JA: W.H.R. SCHREINER JA: P.H. TEBBUTT JA:
TEBBUTT JA:
The genesis of this appeal is a dispute about a borehole at a place called Poloka in the Kweneng Administrative District, Botswana. Appellant says it is his; Respondents say it belongs to the 7th Respondent, the Kweneng District Council, to whom I shall refer as "the Council", but that they have the right to use it for the purpose of watering their cattle. As a result the Appellant brought in the High Court an application by way of notice of motion for an order declaring him the lawful owner of the borehole. He originally sought other relief as well i.e. declaring a

2 syndicate between him and the first six Respondents dissolved and ordering them, with their cattle, to move out of the borehole but he later abandoned these prayers, contenting himself only with his claim to ownership of the borehole.
The Respondents, who did not originally include the Council, opposed the application. As it has a substantial interest in the relief sought by Appellant, the Council was joined in the proceedings as 7th Respondent. As the affidavits filed by the parties gave rise to a conflict of fact, the matter went to oral evidence before Nganunu J. Having heard the evidence tendered by the parties, the Learned Judge dismissed Appellant's application with costs. Appellant now appeals to this Court against that decision.
The Appellant stated in his founding affidavit to his application that sometime in 1964 he applied for a borehole site to his Chiefs Kgosi Kgari Sechele of the Bakwena, who granted his application. He then applied to the relevant authority to have the borehole drilled and was asked to make a deposit of R200. On 28th January, 1965 he paid a deposit of R220 and a receipt for that amount was issued in his name. The borehole was, he said, drilled at Poloka. On 25 January, 1988, following an application by him on 16th September, 1969, a Water Right Certificate was issued to him Appellant said that after the borehole was allocated to him he formed a syndicate with the first six Respondents to share the maintenance and running costs of the borehole and for each to make an annual subscription in return for the right to water their livestock at the borehole. He averred that through the years the burden of running the borehole was shouldered by him almost single-handedly. In 1978 he suffered a stroke and became incapacitated. The borehole thereafter fell into a state of disrepair, due largely to the fact that Respondents did not pay then-subscriptions timeously and regularly. The borehole was running on a borrowed engine, the reservoir and trough were leaking and the engine room had no roof. On the 11th February, 1993 his Attorneys wrote to Respondents informing them of his intention to terminate the syndicate and

3 requesting them to move out of the borehole. As Respondents had not responded, be brought his application.
Respondents in their opposing affidavits, told a different tale. 3rd Respondent, Kuate Phuthegelo, said that in 1964 he proposed the idea of a borehole to 1st Respondent, Hamero Tjonga. They approached a government official, one Kenosi, for one who said they would stand a better chance of getting one if they formed a group. They then formed a group with Appellant and seven others. They were thereafter allocated a borehole that had already been drilled at Poloka "on the understanding that it would remain the property of the Government". Appellant was elected Chairman of the group, which was why most of the documents were in his name. The deposit of R220 was not Appellant's own money but was contributed by the whole group. The receipt for it was in the Appellant's name because he, as Chairman, made the actual payment. The deposit was not for drilling the borehole. That had already been done. It was for deepening it. To equip the borehole a loan was obtained from the National Development Bank sometime in 1967. The loan was to the Mosarwa Syndicate and was repaid by the group as a whole. Appellant was therefore never the owner of the borehole. Nor did Appellant single-handedly shoulder the burden of running the borehole. In feet he had not been contributing his share of the operating costs and the reason why the syndicate was using a borrowed engine was because they had contributed money for new one to Appellant's wife who was the syndicate's treasurer, and they did not know what she had done with the money.
Phuthegelo's allegations were confirmed by 2nd Respondent, Leo Mokoka, who attached to his affidavit a number of receipts issued by Appellant to him to show that he was contributing money as a member of the syndicate. One, for R40, was dated 28th January, 1965, the date on which Appellant paid the deposit of R220, allegedly out of his own pocket. The whole group had shouldered the financial burden of running the borehole over the years and he had done more in

4 the physical maintenance of it than anyone else as he spent more time at the borehole than anyone else.
Respondents also filed two other affidavits. One was by one Sebonego, a Senior Administrative Officer of the Council, to the effect that the borehole was inherited by the Council from the previous Colonial Government and was allocated to the syndicate for use by them subject to the Council's right to repossess the borehole should the need arise and subject to compensating the syndicate members for any improvements made by them. The other affidavit was by one Simon Sokwane, the Secretary to the Water Appointment Board of the Botswana Government, who said that the Water Right Certificate issued in Appellant's name had been issued in error and had the matter not been pending before the High Court, they would have communicated with Appellant to withdraw the certificate.
Appellant in reply denied Respondents' averments pointing out that the relevant documents were all in his name. He was to become the Chairman of the group, whose members he had approached, because the borehole was his. He denied that the Water Right Certificate had been issued in error.
It will be appreciated from the brief setting out of the allegations of the parties that there was a considerable dispute of fact, hence the need for oral evidence. That evidence was given on behalf of Appellant by Appellant himself, one Philip Mokoka and by Appellant's wife and on behalf of Respondents by 2nd Respondent, Leo Mokoka, and by Simon Sokwane.
It is not necessary for me to set out that evidence in detail. That has been done fully and exhaustively by Nganunu J. in his judgment in the Court a quo. That judgment contains a careful, well-reasoned and comprehensive analysis and assessment of the evidence. The Learned Judge was conscious of the fact that the events giving rise to the dispute started in the early 1960's and that lapses of memory could be due to the lapse of time and of the witnesses' advancing age,

