Matheleli v Gama and Others (CIV/APN/457/00 CIV/T/247/00)

Case No: 
CIV/APN/457/00
Media Neutral Citation: 
[2004] LSHC 34
Judgment Date: 
24 February, 2004

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CIV/APN/457/00

CIV/T/247/00


IN THE HIGH COURT OF LESOTHO


In the matter between:


RAPHAEL MATHELELI APPLICANT

VS

MRS. LIPALESA GAMA 1st RESPONDENT

DEPUTY SHERIFF (NKAU MATETE) 2nd RESPONDENT

ATTORNEY GENERAL 3rd RESPONDENT


JUDGMENT.


Delivered by the Honourable Mrs. KJ.Guni On the 24th February, 2004.


Rescission............Rule 45 (1) (a) HIGH COURT RULES (Legal

Notice 9 of 1980)


Rule Nisi ............. The meaning thereof............ temporary measures............with assigned period of validity..........Can an expired Rule Nisi be confirmed?


INTRODUCTION

  1. This is a matter of an application for rescission of the order of rescission of the judgment of this court in CIV/T/243/2000. The applicant herein was the plaintiff in that civil action, while the respondent was the defendant.


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From that original civil action, there arose a series of applications, two of which, were made by the defendant and only one - the present application which falls for determination before me, is by the plaintiff. In this application the plaintiff now applicant seeks an order of this court to rescend an order of court which rescends and sets aside that judgment entered in her favour in CIV/T/243/2000.


HISTORY OF THE CASE


  1. The sequence of events which led to the present application went as follows :


1.1. On the 22nd August, 2000, plaintiff issued out summons against the defendant It would appear from the defendant/respondent's papers that he accepted liability for the costs which were incurred by the plaintiff when she repaired her motor vehicle which was involved in a collision with the motor vehicle driven by the defendant/respondent who caused the said collision. Parties agreed that defendant/respondent will pay cash by instalment or by kind that amount of damages in the sum of ten thousands maloti (M10,000.00). Apparently that agreement did not work hence the suit.


1.2. The summons were served upon the defendant/respondent on the 22nd September, 2000.


1.3. No appearance to defend was entered.

1.4. Notice of application of default judgment was filed.

1.5. Default judgment was entered against the defendant.


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1.6. During the month of November, 2000, A Writ of Execution was issued. It was served upon the defendant/respondent. Certain items of his movable property were attached.


2. On the 23rd November, 2000, the defendant/respondent's attorneys filed ex-parte CIV/APN/45 7/2000, seeking an order of court, rescending and setting aside judgment in CIV/T/243/2000 and staying the execution of the writ issued out in pursuant of the said judgment.


2.1. Rule Nisi - returnable on the 8th December, 2000 was issued and served upon the plaintiff/applicant' s attorneys.


2.2. No opposing papers were filed. Parties agreed that the application proceeds uncontested.


2.3. On the return date - 8th December, 2000 when the matter was called, there were no appearances, consequently, the matter was struck off the roll.


2.4. When and how the matter reappeared on the court roll, is not in a conventional way. The record does not show. But despite that, according to defendant/respondent the rule nisi eventually expired on the19th February, 2001.


Note : This should have been the end of the matter.


  1. On the 29th May, 2001, defendant/respondent's attorneys filed once more an ex-parte application for the revival of that expired rule nisi. They obtained yet another Rule Nisi which was served upon the attorneys of the plaintiff/applicant.


3.1. Opposing papers were filed forthwith. Plaintiff / applicant's attorney made it very clear to defendant / respondent's attorneys, that the confirmation of that Rule Nisi for the revival of the expired Rule Nisi, will be tenaciously resisted. After notifying by letter the attorneys of the defendant/respondent that the execution must proceed, they requested the deputy sheriff to proceed with the same.


3.2. That application for the revival of the Rule Nisi was to be heard on the 4th June, 2001, but was postponed for hearing to the 11th June, 2001. For no apparent reason the hearing of the matter was routinely and regularly postponed for a period of three months. During that period no further filing of any pleadings seemed desirable. None was effected. Strangely enough on the 27th August, 2001, when the matter was called, the defendant/respondent's attorney asked the court to give them an opportunity to file a repaying affidavit. They gave no reason for their failure to file the same over a period of four months. The postponement for hearing to the 3rd September, 2001 was granted. Nevertheless NO REPLYING AFFIDAVIT, was ever filed. On the 3 September, 2001, the defendant/respondent's attorneys, requested the court to remove the matter from the roll and undertook to file in due course a formal Notice of withdrawal of the said application. This was done.


Note : Expectations are that the matter should now have ended : But it was not to be.


  1. 4. On the 7th November, 2002 a number of Notices were served upon the person of the plaintiff/applicant. Her attorneys of record being set-stepped or ignored. The Notices were :

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  1. Notice of withdrawal by the attorney of the defendant.

