IN THE HIGH COURT OF LESOTHO
In The Matter Between:
LESOTHO BANK IN LIQUIDATION Applicant
THOLANG MOKOMA Respondent
RULING ON POINTS IN LIMINE
Delivered by the Hon. Mrs Justice A. M. Hlajoane on 4th August, 2003.
This Application was moved Ex Parte on urgent basis. It was for declaring that the Hire Purchase agreement between the parties be cancelled and that Deputy Sheriff be authorised to take into his possession the motor vehicle subject matter of the agreement. The vehicle was to be taken wherever it could be found and be retained pending the final determination of this Application.
The Application was opposed and the opposing affidavit was duly filed. The Applicant also filed his replying affidavit. In his answering papers, the Respondent raised some points in limine.
A brief synopsis of this case is that, on the 18th April, 1997 the Lesotho Bank (in liquidation) as Financial Institution entered into a Hire Purchase Agreement with the Respondent for motor vehicle described as a Toyota Hi -Ace Super T Minibus, a 1995 Model. The full purchase price was the sum of Ml16,892.91. According to the Applicant a deposit was paid, and the amount of M101,504.09 was to be paid over 35 months in instalments.
The necessary formalities were carried out to complete the agreement. Applicant alleges that the Respondent is in breach as he has defaulted in the punctual payment of the instalments. It was a condition of the agreement that ownership of the motor vehicle was to remain vested in the Lesotho Bank, until the purchase price had been paid in full. Applicant therefore alleges he is entitled to cancel the Agreement and claim the return of the motor vehicle.
The Respondent on the other hand alleges that he has paid the purchase price in full. I have shown earlier on that the Respondent raised some points in limine, and they are the following,:-
- Lack of urgency
- Wrong Procedure and
- Dispute of fact
Lack of Urgency
The Respondent is saying that the Application is not urgent and that the Applicant never treated it as such. He is saying this because, the Applicant has shown that he received payments up to March 1999, but did not act once there was failure to honour the conditions of the Hire Purchase Agreement. In answer to this, the Applicant is saying that the Bank was closed and only came into existence in January 2001 after appointment of liquidator.
The Application was lodged in October, 2002 almost ten months after the liquidation process. It was stated in the case of Phai Fothoane v President -Christian Democratic Party C of A (Civ) No:48 of 2000, that delay in coming to Court is a bar to the Applicant moving his application ex parte on urgent basis. A litigant cannot wait for ten months and later be heard to say the matter should be treated as urgent, yet he never treated it as such.
The Court of Appeal has on numerous decisions repeatedly cautioned against the abuse of the rules of procedure that permit granting of urgent relief especially without notice. Lieta v Lieta C of A (Civ) No.5 of 1987, and Phai Fothoane above.
The Respondent is saying that the Applicant is giving the Court an impression that the Respondent in effect never serviced his loan. Respondent is saying that the last instalment was paid during or about May 2000 in full and final settlement of the said loan. Respondent is saying, had the Court been availed with all the material facts, it could not have granted a Rule Nisi against him. This point will be decided together with the following point.
Wrong Procedure and Dispute of Fact
Respondent avers that the Application is riddled with serious dispute of fact and should not have approached Court by way of an application precisely because the disputes should have been foreseen.
The Applicant rightly pointed out the criteria decided in Room Hire Company v Jeppe Street Mansions- I949(3)S.A. 1155 , for determining whether or not a real dispute exists that,
- The dispute of fact must be foreseeable
- Must be real and respondent must allege an alternative version
- It must be a dispute of the main facts necessary to decide the action, not just a peripheral issue
- Also whether or not the dispute of fact can be resolved on paper and not by viva voce evidence.
Respondent showed in his answering papers that he has paid the amount in full. He even indicated that the Bank debited his savings Bank account book with an amount of forty five thousand maloti on top of the deposit he had already paid. This fact could neither be admitted nor denied by the Applicant. In Application Proceedings affidavits constitutes proof and no further proof is necessary. Chobokoane v Solicitor General 1985 - 90 LLR 543. The Respondent disclosed all these because he contents that he has paid in full, but Applicant alleges he is still owing.
The respondent therefore is alleging an alternative version of the main factor necessary to decide the action. Proof of payment cannot be considered as only a peripheral issue, but a main factor.
Annexure "C" of the Applicant's founding affidavit is a document styled, customer statement, it was prepared, checked and authorized by three different people whose designations have not been stated. It is a computer print out. None of the people who signed on the document deposed to any affidavit, so that it remains unclear as to where the information came from.
It is a well established principle of our law that hearsay evidence being inadmissible evidence cannot form part of an affidavit. The document is hearsay evidence as the purpose for which it was attached was to establish that it was true that payments have not been made in full. It would be something if the statement attached was merely for purposes of showing that in fact payments were made to the Bank. See the case of Faker in 1979(1) LLR 214.
I quite agree with the Applicant that where there is no real dispute of fact, there would be no reason for incurring the delay and expense involved in a trial action. Motion proceedings would generally be recognised as permissible. But once a dispute is shown to exist the Court has a discretion as to the future course of the proceedings. The Court here has a wide discretion as to the future course of the proceedings. The Court has a wide discretion to exercise.
Despite the fact that the Bank was in 1999 closed whilst changing hands during the liquidation process, but it eventually came into existence in January 2001. The Court has ruled that there has been an inordinate delay in bringing this Application to Court.
The matter is not urgent and the Applicant himself has not treated it as such. Even the dispute of fact that exists can only properly be determined by viva voce evidence. In the result I am not going to dismiss the Application but direct that the matter be sent to trial in the ordinary way and that necessary pleadings be filed.
For Applicant: Ms Makhera
For Respondent: Mr Mathaba