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Selemela v Letsie (C OF A (CIV) NO.12/2009)
IN THE COURT OF APPEAL OF LESOTHO
C OF A (CIV) NO.12/2009
In the matter between:
MOTLOMELO SELEMELA APPELLANT
LIRAHALIBONOE LETSIE RESPONDENT
CORAM: SMALBERGER, JA
Heard : 15 April 2010
Delivered: 23 April 2010
Sale of tractor – non-payment of full purchase price – claim for general damages for breach of contract - such claim legally unsustainable – non-payment of balance of purchase price pleaded and proved – trial court granting balance of purchase price under alternative relief – propriety of such order –whether trial court had jurisdiction to make such order.
 On 11 November 2004 the respondent (as plaintiff) instituted action in the High Court against the appellant (as defendant) for payment of the amount of M40 000-00 for “general damages and deprivation of profit” arising out of the respondent’s alleged breach of contract. After further particulars were sought and furnished, the defendant’s plea filed and certain preliminary skirmishes disposed of (including obtaining a default judgment which was later rescinded) the trial proceeded before Majara J. The learned judge found for the plaintiff and made the following order:
“I accordingly order the defendant to pay the plaintiff damages in the amount of M15,000.00 plus interest at the rate of 18% calculated from the date of the mora being the month of December 2001 and costs.”
The present appeal is directed against the above order. For convenience I shall continue to refer to the appellant and the respondent as the defendant and the plaintiff respectively.
 After setting out the details of the parties and alleging jurisdiction the plaintiff’s declaration reads as follows:
The parties entered into a contract on 29th January 2001, whereby Plaintiff sold to Defendant a tractor at a total price of M18 000.00.
It was agreed by the parties that payment will be made in December 2001, in terms of which the Defendant immediately took possession of the said tractor, and commenced using it.
At the beginning of the year 2002 after Defendant failed to pay Plaintiff approached him to get the payment, but the Defendant did not pay out - some months thereafter paid M3 000.00 undertaking to pay balance soonest.
The Defendant, in acknowledging receipt of Plaintiff’s letter of demand confirmed using the tractor and said it functioned satisfactorily. Despite demand defendant refused to pay.
While using it Plaintiff during ploughing season earned M960.00 per day charging M120.00 per acre, over 8 acres.
The Defendant however used the said tractor for four months for his own benefit thus depriving Plaintiff of the profits he could have earned.
The Defendant having used the tractor when he failed to pay in December 2001 was in breach of the contract by using it after the breach and for his own benefit.
Plaintiff received no profit either on full payment of M18,000.00 as agreed or return of the tractor.
In consequence of the breach and illegal use the Plaintiff has lost the tractor and claims general damages and deprivation of profit in a total sum of forty thousand maloti (M40 000.00) and interest thereon at the rate of 18% a tempore morae.
Wherefore Plaintiff claims against the Defendant:
Payment of M40,000.00 general damages
Interest thereon at the rate of 18% a tempore morae
Costs of suit
Further and/or alternative relief.”
 In response to the defendant’s request for further particulars, the plaintiff alleged that the contract on which he relied was written, and was dated 29 October 2001. The plaintiff annexed what was referred to as a “fair translation” of the contract. It is to the following effect:
“This is to acknowledge that I [the plaintiff] have agreed with Mr. Motlomelo Selemela to sell him my tractor a Ford Model 5000 and we have agreed that he take it and its money he will pay it on 12/2001 which means that he is taking it without paying at this time, with its plough and its price with the plough is M18 000.00.
Signed by both Plaintiff and defendant and two witnesses.”
It was further alleged that delivery of the tractor took place on 29 October 2001.
 The defendant’s plea does not deal with paragraphs 4 and 5 of the declaration as amplified by the further particulars. The remaining allegations are all denied. In paragraph 2 of the plea it is specifically stated that “[d]efendant pleads that the plaintiff was paid in full and final settlement as agreed.”
 The plaintiff duly gave evidence in support of the allegations made in his declaration. His evidence established that he had sold the tractor to the defendant for M18 000-00; that delivery of the tractor had taken place; that payment was not made as and when promised; that despite various demands for payment the defendant had only paid M3 000-00 towards the purchase price; and that there was still a balance of M15 000-00 owing to him in respect of the purchase price. There was no suggestion by the plaintiff that he had ever cancelled the agreement of sale and demanded return of the tractor. The plaintiff went on to testify to what he claimed were the general damages he had suffered consequent upon the defendant’s breach of contract. His claim appears to have been premised upon the fact that because of the defendant’s breach of contract arising from non-payment of the purchase price he had been denied the use of the tractor with resultant inability to generate any income and profits from ploughing lands.
 At the conclusion of the plaintiff’s case the defendant applied for absolution from the instance. The learned trial judge correctly held that the plaintiff had not made out a case for general damages. Indeed, the plaintiff’s claim for general damages was entirely misconceived. He suffered no damages which flowed naturally from the breach of contract. Nor was a case made out for any special damages within the contemplation of the parties. In dismissing the application for absolution the trial judge held:
“It is my view that I cannot correctly grant defendant herein absolution from the instance because I have already shown that plaintiff has made out his case for the balance of the purchase price in the amount of M15,000.00.”
Faced with this finding the defendant elected not to testify. In the circumstances it is hardly surprising that the trial judge gave judgment for the plaintiff for the balance of the purchase price.
