LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD IN MASERU
C OF A (CIV) 11/2023
In Re ALEXIS MPHAHAMA: APPLICANT
AND
MOOSA HOLDINGS (PTY) LTD 1ST RESPONDENT
MOOSA GROUP OF COMPANIES (PTY) LTD 2ND RESPONDENT
LESOTHO REVENUE AUTHORITY 3RD RESPONDENT
CORAM: MOSITO P
SAKOANE CJ
MUSONDA AJA
HEARD: 7 OCTOBER 2024
DELIVERED: 1 NOVEMBER 2024
SUMMARY
Court – Jurisdiction to review own decisions – Applicant seeking apex court to review its decision – principles governing exercise of jurisdiction to review own decisions – whether case made out for review.
JUDGMENT
SAKOANE CJ:
Introduction
[1] The applicant is a messenger of court. He was tasked by the judgment creditor with the duty to enforce an order to execute against the properties of the judgment debtor. During the ensuing process of execution and sale of the property of the 1st and 2nd respondents, reached a compromise which resulted in the assessment of the tax liability being revised downwards.
[2] The original writ to attach and execute was for property of the value of M3,143,116.05. After attachment but before commencement of sale, the respondents reached an agreement to settle by downward variation of the debt. This led the 3rd respondent to instruct the applicant not to proceed with the sale of the attached property.
[3] The question as to the amount of messengers’ fees payable to the applicant was fully discussed by this Court in its judgment in C of A (CIV)11/2023 delivered on 17 November 2023. The applicant was the 1st respondent in that appeal.
Application to review
[4] The applicant is back in this Court asking it to review its judgment in respect of the following four alleged errors:
4.1 He put the attached property on sale unilaterally without instructions from the judgment creditor.
4.2 He was not paid fees / expenses for performing his duty.
4.3 The agreement between the respondents to vary the debt downwards is defective because he was not included in its making.
4.4 He never received nor signed the letter of 10 May 2019 written by the judgment creditor to the judgment debtor copied to him.
[5] In an effort to make good his case, the applicant has annexed to the founding affidavit the following documents:
5.1 “Annexure ATM1” - a return of service dated 4/12/2015 confirming that he was paid fees of M31,500.00 “as part payment in terms of arrangement/ agreement set by Mr Asemie and Lesotho Revenue Authority”.
5.2 “Annexure ATM 2” - a letter written to him by the Lesotho Revenue Authority dated 30 January 2018. He acknowledged its receipt by signing on the following day of 31st January.
5.2.1 The letter is confirmation of a discussion with the 3rd respondent and the Managing Director of the 1st and 2nd respondents according to which the applicant agreed to accept M60,000.00 “as part of your fees”. The letter goes further to ask the applicant to invoice the 1st and 2nd respondents for payment of M60,000.00 to be made. Upon payment, the 3rd respondent would issue instructions to the applicant to “suspend execution of judgment and uplift attachment””.
5.2.2 “Annexure ATM 2” also puts the applicant on notice about an impending agreement to review the assessment of the tax liability.
5.3 “Annexure 3” – a letter the applicant wrote to 3rd respondent on 8 February 2017 enquiring about the finalization of the agreed review of the assessment of the tax liability.
5.4 “Annexure 4” – a letter by the 3rd respondent dated 6 February 2018 to the applicant. The latter received it the following day (7 February).
[6] There are two other annexures to the applicant’s further affidavit:
6.1 “Annexure A” – a copy of a report of the re-assessment process received by the applicant on 7 May 2019.
6.2 “Annexure B” – a letter dated 10 May 2019 written by the 3rd respondent to the 1st and 2nd respondents and copied to the applicant. By the copy, the applicant was instructed “not to proceed with the execution of the warrant issued in CIV/APN/MSU/91/2013 until advised otherwise by us.”
Discussion
[7] In an application of this nature, the applicant’s case must pass the following Hippo test[1] for this court to entertain it:
“[23] This Court can only exercise its review power in exceptional circumstances. This Court will view circumstances as exceptional only when gross injustice and or a patent error has occurred in the prior judgment. The power of this Court to review its own decisions should therefore not be a disguised rehearing of the prior appeal. It is therefore not a disguised rehearing of the prior appeal, going over it with a fine comb for the re-determination of aspects of that judgment. It is therefore not done for purposes other than to correct a patent error and or grave injustice, realised only after the judgment had been handed down.
