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Koboyankwe and Others v Molefe and Others (Civil Appeal No. 44 of 1996) [1998] BWCA 1 (31 July 1998)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Court of Appeal Civil Appeal No. 44/96 High Court Civil Case No. 646 of 1993
In the matter between:

TOPANE KOBOYANKWE DIKOBE KOBOYANKWE KGAKA GABATLALE MOHUMI KOBOYANKWE NFAKANE KOBOYANKWE KGETSE KOBOYANKWE GEORGE MADISA MOABI T. MADISA MADISA MADISA JOSEPH MARCUS MADISA
AND
MOLEFE MOLEFE MAINOLE BOGATSU SERATI SERATI PHALAAGAE TSELE BONTU PHALAAGAE MARIBE LETSEBE MONGALE RANTSHO THEKISO RANKO DITSHWENE

1ST APPELLANT 2ND APPELLANT 3RD APPELLANT 4 TH APPELLANT 5TH APPELLANT 6 TH APPELLANT 7TH APPELLANT 8TH APPELLANT 9TH APPELLANT 10 TH APPELLANT
1ST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT 4TH RESPONDENT 5TH RESPONDENT 6TH RESPONDENT 7TH RESPONDENT 8TH RESPONDENT

MR. K. N. MONTHE FOR THE APPELLANTS
MR. S. M. GAONGALELWE FOR THE RESPONDENTS
JUDGMENT
CORAM:   T. A. AGUDA, J.A
W. H. R. SCHREINER, J.A K. R. A KORSAH, J.A

2 KORSAH J.A.

This is an appeal against a judgment of the High Court dismissing the appellant's claim for an order of ejectment against the Respondents and/or anyone deriving occupation through them from borehole No. Z24 in Kgatleng District together with a claim for costs to be paid jointly and severally, the one paying the others to be absolved.
This singular saga of borehole history began around 193 8 to 1940.
On 24 June 1983, a letter from an authority, whose acronym is CAMA but whose identity was not disclosed to us, transferred to the Kgatleng main Land Board as the appropriate Government agency, the determination, of a long - standing dispute between two groups - Morwa and Mochudi -both of whom were components of a syndicate using a borehole situate at Lentswe [Linchwe.]
In the aforementioned letter it was reported that Mr. Molefe Molefe had represented to the house that, the borehole, which was the source of the dispute, was drilled by the British Government in 1937, and then handed over to

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the tribe and automatically to Council when the Country attained Independence.
It would appear from the narrative given to CAMA by Molefe Molefe that some time in the history of the borehole, round about 1939, Abel Madisa, who was managing or renting the borehole, recruited some people to join him so as to be better able to manage the borehole. This was what was later styled as Abel Madisa Syndicate.
According to Molefe Molefe's account, during the operations of the syndicate some members dropped out and their membership was reduced to three people.
At the time of the eruption of the foot and mouth disease in 1958, some people were forced to leave their cattle post by the construction of the Dibete cordon fence. Those people were compelled to join the Lentswe Syndicate and the Veterinary Department loaned to the Syndicate an engine. Molefe Molefe told CAMA that when this borehole machine was introduced, the original gear being used by the syndicate was an animal drawn pump. The borehole machine did not fit the pipes of the animal drawn pump, and so members of the

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syndicate were requested to contribute P120.00 each, to cover the costs of pipes, trough and reservoir.
According to Molefe Molefe's narrative, membership of the syndicate kept changing with some dropping out and many more joining in. In 1963, when he became heir to his father's membership, there were no records showing how funds were appropriated in the past and how contributions from members were accounted for. When he asked Mr. Mogapi Madisa why that was so he received no feedback.
Trouble began in 1976 when the account for individual defaulters was tabled before all the members of the syndicate. At this meeting the Morwa component of the syndicate indicated that the reason for not paying any dues was that they were the original owners of the borehole and that it was the non-owners - comprising of the Mochudi component of the syndicate - who were expected to pay rentals.
It will be recalled that the stance taken by Molefe Molefe, and maintained right through to 1988, was that the borehole was drilled by the British Government in 1937, and then handed over to the tribe and automatically became the

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property of Council on the advent of Independence. In short, the contention of the Mochudi component of the syndicate was that the borehole was the property of council and that all members of the syndicate were obliged to pay rentals.
The crisp issue for determination was, therefore, whether the Lentswe borehole was the property of the Morwa component of the Syndicate or whether the said borehole was the property of council, as contended for by the Mochudi component of the Syndicate. This issue was succinctly stated in CAMA's aforementioned letter referring the matter to the Kgatleng Land Board, thus:-
"the stumbling block is that the Mochudi component wants to know to whom the borehole under the syndicate's usage exactly belongs..."
The issue for determination was never at anytime perceived to be to whom the Syndicate belonged, but rather to whom the borehole used by the Syndicate belonged - to the Morwa component of the Syndicate or to council. Thus the matter before the land Board with regard to the ownership of the Lentswe [Linchwe] borehole which commenced before the Land Board in September 1983 was entitled:-

