Ts'eliso Meko v 'Mamohapi Moetsane Poka (C of A (CIV) 11/2024) [2024] LSCA 6 (3 May 2024)

LESOTHO

IN THE COURT OF APPEAL OF LESOTHO

HELD AT MASERU C OF A (CIV) NO 11/2024

CCT/0119/2018

In the matter between:

TSELISO MEKO APPELLANT

AND

‘MAMOHAPI MOETSANE POKA RESPONDENT

CORAM: K E MOSITO, P

M H CHINHENGO, AJA

J VAN DER WESTHUZEIN, AJA

HEARD: 15 & 19 APRIL 2024

DELIVERED: 3 MAY 2024

SUMMARY

Appellant selling a piece of land to first respondent pursuant to an agreement of sale. First respondent paying the full purchase price and then confronted by a third party claiming superior right to same piece of land; In attempt to enforce her right to the land, first respondent suing the third party in Land Court; After putting a virilis defensio, first respondent later withdrawing suit upon third party showing that his (third party’s) title to the land incontestable. Appellant not taking steps to protect 1^st respondent against eviction by third party;

First respondent instituting action in High Court to recover purchase price and wasted costs in suit against third party together with interest on the amounts claimed; Appellant failing to enter appearance to defend action and default judgment ensuing;

Appellant applying for rescission of default judgment in High Court and court dismissing application; Appellant enrolling appeal and at same time seeking leave to appeal and filing condonation applications for late filing of record of proceedings and heads of argument – all at once and in a confusing and convoluted manner without regard to the rules of court;

On appeal, appeal struck off the roll with costs on attorney and client scale to mark court’s disapproval of egregious disregard of rules of court.

JUDGMENT

CHINHENGO AJA: -

Introduction

[1] This appeal raises the question whether a default judgment was properly entered against the appellant at the instance of the 1^st respondent. It also raises subsidiary questions whether (a) a return of service by the Deputy Sheriff was sufficient as prima facie evidence that a summons against the appellant was served on him and (b) whether the 1^st respondent put up a virilis defensio as purchaser of a property sold to him by the appellant. The default judgment was the subject of a rescission application by the appellant which was dismissed by the High Court (Mokhesi J) and this appeal was intended to be against that refusal.

Background

1. Purchase of Plot and Claim for return of purchase price

[2] In her combined summons commencing action in the High Court, the 1^st respondent alleged that the parties entered into an agreement of sale of Plot No. 15291-059 (“the Plot”) on 2 October 2015 and that she paid the purchase price of the Plot in the sum of M80 000.00 in full to the appellant. She alleged that the appellant induced her to enter into the agreement by misrepresenting that he was the lawful owner or title holder of the Plot. That representation was false because the appellant knew that the Plot did not belong to him and also knew that he had no right whatsoever to dispose of it. As an alternative basis of her claim the 1^st respondent stated that the appellant repudiated the agreement in that, from 2015 to the date of the summons, appellant failed to transfer the Plot or his interest in it to her. She had accepted such repudiation and therefore claimed a refund of the purchase price. The alternative basis of claim has not been pursued by the 1^st respondent and was not considered in the judgment dismissing the rescission application.

2. Genesis of claim: suit against Setipa and its withdrawal

[3] Before she instituted the claim which has resulted in this appeal, 1^st respondent discovered that one Phoho Joshua Setipa (“Setipa”) was on the Plot and was putting developments thereon. Believing that the Plot had been legitimately sold to her, she sued Setipa in Case No. LC/APN/32/2017 seeking Setipa’s eviction from the Plot. She did not pursue the litigation to its logical end. During the course of litigation, she became convinced that Setipa had an unassailable title to the Plot. He was a holder of allocation documents and a registered lease which showed that he was a lawful title holder of the Plot. She withdrew the proceedings against Setipa and instituted proceedings against the appellant in Case No. CCT0119/2018 for the return of the purchase price in the sum of M80 000.00 and legal costs in the sum of M9 400.00 incurred in the aborted suit against Setipa. She claimed interest a tempore morae at the rate of 18.5% per annum and collection commission at the rate of 10%. The appellant did not defend the action. A default judgment was entered against him by the late Chaka-Makhooane J on 30 May 2018 for what was claimed in the summons. I note that the application for default judgment was accompanied by an affidavit, presumably of evidence, setting out the basis upon which judgment was sought.

