Lemena and Another v Sole (C.of A. (CIV) No 25 of 2001 CIV/APN/318/2001 CIV/APN/319/2001)

Case No: 
CIV/APN/318/2001
Media Neutral Citation: 
[2002] LSHC 11
Judgment Date: 
12 April, 2002

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C.of A. (CIV) No 25 of 2001

CIV/APN/318/2001

CIV/APN/319/2001

IN THE COURT OF APPEAL OF LESOTHO


In the matter between:


JAMES MOLEFI WILLIAM LEMENA 1st APPELLANT

LESOTHO HIGHLANDS DEVELOPMENT AUTHORITY 2nd APPELLANT

and

MASUPHA EPHRAIM SOLE RESPONDENT


HELD AT MASERU


Coram: GROSSKOPF, JA

PLEWMAN, JA

MELUNSKY, AJA


JUDGMENT


Summary:


Execution, Requisits of Rule 46 Introduction of a qualification in the courts order not sought in notice of motion or by either party.


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PLEWMAN JA.


This appeal is part of an ongoing saga - namely the dispute between the Lesotho Highlands Development Authority and a former Chief Executive Officer Mr. M.S. Sole. For all that, however, the present appeal raises an issue of limited ambit. The background is that in October 1999 appellant, the Development Authority, was granted judgment in a substantial amount against appellant, Mr. Sole. That decision was taken on appeal and, subject to a minor adjustment of the quantum, was upheld by this court. The award in this court in favour of appellant was in the sum of Ml,751,049. The Respondent did not pay this sum or any part thereof and in due course Appellant issued a warrant of execution in order to attach property belonging to Respondent. This in fact involved two separate warrants and a number of attempt on the Sheriffs part to attach and sell property of sufficient value to satisfy the warrant. It was the advertised sale of respondent's property that led to the present proceedings. Eventually two applications were launched but finally heard together. The detail of what was in dispute in these matters need not be discussed because what is an issue in the appeal is no more than the wording of part of an order. The full terms of the lower court's order which is an issue is as follows:-

"re :CIV/APN/319/01:


  1. The Respondent (by which I understand the present respondent though strictly he was the applicant) is directed to make available all his moveable assets to the Deputy Sheriff who shall take inventory of the same in the presence of Mr. Pitso of Oxbow Land and Property Consultants and of the Attorneys of the Applicants and Respondents.


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  1. The Deputy Sheriff to comply strictly with the provisions of Rule 46 and Rule 47 before the immovable assets of Mr. Sole are attached and sold in execution.


Each party to bear its own costs." (The words I have underlined in this quotation are the words in dispute.)


This order, it seems to me, reflects a substantial success by appellant in the litigation which was in essence an attempt by respondent to restrain or prevent the attachment of his property. (It is true that in so far as respondent's immovable property is concerned respondent enjoyed equal success).


This brings me to appellants complaint. Appellant has argued that the underlined portion of the order was neither proposed by or sought by either party. Respondent was represented at the appeal by counsel who said that he was instructed only to inform this court that the respondent would abide the court's decision and did not wish or propose to make any submissions to the court. Counsel for respondent did not contradict the above submission. (Indeed counsel was, upon the invitation of the court, able to assist in another respect not now an issue). Appellants main submission, therefore, was that there was no basis for the court's qualification of order 1 in this manner. This would seem to me, in the light of what has been stated and the acceptance thereof by respondent, to be correct.


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I feel obliged nonetheless, to deal at some greater length with the terms of this order. It seems to me that it can safely be concluded from the judgment in the lower court that what the learned judge was attempting to do, was to introduce into the order a mechanism to limit the property which can be attached in a manner similar to that set out in S. 40 of the Subordinate Court Order No.9 of 1988. In his judgment the learned judge concluded that the failure to make a provision of a similar nature, in the Rule 46 of the High Court Rules, led to the conclusion that "Parliament had been guilty of casus omissus" entitling him to read into the procedure of the High Court Rules a provision, "of the nature listed under S. 40 of the Subordinate Court Order 1988".


I cannot agree with this reasoning. As the learned judge himself, had (earlier) pointed out, S. 10 of the Constitution specifically provides that any law "that authorises, for the purpose of enforcing the judgment or order of a court in any civil proceedings" is not inconsistent with the protection of property profits by the consultation. From that point, one must simply proceed to the law concerned - in this case the Rules of the High Court framed for the purposes of enforcing court orders - that is Rule 46. The provisions of the Subordinate Court Order, 9 of 1988 have no application to this matter.


It would seem then that the purpose of the learned judge's addition to the order was, in any event, misconceived.


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In the result the order as granted was incorrectly framed and, to this extent, must be set aside.


In the result I make the following order:


  1. The appeal succeeds with costs.


  1. Paragraph 1 of the order in case CIV/APN/319/01 is set aside to the extent that the words "in the presence of Mr. Pitso of Oxbow Land and Property Consultants and the attorneys of appellant and respondent" are included therein. These words are accordingly deleted.


C. PLEWMAN

JUDGE OF APPEAL


I agree


F.H. GROSSKOPF

JUDGE OF APPEAL


I agree


L.S. MELUNSKY

JUDGE OF APPEAL


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Delivered at Maseru in Open Court this 12th day of April, 2002


For Appellant : Mr. Moiloa

For Respondent : Mr. Khauoe