Liquidator Lesotho Bank (in Liquidation) v Molete (CIV/APN/50/2003)

Case No: 
CIV/APN/50/2003
Media Neutral Citation: 
[2003] LSHC 57
Judgment Date: 
15 May, 2003

Downloads

CIV/APN/50/2003

IN THE COURT OFLESOTHO

HELD AT MASERU


In the matter between:

THE LIQUIDATOR

LESOTHO BANK (IN LIQUIDATION) Applicant

and

MPHANYESO SOLOMON MOLETE Respondent


For the Applicant : Miss P. Makhera

For the Respondent : Mr. T. Hlaoli


RULING ON POINTS-IN-LEMINE


Delivered by the Honourable Mr. Justice T. Monapathi on the 15tb day of May 2003


A useful background to the preliminary points which were argued by Counsel is necessary to record in order to fully appreciate the points taken.


This application came on notice of motion as a matter of urgency. The result was the interim order granted by Peete J on the 10th February 2003. The result was a notice of intention to oppose and answering affidavit if not more.


Substantially the application concerns a motor vehicle bought by the Respondent


Page 2


on suspensive condition in terms of the Hire Purchase Agreement. Without dispute this agreement having been reached as long ago as the year 1996 in the month of February. And that agreement, as one of the terms, provided that the Respondent, would pay Lesotho Bank (the old Bank) by instalments and there being a minor dispute about when in fact those instalments were extracted from Respondent's account instantly as agreed. I would believe that despite the agreement it was months after when the extraction of the instalments from the bank account of the Respondent was commenced. See annexure C1 and C2 on pages 21 and 22 of the record. Allegedly the Respondent was owing M41,677.16 out of the original loan amount of Ml 18,688.41.


This agreement, as it was envisaged, would take some three years less one month by which it would be completed in terms of intended instalments if they were fully paid. That is those number of months if the every month was obeyed by payment of instalment then three years from the beginning the agreement would be completed. What is important is to note that the three years passed and those instalments were not fully collected. It meant that the Respondent had since defaulted in a number of payments. This was common cause.


The Respondent places blame on the old Bank in that the Bank did not cause the extraction of the instalments by means of a stop order arrangement. He says the funds were available. I would find that at the time that this application was filed in fact there were instalments owing and the amount agreed upon had not been fully paid. I would


Page 3


find that beyond the three years months period and for about two years thereafter still

there was no complete payment of the total amount agreed. I would however find that it is not disputed that there was in fact a stop order arrangement. Those issues except as concern the points-in-limine are matters of the merits of the case.


What concerns me now is that there have been point-in-limine taken by the Respondent. One of the preliminary objections is a question of urgency. The other non disclosure of material facts and need for good faith. To start with I will find that the second point is not valid and ought to be dismissed outright. It was based on the failure of the Applicant to disclose that there was, as agreed a stop order agreement, for instalments to be extracted from Respondent's bank account. This was not material. This is so to the extent that the Respondent should have realized that the bank had delayed to extract those instalments and consequently over a period of more than four years the Respondent was in default.


This is an unfortunate application that one would have wished that the preliminary points be argued together with the merits as they are inextricably bound up with the preliminary points. As I have said about the merits I will reserve my opinion.


I now speak about this preliminary point about urgency. This technicality can assume many forms as I will show. To digress, first the Respondent was entitled to insist that the preliminary points be argued first. By saying that it is unfortunate that the points-


Page4


in-limine were not argued together with merits. I am not saying that Respondent was not


entitled to insist that the preliminary points be argued first. What I have observed is that it had been convenient and in the interest of justice that the merits and the points-in-limine should have been argued together. The further understanding is that the merits and the preliminary points would be argued together if the parties agreed so. What remains now is that I must speak about that preliminary point on the question of urgency.


Lawyers must begin to understand how the point about urgency is normally formulated. It takes two forms. One form is this: the applicant has not stated the reasons why the application is to be treated as urgent. The second one is: It is accepted that the matter is urgent but the Applicant was not entitled to apply ex parte without notice to the other side. It is the second query that I was asked to deal with. In doing so one must once again take stock of the history of the agreement between the parties.


This dispute is about three years starting from the day when the agreement was reached. It is further two years after that period of thirty five months. All along Respondent has been indebted to the Bank. At all times he was in possession of the vehicle. For these five years it was a situation where he virtually and all along the Applicant used this vehicle on the strength of the agreement. According to this agreement the bank was entitled to cancellation or repossession immediately if the Respondent defaulted by just one monthly instalment.


Page 5


The above is true because once the Respondent fell back in his instalments the Bank was entitled to say: "Oh! There is now risk of loss and deterioration to the vehicle." See paragraph 15 of the founding affidavit. So for five years this has been the situation almost. That there was risk of damage, deterioration to the vehicle is granted. Suddenly after five years the Applicant treats this case as a matter of urgency. The Applicant had even issued a letter of demand in the year 2002 to show that it was in no hurry at all.


It is a good argument if the contention is that the damage has always occurred and the risk of deterioration has always existed for this period of five years. But is not a good argument for the contention that there was no need for the Bank or Applicant to give Respondent a notice when applying ex parte. If Respondent was allowed to keep the vehicle for over three years or less there was no reason why it should not have served the Respondent before approaching the Court even granting that the matter was urgent. Incidentally my learned brother Maqutu J has in one case insightfully remarked at the increasing and regrettable disuse of The High Court Rule 8(2) and Form J of the Rules of the High Court. The anomaly created is that almost every application filed in the High Court is treated as an urgent matter unlike about fifteen years ago.


There is now need for a correct understanding that one has to be given notice that there is application for repossession of a vehicle or cancellation of agreement not because the matter is not urgent but that one must be given notice so that he may be heard when the remedy sought is so drastic. One must be given a chance to respond not because the


Page 6


matter is not urgent because there is no need as in the circumstance for an application

without notice. This is my finding.


There is a series of many cases which speak about applying on notice as which by no means negates that a matter is urgent. In other cases a matter may be extremely urgent so much that the subject matter he lost, may be dissipated or be made to disappear. The instant matter is not one of the latter category. The rule is discharged with costs.


This must be a lesson to the Applicant that in similar circumstances it is never necessary to take possession of the vehicle from "owners" who may even be truly debtors without giving them notice. One example is the present case. In this case the indebtedness was going on for five years. No action was taken against Respondent. Once action was taken it was taken without notice on the Respondent. The rule is discharged with costs.


T. Monapathi

Judge

15th May 2003