5 especially in the case of Appellant who, as a result of his stroke in 1978, had become frail and incapacitated. He had therefore perforce to take a robust approach to the assessment of the evidence except where there appeared to him to be deliberate falsification. For instance, Appellant had said in his founding affidavit that he had applied for a borehole site to Chief Kgari Sechele in 1964. When reminded that Chief Kgari was already dead in 1964 he said he had applied to Chief Neale Sechele. Despite making allowances for similar lapses of memory due to the passage of time, the Learned Judge nevertheless rejected the evidence of the Appellant finding that he was not candid with the Court on several issues and on certain issues that he was lying. Having carefully read the record of Appellant's evidence, I am of the view that the Learned Judge's criticism of it is fully justified. Appellant was contradicted as well on at least one issue by bis own wife. The Learned Judge also accepted the evidence of 2nd Respondent in preference to that of Appellant where his evidence conflicted with that of Appellant.
The Learned Judge's reasons are, as I have said, carefully reasoned, and are both compelling and convincing. I need not set them out here. It would also be a work of supererogation for me again to analyse the evidence and set out my reasons as to why I think that Appellant's evidence is unreliable and should not be accepted. I would then merely be repeating the Learned Trial Judge's reasons, which I readily accept as my own.
The Learned Judge also found support for his reasoning in certain documentary evidence,
particularly a letter which Appellant obtained from the Council when he applied for the Water
Right Certificate, which states"
"This is to certify that Mr. Gaetwesepe Keraantswe Mosarwa has permission to use the borehole located at Poloka" (emphasis added by the Learned Judge)
As Nganunu J. says: "The importance of this letter is that the (Appellant) was obliged to obtain documentary evidence from (the Council) that he used this borehole with the permission of the Council. Had this been his borehole he would ordinarily have

6
produced his own documents of such ownership or failing that would have obtained a letter from the Council or some other authority showing that he is the owner of the borehole".
It is moreover not without significance that although Appellant produced at the hearing a number
of documents which he said supported his claim to ownership of the borehole, he stated that he
had lost the one letter which could have established more pertinently his claim viz the letter from
the Chief allocating the borehole site to him. He said it was the only letter of all the relevant
documents which he no longer had in his possession.
Mr. Komboni, who appeared at the appeal for the Appellant criticised the Learned Trial
Judge's judgment in a number of respects. One of Mr. Komboni's main criticisms was that the
Learned Trial Judge did not decide the issues before him viz whether the borehole was owned by
Appellant or by the Council. He referred in particular to the minutes of the pre-trial conference
where the issues are set out as:-
(i) Whether Appellant is the owner of the borehole and, (ii) Whether the Council "is the present owner" of it.
There is no substance in this submission. The only relief sought on the papers was that of the
Appellant for an order declaring him to be the owner. No similar relief was claimed by the
CounciL While the parties at a pre-trial conference can narrow or limit the issues to be tried, they
cannot expand them beyond the issues in the pleadings or in the relief sought in an application,
without the concurrence of the Court. No such extension was either sought from the Learned
Judge a quo nor granted by him He was therefore quite correct in finding as follows:
"The Respondents did not ask for any positive remedy, being content to oppose the application and leave the status quo to continue. In that event it was enough for them to advance certain contentions leaving the Applicant to dispose (sic) them in order to establish his claim. Applicant has not succeeded in doing so."
Mr. Komboni further submitted that the Learned Judge had erred in holding that 1st and

7 3rd Respondents had applied to the Chief for a site to drill a borehole and for relying "on the hearsay evidence" of 2nd Respondent in this regard. The Learned Judge made no such finding nor is there anywhere in his judgment anything from which such a finding can be inferred. This submission too, therefore, has no merit.