[4] Ordinarily an application for default judgment wherein the claim is for a liquidated amount is not supported by an affidavit of evidence. It is only where the claim is for unliquidated damages that such affidavit is filed. It seems to me that the respondent may have filed the affidavit out of an abundance of caution just in case her claim for legal costs was regarded as a damages claim. To that affidavit she attached the front page of the lease held by Setipa and issued to him by the Land Administration Authority in terms of the Land Administration Authority Act 2010. The Lease is for ninety-nine years commencing on 2 April 2017 and ending on 5 April 2107.

3. Application for rescission of default judgment and its dismissal

[5] On or about 2 July 2018 the appellant instituted urgent motion proceedings against the 1^st respondent for interim relief staying execution of the default judgment and, as final relief, the rescission of the default judgment. The 1^st respondent opposed the application. Her opposing affidavit was supported by the Deputy Sheriff who served the summons upon the appellant on 11 April 2018.

[6] The application for rescission of judgment was heard on 2 June 2022 and judgment dismissing the application was delivered on 18 August 2022, the learned judge finding that the appellant was properly served with the summons and wilfully defaulted in entering an appearance to defend. He also found that the appellant failed to show that he had “a bona fide triable defence.” Altogether he found that appellant had not made a case for the rescission of the default judgment.

Appeal against refusal of rescission

[7] The appeal against the refusal to grant a rescission of judgment is based on two main grounds, namely – that the judge erred by failing to appreciate that the Deputy Sheriff had misled the court about service of the summons and that the judge should have held, as contended by appellant, that the summons was not properly served contrary to what the Deputy Sheriff alleged, and secondly, that the judge erred “in holding that application for rescission was not bona fide or failed to advance a bona fide defence to the claim with a prima facie prospect of success.”

[8] The appellant filed four grounds of appeal but at the hearing of the appeal his counsel conceded that the first two were materially the same and the third was not sustainable at law. The latter was to the effect that the judge “came to erroneous conclusion that the appellant did not meet the jurisdictional requirements contained in Rule 27 of the High Court Rules 1980.” This ground of appeal was drawn up on the mistaken understanding that, where default judgment is sought against a party that has not entered an appearance to defend, a notice of set down for the hearing of the default judgment application must be served on the opposite party when the rule clearly provides that no such notice needs be given. Counsel conceded and abandoned the third ground of appeal.

[9] The notice and grounds of appeal were lodged on 27 February 2024. On the same day the appellant filed an application for condonation for late filing of the notice of appeal and the record of appeal. This was some eighteen months from the date of delivery of judgment on 18 August 2022. The proper sequence of filing an application for leave to appeal is to make the application and attach thereto the proposed notice and grounds of appeal.

[10] In terms of Rule 4(1) of the Court of Appeal Rules 2006 an appeal must be lodged within six weeks of delivery of the judgment appealed against. If a person fails to lodge an appeal within the six weeks, he must apply for leave to appeal to be determined by the Court first before filing any other process or pleadings. In this case the appellant lodged the notice and grounds of appeal and then filed the leave application which he sought to be heard on 12 April 2024 during the session of the Court of Appeal commencing on 8 April 2024. Meanwhile the appeal proper had somehow been set down for hearing on 15 April 2024 before the pleadings in the leave application could close and before the leave application itself was heard and determined. This meant that unless, somehow, the application for leave could be heard on 12 April 2024 the parties could only appear before the Court on 15 April 2024, being the date on which the appeal proper was enrolled for hearing. In the event the parties first appeared before the Court on 15 April 2024. Predictably, by that time the appellant had not filed his replying affidavit in the leave application. It was impossible for him to have done that and for the parties to have complied with the timelines for the filing of pleadings in the leave application as provided in the rules. The first hearing of the matter on 15 April 2024 had to be postponed to 19 April 2024 to allow the parties to file all the necessary pleadings. The monstrosity of the approach adopted by the appellant is demonstrated by the fact that he filed his heads of argument in the appeal on 5 April 2024 and the 1^st respondent filed her answering affidavit and heads of argument on 15 April 2024. All this was done before appellant’s replying affidavit in the leave application had been filed.

