Raboko v Raboko (Rev. Case No.: 122/2003 CC 1048/2001 Rev. Order No.:ll/2003 )

Media Neutral Citation: 
[2003] LSHC 82
Judgment Date: 
5 August, 2003

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IN THE HIGH COURT OF LESOTHO


In the matter between :

TS'EPO RABOKO PLAINTIFF

AND

LOUSE RABOKO DEFENDANT


Review Case No.: 122/2003 CC 1048/2001

Review Order No.:ll/2003 In Maseru District


ORDER ON REVIEW


The record of proceedings, in this matter, has been placed before me with the following note from the trial Magistrate :


"I hereby request that the afore-mentioned proceedings be reviewed as I have made a patent mistake of granting conflicting orders herein:


The facts are, in a nutshell, that on 9th November 2001 plaintiff filed, with the Clerk of the Maseru Magistrate Court, summons commencing an action in which he sued the defendant for maintenance at the rate of M600.00 per month, costs of suit, further and/or alternative relief. On 23rd July 2002


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plaintiff applied for and was granted judgment by default, as prayed in the summons, on the ground that defendant had intimated no intention to defend the action. On 6th December 2002 plaintiff applied for and obtained a garnishee order against the defendant and his employer (Lesotho Express Delivery Service).


It is worth mentioning that no evidence had been adduced in support of the application for the default judgment. This being an action for payment of maintenance, it is difficult to understand how, in the absence of evidence, the court was able to determine the amount of monthly maintenance to be paid by the defendant.


Be that as it may, on 19th December 2002 defendant successfully applied for the rescission of the default judgment and the garnishee order. However, on 19th May 2003 plaintiff also approached the court with an application to rescind the rescission of the default judgment and the garnishee order which had been granted on 23rd July 2002 and 6th December 2002, respectively. The application was granted.


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In my view, once the court had, on 19th December 2002, rescinded the default judgment and the garnishee order, the defendant had to be afforded the opportunity to defend the action. That was not done. Instead, the court confused the issue by granting the application to rescind the rescission order which had been made on 19th December 2002. That was improper and ought not to have been done.


In the result, the following order is made, on review:


(i) The rescission order of 19th May 2003 is set aside;

(ii) The rescission order of 19th December 2002 is re-

inslated; and

(iii) The defendant is accordingly to be afforded the

opportunity to defend the action.


B.K. MOLAI

JUDGE


05/08/03


cc: The Magistrate - Maseru

All Magistrates


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