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"MADISA V. KGATLENG DISTRICT COUNCIL"
The Respondents, who were championing the cause of the District Council as the owner of the borehole, though recorded as present at the proceedings before the Land Board, were not parties to the proceedings. They had pinned their colours to the mast of the council. Their success or failure were directly linked to the fortunes of the Council in the ensuing battle.
The matter was adjourned by the land Board for further
hearing to November 1983, After hearing evidence from the
parties and their witnesses the Board resolved that the
borehole belonged to Abel Madisa' Syndicate, that is, the
Morwa component of Lentswe [Linchwe] syndicate.
Unfortunately, when it came to the drawing up of an order,
the following was what was stated:-
"RESOLUTION
The board resolved that lenchwe Borehole Syndicate belongs to Madisa's Syndicate...."
It is clear to me that, having regard to the solitary issue which CAMA had referred to the Land Board for resolution, the Land Board's order is incorrectly worded. The ordinary course followed when the court of appeal holds

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that a wrong order has been made is for that court to make
the proper order itself. I am, however, cognisant of the
fact that we are not sitting on appeal on the order made by
the land Board, but common sense dictates that the pursuits
of justice will be achieved only by giving a proper
interpretation to that order. That order should have
read:-
"The board resolved that Linchwe borehole belongs to Madisa Syndicate."
It was contended by counsel for the appellant that the Morwa component and the Madisa Syndicate are interchageable names for one and the same entity. That, this is so is indicated by the complaint lodged with CAMA by Molefe Molefe. He informed CAMA that there was a dispute between the Morwa component and the Mochudi component of the Lentswe Borehole Syndicate. He told CAMA that Abel Madisa recruited seven people to join him to better manage the borehole. He said as Abel Madisa and those who joined him continued with their Syndicate, - obviously meaning Mr. Abel Madisa Syndicate - the outbreak of the foot and mouth disease forced some people to leave their cattle posts, because of the construction of the Dibete Cordon Fence, and water their beasts at the Lentswe Borehole. Those people as I understand it, were compelled by the prevailing

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circumstances to join the users of the Lentswe Borehole. With the advent of this new group at the Lentswe Borehole to participate in the enjoyment of the Borehole, a new Syndicate made up of the owners and the newcomers came into being and the name Abel Madisa Syndicate became a misnomer. Thus the name was changed to Lentswe [Linchwe] Borehole Sydicate to reflect more accurately the commonality of the Syndicate operating at the borehole, as well as the designation of the borehole, as opposed to those who owned the borehole. The borehole according to the Appellants remained [at all times] the property of the Morwa group. The difference between the owners and the newcomers being that the owners paid an annual subscription while the newcomers paid a monthly rental.
Counsel for the respondent submitted that the Abel Madisa Syndicate and the Morwa Group were not one and the same entity as contended for by counsel for the appellant's because in the record of the proceedings before the Land Board in November of 1983, Madisa, testifying on behalf of the appellants [the Morwa group] against the council had been recorded as saying:-

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"In 1958, there was a dispute between Abel Madisa Syndicate and the Morwa Group who had been watering their cattle in Madisa's Borehole. The chief was called to settle the dispute. The Morwa group argued that the borehole does not belong to Abel Madisa' Syndicate it belongs to Government. The chief advised the Morwa Group that this borehole belongs to Abel Madisa Syndicate."
That this account contains an error is self-evident. Firstly, there was no dispute between the Abel Madisa Syndicate and any other Group in 1958. It was in that year that newcomers were accommodated by the Abel Madisa Syndicate. Secondly, the dispute erupted in 1976 when the Mochudi Group contended that the borehole belonged to the council and that members of the Morwa Group were obliged to pay rent as did other members of the Lentswe [Linchwe] borehole Syndicate. Thirdly, the chief's resolution of the dispute, with which the Mochudi Group was dissatisfied and therefore applied to CAMA for assistance, was made in 1976. The inevitable conclusion is that the appearance of "Morwa" instead of "Mochudi" in the above statement attributed to Madisa was either a slip of the tongue or a typographical error. Nowhere else in the record does it appear that the Morwa group, whereof Madisa himself was a member, had ever disputed their own title to the borehole or claimed that their right to use the borehole derives from the council. Only the Mochudi Group claimed, up to

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action being commenced by the Plaintiffs, that their title derives from council. There is no room for doubt that the Abel Madisa Syndicate and the Morwa Group are one and the same entity. It follows that the Abel Madisa Syndicate was the same as the Linchwe Borehole Syndicate, though the rights of the members in the syndicate were dependent upon whether one was a descendant of an original owner or a newcomer as lessee.
The Plaintiff's Particulars of claim allege that the ten of them are farmers resident at Morwa Village in the Kgatleng District [the Morwa Group] and that the Defendants are farmers living at Mochudi also in the Kgatleng District [the Mochudi Group] . It further alleges that all ten Plaintiffs are the owners of a borehole No.Z24 situated in an area called Linchwe, and that the Plaintiffs operate the borehole aforesaid under the name of Linchwe Borehole Syndicate. The Plaintiffs state that the eight Defendants are in possession and or occupation of the said borehole without the Plaintiff's consent; that the possession and/or occupation of the borehole by the eight defendants is unlawful and that despite lawful demand, the eight Defendants have refused and/or failed to deliver vacant