Application for leave to appeal

[11] In his application for leave to appeal and condonation for late filing of the record of proceedings, which two applications should not, strictly speaking, have been combined into one application, the appellant’s legal representative averred that he was “belatedly provided with a copy of the judgment sometimes in January 2023 in respect of the order appealed against.” He further averred that the appellant is “an indigent old man” who struggled to raise legal fees and was able to do so after selling “his other plot”. The explanation for the delay in applying for leave to appeal is therefore that the appellant only became aware that judgment had been delivered in January 2023 and that at that time he had no funds with which to pay legal fees to be incurred in the application for leave and in the appeal itself. It was averred that it took a year for the appellant to raise the funds, hence the application for leave was made in February 2024. Appellant’s legal representative explained the approach he had taken as follows –

“… this Honourable Court is prayed to condone the late noting of the appeal. I have already caused the preparation of the heads of argument and the record of proceedings. This is the convenient way of assuring this Honourable Court that we are prepared to execute the mandate of the client now that we had been put into funds.”¹

[12] The deponent to the founding affidavit in the leave application, Adv. Monate, dealt not only with the reasons for the delay in applying for leave to appeal, but also with appellant’s prospects of success on appeal. The appellant himself only filed a supporting affidavit in which he stated - “I align myself with the contents of the affidavit of my lawyer. I am prepared to prosecute this appeal.”

[13] Adv. Monate averred that in the action against appellant by 1^st respondent, Setipa should have been joined as a party because he has a direct and substantial interest in the matter. It is not clear to me how this could be correct when Setipa, quite evidently, was not and cannot conceivably be an interested party in 1st respondent’s action to recover the purchase price, a matter on which 1^st respondent also adversely commented. The averment was however made and must be considered for whatever it is worth. Adv Monate goes on to criticise the decision of the judge in these terms:

“The judgment of the court a quo makes no reference to the irreconcilable versions of the parties in LC/APN/32/2017. The necessary evaluation of the rival allegations was simply not undertaken. No court would have been in a position to come to the conclusion favourable to the [1^st] respondent on the basis of the facts in LC/APN/32/2017. The learned judge had no basis and gave no reasons for the rejection of the applicant’s version in LC/APN/32/2017. What the judge did do was to hark back to the proceedings which I have mentioned for purposes in terms critical of the applicant.”²

[14] He makes the further averment that the judgment refusing rescission was granted “on a fabricated piece of evidence which had conceivably jeopardised the defence of the applicant … that he had not been served with the papers … he would have opposed the proceedings going by default had he been served with the summons.”³

[16] It cannot escape notice that the pleadings in the application for leave to appeal and the condonation for late filing of the heads of argument and, in particular, the late filing of the replying affidavit were all done by appellant’s lawyer and not appellant himself. It is the lawyer who explained the delay after realising that the judgment in the rescission application had been delivered in August 2022. It is the lawyer who explained why the appellant did not immediately lodge the leave application soon after becoming aware of the judgment. It is the lawyer who states that the appellant had no funds to mount this appeal but does not explain why, upon receiving the rescission judgment he, as legal representative, did not merely note the appeal so as to avoid an application for leave to appeal. Adv. Lephuthing, who appeared for the appellant at the hearing of this matter, entreated this Court to consider the issues from a social justice perspective by taking into account appellant’s impecuniosity at the relevant time without explaining why from the same perspective he did not note the appeal and await his fees when the appellant had found the money with which to pay his fees. Quite clearly the appeal was not lodged in time because appellant’s lawyers wanted payment of their fees before they could take any action on behalf of the appellant. And then they have the audacity to speak of social justice.

