Rajah v Monese and Another (C OF A (CIV) NO. 6/03 )

Media Neutral Citation: 
[2003] LSHC 120
Judgment Date: 
10 October, 2003

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C OF A (CIV) NO. 6/03

IN THE COURT OF APPEAL OF LESOTHO


In the matter between:-

JAMES RAJAH APPELLANT

and

MAMAHALI MONESE 1st RESPONDENT

TEFO MONESE 2nd RESPONDENT


Held at Maseru on October 2003


CORAM:

M. Ramodibedi J.A.

C. Plewman J.A.

J. Smalberger J.A.


Summary


Appeal records, necessity for record to be correctly constituted failure of judge of first instance to give a judgment setting out his reason for judgment erroneously granted. Difference between Rule 45 and Rule 27.


JUDGMENT

3/10/03


Plewman J.A.


[1] This appeal is fraught with difficulties due to the inadequacy of and omissions from the record. These matters will be referred to in greater detail below. It is necessary first to set out the background.


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[2] The appeal relates to proceedings initiated in the High Court by way of a deceased - and referred to herein for convenience as Tsepo Monese) was the second applicant.


They were also the seventh and second defendants (respectively) in proceedings instituted by the respondents in this appeal as plaintiffs in an action in the High Court brought by way of a summons issued on 21 March 2002. In the action respondents sought certain declaratory orders relating to a property being Plot No.12284-489 in central Maseru and, as far as appellant is concerned, his ejectment from such premises (the premises seem also to be referred to as site 33/34 ). Appellant is (or was) the proprietor of a shop situate on the site which he claims to have occupied lawfully in terms of an arrangement with Tsepo Monese.


[3] At some time in March 2002 both appellant and Tsepo Monese were served with the summons in the action. The documents served on them reflected the court number of the case as CIV/T/158/02. Both thereupon approached appellant's present attorneys and instructed them to enter appearance to defend the action on their behalf. The founding affidavits in the application establish that a clerk in the attorneys firm repaired timeously to the Registrar's office in order to enter appearance. However when the clerk examined the record in case CIV/T/158/02 it was evident that the proceedings in the case so identified did not refer to or involve appellant or Tsepo Monese. This fact is, now, common cause. The


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consequence of this discovery was that appearance to defend the claims made in the summons served on appellant was not formally recorded. Only at a much later date, and then quite fortuitously, was it ascertained that the document served on appellant bore the incorrect number and that it should have been numbered CIV/T/157B/02. It is evident that (on the date not disclosed on the record) the respondents applied for and were granted a judgment on the summons by default.


[4] On 22 July 2002 the Deputy Sheriff of the High Court arrived at the premises and informed appellant that he had to vacate the premises failing which he would be forcibly evicted. Appellant was then also informed (for the first time) that a judgment had been granted against him. He was, however, not shown or served with a warrant or any other document establishing this fact. Appellant again immediately referred to his attorneys and the discovery concerning the incorrect numbering of the original process was then and partly by chance made by the clerk who had attempted initially to enter appearance on appellant's behalf. This led to the application the subject of this appeal.


[5] I now revert to the state of the appeal record. In the light of all that is now known (and I will presently set out the facts) it is uncertain where the major blame for the inadequacies of the record must lie. What is however absolutely inexplicable is the certificate filed by attorneys B. Sooknanan and Associates (which accompanies the record). How it could have been signed in its present form is beyond understanding. The certificate certifies the record as having been "checked" and asserts that "it is a correct copy of the proceedings."


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In fact, so counsel informed us, the record was a reconstructed record. If so it is in any event only a partial reconstruction. Apart from documents with blanks where relevant dates and reference numbers should have been inserted a good number of important documents have been omitted. There is for example (at page 26) an order of the High Court granting a rule nisi relating to a stay of execution of a warrant in case CIV/T/157B/02. This on the face of it was returnable on 12 August 2002. But there is nothing to show what took place on the return day or to explain if (as we were informed) nothing happened, how this could be. A rule must either be extended or discharged and cannot be left in the air. The record furthermore - though it includes the answering affidavit-omits the replying affidavit filed (which respondents' counsel was able to present to us). But most significantly the record omits two further important documents. There is no order against which this appeal is made and no judgment of the court a quo justifying any order made. The absence of the latter is something which is explained in an affidavit handed up to us by the appellant's counsel but not included in the records submitted to the judges of this Court. It may well be that it was only deposed to too late to make this possible. But that cannot excuse the absence of an explanation in the record at an earlier time of the material information. A qualification of or explanation in the attorneys certificate would have been appropriate.


[6] What emerges from Mr. Mda's affidavit is, in itself, very disturbing. It seems that Acting Judge Nomngcongo simply dismissed the application - adopting an extremely technical approach (which 1 will discuss presently) without ensuring that his order was recorded and merely stating his reasons in an informal manner.