 Miss Mokoena, who appeared for the defendant, advanced two arguments on appeal. The first was that it was legally impermissible for the trial court to have awarded the plaintiff the balance of the purchase price of the tractor when his claim was one for general damages; the second was that the trial court lacked competency to make the order it did as it was premised on a claim that fell within the jurisdiction of a subordinate court, and the trial court’s jurisdiction was excluded by section 6 (1) of the High Court Act 5 of 1978 (“the Act”). I shall deal with each of these in turn.
 In Mbangamthi v Sesing-Mbangamthi LAC (2005-2006) 295 at 301 G-J this Court said the following in para :
“The third aspect for concern is the fact that the learned judge took it upon himself to make an order which was not sought in the notice of motion or covered by the evidence or, so we were informed, canvassed in argument at the hearing. There is no doubt that this was unfair both procedurally and materially. Vice Chancellor of the National University of Lesotho and Another v Putsoa, LAC (2000-2004) 458, paras ,  and . This indeed is why both counsel were agreed that the appeal should be upheld. Nor is it permissible in this matter to rely upon the catch-all prayer for further and alternative relief, as here the relief actually granted was substantially different from that sought. See Liquidator of Lesotho Bank v Khabo, LAC (2000-2004) 847.”
 The plaintiff’s claim as prayed was one for general damages. Although the order in the trial court’s judgment refers to “damages”, in the context of the judgment it is apparent that what was awarded to the plaintiff was the balance of the purchase price of the tractor – hence payment of a monetary obligation and not damages. Although not explicitly stated to be the case, it is apparent that in making the order she did the trial judge acted in terms of the prayer for further or alternative relief. The question is whether she was entitled to do so.
 In Tsosane and Others v Minister of Prisons and Others 1982 (2) (SA 55 (C) at 63 E-G the following was said:
“In any event and insofar as the relief sought may not have been appropriate or even legally competent, I would have been prepared to grant an appropriate order directed at the decision of the second respondent (assuming the merits of the matter justified this) under the prayer for further or alternative relief. Relief may be granted under this prayer where what is sought is not inconsistent with the substantive relief claimed and where further the basis for such relief has been laid in the supporting papers and dealt with in the answer of the respondent (see Queensland Insurance Co Ltd v Banque Commerciale Africaine 1946 AD 272 at 286; Rooibokoord Sitrus (Edms) Bpk v Louw’s Creek Sitrus Koöperatiewe Maatskappy Bpk 1964 (3) SA 601 (T) at 608.”
 In the present matter paragraphs 4 to 7 of the plaintiff’s declaration made out a case for payment of the balance of the purchase price of the tractor. The plaintiff testified to the relevant facts in support of those allegations. The defendant failed to give evidence in rebuttal despite the clear indication in the trial judge’s judgment in relation to the absolution application that the plaintiff had made out a case for payment of the balance of the purchase price. The issue was therefore one pertinently raised on the pleadings and canvassed in evidence. Had the declaration initially been confined to those allegations, or amended to delete the further allegations relating to general damages, a cause of action for the payment of the balance of the purchase price would have been properly pleaded and proved. The defendant therefore cannot claim that the proceedings were materially unfair or prejudicial. Nor did the fact that the plaintiff introduced an unsustainable claim for general damages legally preclude the order ultimately made by the trial judge having proper regard to the pleadings and evidence.
 The second ground of appeal advanced by Miss Mokoena was that the trial judge erred in granting judgment in the amount of M15 000.00 for the balance of the purchase price as this constituted a claim within the jurisdiction of the magistrate’s court which could only have been entertained after leave of the High Court had been sought and granted.
 In terms of section 2(1) (a) of the Act the High Court has unlimited jurisdiction to hear and determine any civil proceedings under any law in force in Lesotho. In terms of section 6 of the Act:
“6. No civil cause or action within the jurisdiction of a subordinate court (which expression includes a local or central court) shall be instituted in or removed into the High Court, save –
by a judge of the High Court acting of his own motion; or
with the leave of a judge upon application made to him in Chambers, and after notice to the other party.”
In passing it should be mentioned that the predecessor of the Act, the High Court Act 4 of 1967, did not contain a provision similar to section 6 (a).
 In concluding in her judgment on the application for absolution that the plaintiff had “made out his case for the purchase price in the amount of M15 000.00” the trial judge must of necessity have appreciated that she might ultimately have to make an order which fell within the jurisdiction of the magistrate’s court. Yet she proceeded with the trial. By doing so she must by implication be taken, while “acting of [her] own motion” in terms of section 6 (a) of the Act, to have approved that the matter “be instituted in or removed into the High Court.” In my view the trial judge accordingly did not lack jurisdiction to make the order she did.
 No appeal was noted against the trial judge’s order as to costs. Miss Mokoena however raised the question whether costs should not have been ordered on the magistrate’s court scale. The defendant could have excepted to the plaintiff’s claim for general damages on the basis that it lacked averments to sustain such a claim. It did not do so. The defendant could have admitted liability for the balance of the purchase price of the tractor, as he obviously had no defence to such claim, in which case the matter may not have proceeded further. He chose not to do so. While the plaintiff’s claim for general damages was misguided, the defendant unnecessarily prolonged the litigation. The trial judge had a discretion with regard to costs. I am unable to conclude that she exercised that discretion improperly.
 In the result the appeal is dismissed, with costs.
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
For Appellant : Adv. L. Mokoena
For Respondent : Adv. N.E. Makhera