[17] The 1^st respondent opposed appellant’s triple applications for leave to appeal, condonation for late filing of the record of proceedings and condonation for late filing of heads of argument. As earlier stated, there is a slight mis-characterisation of the appellant’s application: it should have been for leave to appeal only. The condonation for late filing of the record of proceedings and the heads of argument could, if necessary, have been made only after a favourable decision on the leave application. The filing by appellant’s legal representative of the application for condonation of late filing of the record of proceedings and the heads of argument on 5 April 2024 was premature.. When the 1^st respondent filed her opposing affidavit on 15 April 2024, appellant’s applications, one for leave to appeal and condonation of late filing of the record and another for condonation of late filing of heads of argument had been lodged on 27 February and 5 April 2024, respectively. So, the 1^st respondent was opposing the applications in one affidavit when she filed her answering affidavit on 15 April 2024.

[18] In her opposition, the 1^st respondent averred that the default judgment was granted on the basis that there was sufficient or conclusive evidence that the summons had been properly served upon the appellant and the appellant had been in wilful default of entry appearance to defend the action. The propriety of the service of the summons is demonstrated by the Deputy Sheriff’s return of service as amplified by his affidavit in support of 1^st respondent’s answering affidavit, detailing how the service was effected. Responding to the issue of the non-joinder of Setipa, 1^st respondent averred that Setipa was not, and is not, an interested party in her suit against the appellant in which she seeks the cancellation of the agreement of sale, a refund of the purchase price and the payment of legal costs wasted in pursuing the litigation against Setipa in Case No. LC/APN/32/2017; the latter occasioned by the appellant’s failure to protect her against Setipa’s claim that he is the lawful title holder of the Plot. The 1^st respondent also reacted to appellant’s criticism that the judge a quo failed to evaluate evidence and rival allegations in Case No. LC/APN/32/2017. She said that the judge had no business evaluating matters in Case No. LC/APN/32/2017: that matter was not before him in the Commercial Court nor was the Commercial Court reviewing it. She said that the only relevance of Case No. LC/APN/32/2017 was that it demonstrated that Setipa had lawful title to the Plot as contrasted with appellant. This, according to the 1^st respondent, is supported by the fact that to date appellant has not challenged Setipa’s title to the Plot.

[19] The 1^st respondent urged this Court to take note of what she alleges to be appellant’s dishonesty, starting with his misrepresentation that he was the owner or had lawful title of the Plot when he sold it to her, and then his assertion that he was not served with the summons; his false statement that he did not become aware of the rescission judgment until January 2023 when the delivery date of the rescission judgment was published on the court roll, as is the normal procedure, and finally, his false assertion that he is indigent when he has pieces of land that he could sell, as he did in the end, to raise legal fees levied by his lawyers. The 1^st respondent also contended that the appellant fell short of showing that he has reasonable prospects of success in the appeal against refusal of rescission.

[20] The 1^st respondent opposed the appellant’s application for late filing of the heads of argument in the appeal. She stated that the time table for filing the heads in respect of matters to be heard in the April session of this Court was published by the registrar and that the appellant failed to show good cause for failing to meet the set timelines. She averred that the appellant failed to show, in relation to the leave application, that he has reasonable prospects of success on appeal: the application for condonation for late heads of argument also does not disclose any better prospects. She prayed for the dismissal of the application for leave to appeal, the application for condonation of the late filing of the record of proceedings and the application for the late filing of appellant’s heads of argument.

[21] Whereas the 1^st respondent opposed appellant’s applications, on her part she also filed, on 15 April 2024, an application for condonation for late filing of her own answering affidavit and heads of argument, all in reaction to the muddled way in which appellant approached this matter. The explanation by 1^st respondent for her failure to file the heads of argument in time is detailed and reasonable. It was not opposed by the appellant, obviously because appellant had similar kind of applications for which he craved the indulgence of the Court.