A further submission was that the Learned Judge failed to give due weight to a contradiction between the evidence of 2nd Respondent that 1st Respondent had applied for a site for a borehole and 3rd Respondent who, in his affidavit, made no such allegation. This submission also has no merit. 3rd Respondent did not specifically advert to this aspect in his affidavit so that the contradiction is more apparent than real but, in any event, it is such a minor discrepancy when viewed against the evidence as a whole that it cannot affect the outcome of this appeal.
Mr. Komboni argued that the Learned Judge was wrong in seeking confirmation for his findings in the letter written by the Council which I have cited above in that there was no evidence as to the purpose of the letter. That may be so, but there is no doubt that the letter was written -its existence was never challenged - and the conclusion which the Learned Judge drew from the its contents was, in my view, fully justified. This argument too cannot succeed.
One of Mr. Komboni's main submissions was that the various letters in connection with this borehole from the relevant authorities were all addressed to Appellant personally and not in his capacity as Chairman of the group, thus supporting Appellant's averment that the borehole was allocated to him personally. He relied particularly on a letter dated 9th February, 1966 signed by one J. H. Powell, an Agricultural and Livestock Officer of the Department of Agriculture, which is to be found at Page 75 of the record, addressed to Appellant in which Powell replies to "your letter" of 9th September 1965 and to "your complaint that your borehole has been given to Mr. S. Busang". Second Respondent's evidence, however, was that the syndicate was in existence, with its own constitution, by the time the drilling or deepening of the borehole

8 occurred, which according to a drilling certificate produced as evidence, was between 10 and 16 April, 1965. All correspondence thereafter, according to 2nd Respondent, was to be in the name of the syndicate but directed to Appellant as he was a Veterinary Officer working for the Government and had a post box. If Appellant did not conduct the correspondence on the syndicate's behalf but wrote personally and not in the name of the syndicate, he was "cheating", said the 2nd Respondent. That evidence is supported by several factors. Firstly, the letters are addressed to the Appellant at a post box number at Molepolole. Secondly, the syndicate appears to have indeed been in existence by April, 1965. Appellant conceded in cross-examination that he had paid the deposit on 28 January, 1965 after receiving money from members of the syndicate - a concession clearly correctly made as 2nd Respondent had receipts from Appellant reflecting a payment to Appellant on that day. There is therefore much substance in 2nd Respondent's testimony that correspondence thereafter should have been on behalf of the syndicate and addressed by Appellant in his capacity as Chairman of the group. Little weight can accordingly be given to the fact that correspondence after April, 1965 was conducted in Appellant's own name.
Mr. Komboni also sought to rely on the fact that on the drilling certificate mentioned the words "Government/Tribal/Private" appear in regard to the classification of the drilling operation and that the words "Government/Tribal/" are deleted, leaving the word "Private" intact. That, so he submitted, was a further factor tending to establish Appellant's ownership. It is however, completely equivocal. If the drilling had been done on behalf of the syndicate it would still have been "private." Nothing therefore turns on this factor.
Finally Mr. Komboni argued that the Learned Judge had overlooked a passage in Phillip Mokoka's evidence at Page 115 of the record where the latter said "This borehole was allocated to Mosarwa". He said this on the strength of an alleged letter from the Mahalapye Agricultural

9 Office which, he said, stated that the borehole belonged to Appellant. He conceded, however, that he had not seen the letter. Indeed, no such letter was ever produced by Appellant. He also conceded that he said the borehole was Appellants' because Appellant told him that he had been allocated a site by the Chief. He was, he admitted, not present at the time. He said that Appellant had told him "everything about the borehole, from the beginning" but admitted that Appellant had not told him that he had formed a syndicate. He could not dispute the existence of the group nor could he dispute that Appellant was acting on behalf of the group. The Trial Court did not overlook the passage mentioned. Indeed, be referred specifically to it but he, preferred to accept Phillip Mokoka's evidence that the boreholes in the area concerned belonged to the government, and had been drilled for drought relief and then "sold" by the government to groups. That evidence is consonant with the evidence of 2nd Respondent and of Simon Sokwane and with the affidavits of Phuthegelo and Sebonego, all of which is to the same effect. The totality of this evidence supports the Respondents' version that the borehole was allocated to the syndicate rather than that of the Appellant that it belonged to him.
The principle is well-established that a Court on appeal will only upset a Trial Court's finding on fact where it is satisfied that the Courts' finding is clearly wrong See: (R. vs Dhlumayo & Another 1948 (2) SA 67KAY. Merchand & Another vs Butler's Furniture Factory 1963 m SA 885 (Al at 890 (E\) Nothing that the Appellant had advanced on appeal persuades me that the Learned Judge a quo was wrong in his decision. Indeed, on all the evidence I am of the view that he was clearly correct.
The appeal is accordingly dismissed, with costs.

I agree
agree

10
DELIVERED IN OPEN COURT THIS .....^?..#L DAY OF JULY, 1995
P. H. TEBBUTT JUDGE OF COURT OF APPEAL
T.A. AGUDA JUDGE OF COURT OF APPEAL
W. H. R. SCHREINER JUDGE OF COURT OF APPEAL

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