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It is the obligation of all judges to make clear orders and to give proper judgments explaining their reasoning. Failure to do so will have the effect of rendering litigation simply an exercise of arbitrary power. In the present case the failure to do this is aggravated by the fact that numerous requests were made through the office of the Registrar and even by personal representations to the acting judge himself for his judgment. The application was argued before the acting judge on 6 March 2002. To date (3 October 2003) no judgment has been prepared. This has left this Court in the uncomfortable position of having to make good the inadequacies of the record on the basis of explanations tendered from the bar - a most undesirable situation and one which will not necessarily be repeated in future. Happily counsel are not only at one but are also supported circumstantially in what they have said by certain documents contained in the record. For example the notice of appeal (filed on 13/3/2003) clearly indicates the reasons which formed the basis of the order dismissing the application. It remains to mention that the records provided to the members of this Court did not contain the replying affidavit which it is conceded was filed. How much further this takes the matter is not relevant - this Court must be furnished with a complete record.


[7] I turn then to the basis upon which the court a quo dismissed the application. What must be said at the outset is that it was common cause in this Court that the judgment had, in the circumstances outlined earlier, been erroneously granted. We were informed that this had also been the case in the court a quo. If so it renders what occurred completely inexplicable. In the answering affidavit assertions are made to the effect that Tsepo Monese (the party from whom appellant claimed to have derived his right to occupy the premises) was not a


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citizen of Lesotho and could not therefore be the owner of the land. The precise thrust of this, in a case where one is only concerned with the question of appellant's rights to peaceful occupation of the shop, need not be decided in this appeal. Obviously the truth (if it be true) and the importance of this fact will be an issue in any trial proceedings. But, and whether or not this observation is valid, the court a quo's dismissal of the application was not based on an acceptance of the respondents' assertion. What the acting judge did (so we were informed) is that he charged appellant with having wrongfully failed to disclose this fact in the founding papers. This he held entitled him to dismiss the application out of hand - which he then did. It is, at best for the respondents, at least uncertain that any such duty rested on appellant. The proceedings were not brought ex parte. The application was served on the respondents leaving them free to raise any defence they felt they had. Such a defence would then become an issue between the parties - to be met in whatever way appellant considered appropriate. In this case the assertion in reply was that the issue was irrelevant to the application - a contention which will now be considered.


[8] In this case appellant relied on the provisions of Rule 45 (1) (a) for the relief sought. Rule 45 (1) (a) reads as follows :-


"45 1) The court may, in addition to any other powers it may have, mero motu or upon the application of any party affected, rescind or vary -


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  1. an order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby".


The reference to "any other powers" clearly includes a reference to Rule 27 (6) (a) which, so far as is relevant reads as follows:-


"27(6) (a) Where judgment has been granted against a defendant in terms of this rule or where absolution from the instance has been granted to a defendant, the defendant or plaintiff, as the case may be, may within twenty one days after he has knowledge of such judgment apply to court on notice to the other party, to set aside such judgment


  1. ..............


  1. At the hearing of the application the court may refuse to set aside the judgment or may on good cause shown set it aside on such terms including any order as to costs as it thinks fit." (Emphasis added)


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Appellant's counsel informed us that in the present case the application was moved under and in terms of Rule 45 and this he urged made the issue raised as to citizenship irrelevant. Respondents counsel has confirmed the correctness the contention of that the application was moved under Rule 45. The importance of this is that while under Rule 27 (6) (a) an applicant for recission must satisfy the court that his default was not wilful and that he has a bona fide defence this is not a requirement under Rule 45 (and if so Mr Mda would seem to be correct with regard to the issue of citizenship) See Loti Brick (Pty) Ltd vs Thabiso Mphofu and Others 1995-96 LLR - LB 446 (H.C.) at 450, and Gege LEC ( Lesotho) Ltd v Moabi & Another 1995-96 LLR - LB 504 at 507/8.


[9] In this case the summons bore an incorrect (and misleading) case number. While appellant was clearly not in wilful default and also asserted that he has a good defence a judgment on a misleading document is in any event clearly a judgment "erroneously granted". This being common cause the judgment had to be rescinded. The acting Judge's basis for avoiding this inevitable conclusion is simply not proper failure to disclose a relevant fact, if established, in any event (and again at best for respondent), would have vested the judge with a discretion to punish the appellant by dismissing the application. There is nothing before this court to show precisely what the judge was purporting to do and certainly nothing to show that this could, in the circumstances, remotely be said to be a proper exercise of such a discretion.


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As it is we have only the terms of the Rule and the concession that the judgment had been erroneously granted. The application for recission manifestly should have been granted. I can only express dismay regarding the conduct of the acting judge. His conduct reflects adversely and very seriously on the administration of justice and is to be regretted.


In the result the appeal succeeds. The application is re-instated and an order thereon is granted with costs in the following terms:


  1. (a) The default judgment granted (in case No. CIV/T/157B/02) is rescinded and is set aside.


  1. (b) The defendants are allowed to file a plea within 14 days of the date of this judgment.


  1. The writ of execution in this matter is set aside.


  1. The plaintiffs are ordered to pay the costs."


It also follows from the aforegoing that the respondents in the appeal (being only the 1st and 2nd respondents/plaintiffs in the application) must pay the costs of the appeal.


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Dated at Maseru this 10th day of October 2003.


C. PLEWMAN

JUDGE OF APPEAL


I agree

M. RAMODIBEDI

JUDGE OF APPEAL


I agree


J. S MALBERGER

JUDGE OF APPEAL


For the Appellant : Mr Z. Mda

For the Respondents: Mr M. Mosae