Confusion occasioned by appellant

[22] I think it is important to again sketch the picture as it confronted this Court and the 1^st respondent at the instance of the appellant. It is incomprehensible, to say the least, how the appellant was able to get this appeal on the roll for this, the April 2024 session of the Court. Judgment in the rescission application was delivered on 22 August 2022. Appellant alleged that he only became aware of the judgment in January 2023. He noted the purported appeal on 27 February 2024. That filing was in reality, and procedurally speaking, an application for leave to appeal, and should only have been such application and no other. Before he was granted leave to appeal, appellant applied, in the same application for leave, for condonation of late filing of the record of proceedings. As if that was not enough, on 5 April 2024, before filing his replying affidavit, he applied for condonation for late filing of heads of argument in the appeal. He filed his replying affidavit in the leave application on 19 April 2024, that being the date of hearing after an adjournment on 15 April 2024 to allow for all pleadings to be filed. He handed the replying affidavit over to the members of the Court from the bar at the beginning of the final hearing on 19 April 2024. The Court considered it imprudent in the circumstances to postpone the hearing again. The members thereof had read the heads of argument already filed and the record of proceedings and proceeded to hear the parties. This, as must be self-evident, was confusion galore created by the appellant and his legal representatives.

[23] In terms of the rules of this Court, all the appellants had to do was to apply for leave to appeal because he had not, as required by Rule 4(1) of the High Court Rules, filed his notice of appeal within six weeks of delivery of the judgment or within six weeks from the time that he became aware of the judgment, if he is to be believed. So, when he filed the application for leave on 27 February 2024, the respondent had, in terms of Rule 3 (4), fourteen days within which to file her answering affidavit. After that the appellant had, in terms of Rule 3(5), seven days to file his replying affidavit. That application for leave to appeal could not, in terms of Rule 3(8) be accompanied by the record of proceedings or traverse extraneous matters. Rule 3 further provides –

“(10) Not later than twenty-eight days prior to the date of hearing of the application for leave to appeal in both criminal and civil matters, the applicant shall deliver written heads of argument together with a list of authorities to be quoted by him and seven copies shall be filed with the Registrar and one copy served on each respondent.

(11) The respondent shall file heads of argument in the same way not later than fourteen days prior to the date of hearing.

(12) If the Court grants leave to appeal, it may fix the time within which the record may be lodged with the Registrar and, in a civil matter, it may order the appellant to give security for costs of the other parties, the amount of such security to be fixed by the Registrar.”

[24] If granted leave to appeal by the Court, appellant had three weeks within which to deliver his notice of appeal. The time frames for applying for leave to appeal, the filing of necessary pleadings by both parties, the hearing of the application and the filing of the record after the grant of leave did not permit of the appellant to have had this appeal enrolled for hearing on 15 April 2024. If the appellant had followed the Rules of Court, he would not have had to file the condonation applications nor would the 1^st respondent. The appellant disregarded the Rules of this Court with abandon and created the confusion that constrained this Court to direct that that it would hear the parties on the application for leave to appeal, the condonation applications and merits of the appeal and later decide the route to take. The Court thus received written and oral submissions from the parties.

Leave to appeal

Explanation for failure to apply for leave timeously

[25] The granting of leave to appeal is predicated on two basic requirements. The applicant therefor must give a reasonable and satisfactory explanation for the failure to file the notice of appeal within the prescribed time frame. He must show reasonable prospects of success in the appeal. Upon satisfying the Court on these two requirements the Court would grant leave to appeal.

[26] The appellant’s explanation for failing to file the notice of appeal is very much contested by 1^st respondent. The 1^st respondent disputes that the appellant only knew in January 2023 that the rescission judgment had been delivered, when, as a matter of fact, the judgment was delivered on 22 August 2022. She states that, as dominis litis in the rescission application, appellant should have been more diligent in seeking to ensure that the judgment was made available to him or both parties as soon as it was delivered. As far as the 1^st respondent is concerned there is no way the appellant did not know that the judgment was delivered on 22 August 2022 because a court roll indicating the date of delivery was published and, and as usual, it was made available to all legal practitioners. Appellant’s legal representative could not have failed to see that the roll had been published. The 1^st respondent attached to her answering affidavit a copy of the court roll of 18 August 2022, which shows that the delivery of the judgment on that date was published in the normal way.

