Ntai v Ntai and Others (CIV/APN/15/2003)

Case No: 
CIV/APN/15/2003
Media Neutral Citation: 
[2004] LSHC 131
Judgment Date: 
27 October, 2004

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CIV/APN/15/2003

IN THE HIGH COURT OF LESOTHO


In the matter between:

MAKEFUOE MOEKETSI NTAI Applicant

and

'MAMORAPELI NTAI 1ST RESPONDENT

NKULUBA NTAI 2nd RESPONDENT

METROPOLITAN LIFE LTD (LESOTHO) 3rd RESPONDENT

COMMISSIONER OF POLICE 4th RESPONDENT

THE ATTORNEY- GENERAL 5th RESPONDENT


For the Applicant : Mr. M. Ntlhoki

For the Respondent : Mr. K.D. Mabulu


JUDGMENT


Delivered by the Honourable Mr. Justice T. Monapathi On the 27th Day of October. 2004


This was an application for rescission and stay of execution of judgment, which judgment was granted by default on the 10"' March, 2003. The application was opposed.


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It helps to call the parties by their own names for convenience and because one of them, which is significant in my view, did not feature in the main application. The fact that the decision in this case will depend on that issues may make the following analysis seem redundant.


The Second Respondent (Nkuluba), as it was common cause, is the father of" the lated Ntoa Antony Ntai (the Deceased). The present Applicant (Makefuoe) and the 9"' December, 2002. and First Respondent (Mamorapeli) both claim to be rightful widows of the Deceased who died on the 9th December, 2002. 'Makefuoe contends that the First Respondent is the first wife of the Deceased. 'Makefuoe had however not been a party in the main application. But she was obviously a necessary party as I observe. Neither was the said Makefuoe mention as another wife of the Deceased in the main application which is even more embarrassing.


'Makefuoe who was Applicant had in the main application sought in that application an interdict, against the Nkuluha, and the three other Respondents. More especiaily in prayer 2 (a) against Nkuluba was to be prevented from collecting/and or receiving the monies:


"from the second and third respondent evolving from the insurance benefit and terminal benefit pending the outcome of this application and the second respondent to be ordered not to pay any such benefits to the first Respondent"



"ALTERNATIVELY


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  1. That in the event that 1" Respondent having received and collected such monies he should be ordered to pay them over to Applicant or alternatively be ordered not to spend such monies.


  1. That Applicant be declared and confirmed a lawful and rightful beneficiary and an heiress of the late Ntoa A. Ntai for the benefit of the minor child Morapeli Ntai.


  1. That Applicant should be declared the rightful person to release the insurance moneys due to the estate of her late husband Ntoa Ntai from second Respondent and as well as gratuity and leave pay from the third Respondent.


  1. Applicant should not be declared the sole custodian of all the deceased's belongings, property and personal effects, where they may be found on behalf of the minor child"


'Mamorapeli in the main application stated on affidavit that she was married by customary rites on the 26"' June, 2002. in support of the alleged agreement between Applicant and Deceased which was followed by agreement between the parties of bohali, which was paid by seven head of the cattle. A copy of the written agreement was annexed and marked "MN1"


'Mamorapeli went further to state further that after the death of Deceased the Ntai family confirmed her as heiress and beneficiary to the estate of the Deceased and this was attested by the District Secretary, in a letter/document annexed to the proceedings and marked "MN2"


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'Mamorapeli disclosed further that the Deceased had held two insurance policies with the Third Responded (Metropolitan) with " premium in amount(s) of M 250.00, M222.19 in policies No 4143081074 and 4147924459 respectively in which the beneficiary was not spelled out specifically"


The basis of Mamorapeli claim had further been that the second Respondent had withheld and concealed the said policies for purpose of lodging claims from Metropolitan life (Lesotho), the Third Respondent (the insurance house). That having been informed by Metropolitan the Nkuluba (Applicant's father-in-law) had already lodged the claim and was ready to collect the cheques therefore on the 16th January, 2003 or so soon thereafter unless interdicted from doing so. 'Mamorapeli felt that her said father-in-law was not entitled to the proceeds from Metropolitan.


'Mamorapeli stated further that since no beneficiary was nominated by the Deceased (insured), the person to benefit under such policies would therefore be the only heir/or heiress who was herself and not 'Mamorapeli. 'Makefuoe said he was unable to attach the said policies since they were withheld by the 'Mamorapeli as aforesaid. 'Makefuoe therefore claimed as shown in the prayers to the Notice of Motion.


It was following 'Makefuoe who appeared ex parte on the 17th January, 2003 that after service on the Respondent effected by the 27th February, 2003 that, on account of the Respondents not appearing in Court that a final Court Order was secured on the 10th March, 2003. The present application was a sequel to that final order.


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I have listened very carefully to issues that had to do with Application who averred that she had locus stand on the basis of a vested, direct and substantial interest in the main application.


I have furthermore, in this application for rescission, entertained argument on absence of wilful default, existence of bona fide such issues which are normally of relevance in applications of this kind.


This court was moved to use its discretion which was said to be wide and should be given "upon proper consideration of all relevant circumstances".


At a level that appeared to me to be quite sentimental it was suggested by Applicant mat at the root of all considerations is that justice be done between the parties and (with) that in mind the Court will balance the interests of parties and with that hind sight, was set to appeal to this Court about a serious defect which the present Applicant would have wanted to wish away. It is this one of lack of locus standi.


This latter statement (about that justice be done) was being said against the background that it had been argued by the First Resopondent that the Applicant did not have and would have no locus standi in judicio in an application for stay of execution and/or application for rescission when she had not been a party in the main application. I did not think this was seriously arguable.


In my opinion, despite that the Applicant was a necessary party in the main application, in the absence of an application for intervention in the main action she has not locu standi in judicio. On the ground this I


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took the view that application ought to be dismissed. First Respondent shall pay only one half (1/2) of the costs of this application.


T MONAPATHI

Judge

27th October, 2004