[24] There is another aspect to which this case requires us to turn, viz. whether the Court has jurisdiction to set aside a final and definitive judgment on the merits of the dispute between the parties, after evidence had been led. In Childerley Estate Stores v Standard Bank of SA Ltd 1924 OPD 163, De Villiers JP was primarily concerned with the Court’s jurisdiction to set aside a final and definitive judgment on the merits of the dispute between the parties after evidence had been led. The issue in that case was whether the Court was empowered to set aside a final judgment on the ground that it was subsequently discovered that the judgment had been obtained as a result of fraudulent and false statements made by a witness during the course of the trial. Referring to a number of authorities, which had been quoted in support of the proposition that the judgments could be set aside under Roman-Dutch law on the ground of justus error, De Villiers JP remarked at 166 –
‘We arrive at this position then that so far as justus error is concerned default judgments may in some cases be set aside under the Roman-Dutch law on the ground of justus error, and that judgments, whether by default or not, may be set aside in the seven exceptional cases above-mentioned on the ground of instrumentum noviter repertum, though evidently some of those cases are nowadays obsolete and inapplicable; there are, further, the exceptional cases of setting aside a judgment in a matrimonial suit on the ground of justus error … There may be other exceptional instances. …On the contrary it seems clear that Voet, in stating that judgments may be set aside on the ground of fraud, and (in exceptional cases) on the ground of instrumentum noviter repertum (42.1.28) intends impliedly to exclude any other grounds ejusdem generis for setting aside judgments delivered in defended cases after both parties have been heard and the action has been fought to a finish.’”
[8] The crisp issue for determination is whether the annexures filed in support of the application evidence any patent error and or prove injustice that is realized after the Court had handed down judgment in C of A (CIV)11/23.
[9] The first four of the alleged errors of fact or law grounding the application, namely:
- unilaterally putting the property on sale;
- non-payment of fees/commission;
- the judgment creditor’s non-compliance with Rule 36(3) when suspending execution of a writ; and
- failure to involve the applicant in the agreement to re-assess the tax liability and vary it.
The above are findings of fact and law justified fully by the documentary proof referred to in the decision sought to be reviewed.
[10] Once it is accepted, as it must, that the judgment creditor and the judgment debtor are entitled to settle their dispute by agreement, judicial processes must yield. A compromise does not detract from the finality of the settlement agreement.[2]
[11] What the applicant is doing is to re-open the appeal instead of pointing out patent errors. I do not discern or see any errors, let alone patent ones, in the judgment we are called upon to review. I would, on this ground alone, dismiss the application.
[12] The only basis advanced for review worth considering is the allegation of false representation. The applicant contends that, it is a patent error of finding of fact that he was given written instructions not to put up on sale the attached property.[3]
[13] Indeed, on the face of it, it does not appear that the applicant signed to acknowledge receipt of the letter. But this on its own does not better his case because that letter is a response to that of the judgment debtors in which they were informing the judgment creditor about a letter of the applicant to them that he was going to sell their property. Secondly, the applicant has never been instructed by the judgment creditor to proceed with the sale. Thirdly, by letter of 19 June 2019, the applicant’s conduct of advertising the sale in newspapers was deprecated by the judgment creditor. In the circumstances, the applicant acted on his own in advertising the sale. That finding does not constitute a patent error or fraud.
DISPOSITION
[14] The application does not pass the Hippo test. The Court cannot invoke its review jurisdiction.
Costs
[15] The applicant represented himself. He is not legally trained. He genuinely, but mistakenly, believed that failure to be given a copy of the “Annexure B” by itself constituted fraudulent conduct on the part of the judgment creditor. I would therefore not make any costs order against him.
Order
In the result, the following order is made:
- The application is dismissed.
- Each party to bear its own costs.
_________________________________
S. P. SAKOANE
CHIEF JUSTICE
I agree
______________________________
K. E. MOSITO
PRESIDENT OF THE COURT OF APPEAL
I agree
___________________________
P. MUSONDA
ACTING JUSTICE OF APPEAL
For the Appellant: A. Mphahama (In person)
For the Respondents: Adv N. Hlalele