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possession of the borehole to Plaintiffs. Wherefore the Plaintiffs seek an order for ejectment and costs.
The Defendants filed a special Plea raising the issue of acquisitive prescription which was withdrawn, with leave of the Court, at the commencement of the trial. They also filed a counterclaim which was likewise abandoned and need not concern us.
In their plea to the Particulars of Claim, the respondents admitted that the 2nd and 5th Appellants are some of the owners of the said borehole No. Z24 situate at Linchwe and operated under Linchwe Borehole Syndicate, but denied that the rest of the appellants were owners of the said borehole.
The Respondents averred for the first time since 1976, when the dispute started, that the 1st, 2nd, 3rd, 6th and 8th Respondents, together with 2nd and 5th Appellants were joint owners of the said borehole No. Z24, and that the 4th, 5th and 7th respondents are owners of the borehole by virtue of having applied and having been lawfully admitted as members of the Linchwe Borehole Syndicate. The 2nd and 5th Appellants agree that they are owners of the borehole, but aver, against their own interest, that they are joint

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owners of the borehole with the rest of the Appellants, and not the Respondents.
The Appellants filed a replication to the main plea of the Respondents. The gist of it was that the 1st to 8th Appellants aver that the borehole was allocated to their parents being their predecessors in title during 1938, alternatively 1940 to the Abel Madisa Syndicate, later Linchwe Borehole Syndicate; and that all the Appellants deny that any of the parents of the Respondents were allocated the said borehole in 1958 or at any time. The appellants averred that each of the parents of 1st, 2nd, 3rd, 6th and 8th Respondents came to the said borehole at various times commencing from 1957 at the outbreak of the foot and mouth epidemic and came as lessees.
It is clear to me that there was some confusion in the minds of the respondents because up to November 1983, when CAMA referred the dispute between the parties to the Land Board for resolution the respondents pinned their colours to the mast of the council, claiming that the council was the owner of the borehole and that they derived their right to water their cattle at the borehole from council and not from the Abel Madisa Syndicate [the Morwa group] . The

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respondents contention that the 4th' 5th and 7th respondents became owners of the borehole by virtue of their admission into the Linchwe Borehole Syndicate is illustrative of the extent of the confusion in the minds of the respondents. Whereas original grant is put forward by the Appellants as the basis of their ownership of the said borehole, the respondents rely on their admission into the Linchwe Borehole Syndicate as the source of their ownership. Were this not so the respondents would not, have shielded behind the council's claim to ownership of the borehole. They put the council up as their landlord from whom all benefits would flow to them. Until the commencement of the instant action the respondents had openly challenged the Appellants' claim to ownership of the borehole by asserting that they the Respondents derived their right to water their cattle at the borehole from the Council which is the owner thereof. The Respondents' belated claim to ownership of the borehole cannot be sustained. There can be no gainsaying that the Mochudi group were parties to the submission to the Land Board and were bound by the decision of that Board.

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It has been a time honoured principle of the common Law that a lessee who disputes the title of the landlord loses his possession.
See CLARKE v. NOURSE MINES Ltd. 1910 T.P.D. at 519 - 522; KALA SINGH V. GERMISTON MUNICIPALITY 1912 T.P.D. 155 AT 159- 160; HILLOCK AND ANOTHER V.HILSAGE INVESTMENT [PTY] LTD 1975 [1] SA 508. At 516E; and COOPER, LANDLORD AND TENANT 2ND EDITION P. 28.
It does not lie in the mouth of the lessee to question the title of his landlord.
It must be stressed that the action by the Appellants was to vindicate their title to ownership of the Linchwe Borehole. This is made abundantly clear by the order for ejectment of the respondents contained in the Appellant's prayer. It was not an action to determine the rights to Linchwe Borehole Syndicate, though if the Appellat's prayer is granted it may have the same effect. The rights to borehole water under the Water Act were not canvassed in the court below or on appeal in this Court and cannot be debated in this judgment. The Respodents, by challenging

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the title of the Appellants as their landlords lose their possession of the borehole.
The appeal is therefore allowed with costs and the following orders are accordingly made:-
For purposes of the future it is to be recorded that the resolution of the Land Board made on 2 December 1983 in the matter of Madisa v. The Council, be and is hereby amended to read:-
"Linchwe borehole belongs to Madisa Syndicate."
2. The Order of the Court a quo dismissing the Plaintiff's claim and awarding no costs is hereby set aside. In its place is substituted the following:-
[a]      The Plaintiff's claim against the defendants
succeeds.
The Plaintiffs are granted an order for ejectment against defendants.
[b]    
The Defendants are to pay to the Plaintiffs the costs of this action jointly and severally, the one paying the others to be absolved.
[c]    
The Plaintiffs are also similarly entitled to costs for the late withdrawal of the defendants counter- claim
DELIVERED IN OPEN COURT THIS 31st DAY OF JULY 1998

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I agree
A. AGUDA, J.A


I agree
W.H.R. SCHREINER, J.A

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