  2. Notice of set-down of that CIV/APN/457/2000.

  3. Notice of appointment of new attorneys of record for defendant/respondent.


4.1. The CIV/APN/457/2000 reappeared on the motion roll of the 18th November, 2002. When it was called before court, there was no appearance. The matter was struck off the roll with costs.

4.2. However, it would appear that on the 14th November, 2002, the present attorneys of record of the defendant/respondent approached ex-parte, the judge in chambers. They sought and obtained a final court order rescending and setting aside that judgment in CIV/T/243/2000, and finally restraining the deputy sheriff from executing. When this final order was served upon the attorneys of record of the plaintiff/applicant, immediately they filed this present application seeking an order of this court to rescend and set aside that final order obtained by the defendant/respondent on the 14th November, 2002.


APPLICANT'S CASE.


  1. It is the plaintifff/applicant's case that on the 14th November, 2002 the defendant should not have approached the judge ex-parte, in chamber and seek and obtain a final order without notice to them. They applied to this court to set aside the order so erroneously sought and obtained.


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DEFENDANT/RESPONDENT'S CASE


  1. (4) The granting of this application - (CIV/APN/45 7/2000) was not opposed by the plaintiff/applicant. No opposing papers were filed in that matter. Therefore in terms of the rules of this court, they were not obliged to give anyone notice when they approached the judge and obtained the orders as they did. The notices sent by them to plaintiff/applicant personally were merely out of courtesy or goodness of their hearts.

  2. ISSUES

5.1 Was the order obtained on the 14th November, 2002, ex-parte a Rule Nisi or final order?

5.2. If it was a confirmation of a Rule Nisi, it was therefore a final order. Is an expired Rule Nisi still available for confirmation after its expiration?


THE LAW


  1. It seems the interim court orders sought and obtained by the defendant/respondent over the various periods of time, served no good purpose to him because during the time they were in force, defendant/respondent took no steps to ensure that they are made final court orders. He failed neglected and/or abandoned their confirmation into final court orders despite the fact that the first application - CIV/APN/547/00 was not opposed.


The Rule Nisi is but an order of court to which a specific time of validity is assigned. FISHER vs FISHER 1965 (4) S.A.


644. Beyond that assigned period of validity the Rule Nisi ceases to be of legal force and effect, unless it is revived. It


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was for this reason, that the attorneys of this plaintiff/applicant, by letter dated the 5th September, 2001 -(Annexure "A") advised the attorneys of the defendant/respondent that they are now instructing the deputy sheriff to proceed with the execution. The Rule Nisi which set aside the judgment and stayed the execution thereof had lapsed and therefore the status quo prevailing prior to the issuing of that Rule Nisi was restored. Grating a final order on the expired Rule Nisi, without further notice to the party whose interests it affects, is wrong. KHAKETLA vs MALAHLEHA & OTHERS C of A NO. 18/91. The court orders obtained ex-parte which affect other people's rights adversely, must always be of a temporary nature. KHAKETLA vs MALAHLEHA & OTHERS (Supra),


  1. There are two way in which a Rule Nisi may come to an end. The Rule Nisi may be abandoned by the person in whose favour it was issued. That is to say, the person to whom the Rule Nisi was granted, allows it to lapse. He may also negligently fail to confirm it into a final order. This appears to have been the case in our present matter. The CrV/APN/547/00 was not opposed. There is no explanation by the defendant respondent why his attorneys failed to pursue the confirmation of the Rule Nisi. Alternatively that Rule Nisi could have been confirmed or discharged by the court. These are the only two ways in which the Rule Nisi can be properly dealt with, LESOTHO FOOTBALL ASSOCIATION vs LESOTHO SPORT COUNCIL 1991 - 1992 LLR page 26. The defendant/respondent elected to abandon the previous Rule Nisi issued out in his favour. He therefore properly ended the same by abandonment. He cannot therefore without reviving it, irregularly and improper confirm it into a final order.


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  1. The order obtained ex-parte on an expired Rule Nisi, without indicating the said state of affairs to the judge, is erroneously sought and consequently erroneously granted. In terms of rule 45 (1) (a) HIGH COURT RULES - ( Legal Notice No.9 of 1980) - the court may MERO MUTO or upon the application of any party, rescend such an order. Therefore this application - seeking an order of rescissoin of an order of court obtained irregularly, must succeed.


COSTS


  1. The plaintiff/applicant is asking an award of costs in this application, on the scale as between attorney and client. In their argument before this court, the parties have not dealt with the question of costs. When the party prays for the costs of a punitive nature, that party must satisfy the court that he or she is entitled to the costs at the punitive scale. The other party should also be given an opportunity to show cause why the costs should not be granted at that punitive scale. Both parties in this matter has not dealt with the question of costs. Having left that question of costs open, there is no reason why costs should therefore follow a natural ordinary course. This application is therefore granted with costs.


K.J.GUNI

JUDGE


For Applicant : Mr.Grundling.

For Respondent : Mr.Metlae.


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