[27] It is 1^st respondent’s contention that after the appellant became aware of the judgment, as he says in January 2023, there was no good enough reason that he only applied for leave to appeal a year later in February 2024. She disputed appellant’s assertion that he is indigent. She points to his having pieces of land, one of which he had to sell to raise fees for his legal representative, as indicative of him having the necessary means to ensure that he pursued his rights timeously.

[28] I have related how the appellant handled his application for leave to appeal and how he filed applications for condonation when that was unnecessary if only he had followed the rules of court. I am satisfied that in so far as the delay in applying for leave to appeal, the appellant has no reasonable explanation for the delay. His explanation is spiced with half-truths. Added to that is the confusion that he created by seeking to enrol the appeal prematurely thereby constraining the 1^st respondent and the Court to reckon with issues of condonation which should never have arisen in the first place.

Prospect of success on appeal

[29] It will be recalled that the appellant and 1^st respondent entered into the sale agreement on 2 October 2015. The certificate of allocation, Form C2, attached to 1^st respondent’s opposing affidavit, duly signed by the chairman and another member of the Land Committee was given to the 1^st respondent on 8 October 2015. This was before the registration of the lease in the Setipa’s name. Another certificate of allocation, also a Form C2 duly signed by a member of the Allocating Authority of Council, was issued to the 1^st respondent on 19 April 2018 after registration of the Plot in Setipa’s name.

[30] It is not clear what happened in respect of the transfer of the Plot to the 1^st respondent between 2 October 2015 (date of sale), or 8 October 2015 (date of issue of the first Form C2) and the date when 1^st respondent commenced action in the Land Court in Case No. LC/APN/32/2017. The date of commencement of Case No. LC/APN/32/2017 and the date of its withdrawal are not stated in the founding papers.

[31] The summons in the matter on appeal was issued in March 2018 and the application for default judgment was made in May 2018. It is therefore readily apparent that whilst the agreement between the appellant and 1^st respondent was concluded before the Plot was finally acquired by Setipa in April 2017, the claim for a refund of the purchase price and the wasted costs of litigation was only made in 2018 after Setipa acquired the Lease. On 30 May 2018 the late Chaka-Makhooane J granted default judgment for the relief claimed by the respondent. The appellant was served with the order (default judgment) on or about 26 June 2018. He lodged an urgent application in the High Court for stay of execution of the order, rescission of the default judgment and leave to defend the action by filing a plea.

[32] The appellant’s founding affidavit in the rescission application discloses certain facts which were not disclosed in detail by the 1^st respondent in her combined summons. They are that in August 2017 the 1^st respondent sued Setipa and his wife in the Land Court. In those proceedings she made it clear that she had been allocated the Plot pursuant to the sale agreement and produced to the Land Court material evidence of the allocation of the Plot to her by the Kanana Community Council, that being the certificate of allocation, Form C2. For reasons unknown to appellant, 1^st respondent withdrew the proceedings against Setipa. He said that he suspected that she and/or her lawyer, in collusion with Setipa’s lawyer, “struck a deal”, details of which he is not aware. In this connection he avers that the 1^st respondent should have defended her title to the Plot and called him as a witness. In so alleging appellant states that 1^st respondent –

“… could have strongly defended her title to land, but her case was handled in such a way that she was out-witted by Hon. Joshua Setipa for reasons best known to her and her lawyers. Her lawyer actually consulted me to the extent of demonstrating a reasonable suspicion, based on reasonable grounds about the lease which Hon. Setipa and his people at LAA executed. I was her witness number one in the case but I was never called to testify for reason known to her. This is very important because she should not have withdrawn the matter on the basis that Hon. Setipa had managed to secure lease post allocation of the place to her. No person in her right mind can voluntarily forfeit her entitlement to land by way of withdrawing the case when the Chieftainess of the area, members of the Land Allocation Council and the Registrar of Lands were willing to throw their lot in support of her case by viva voce evidence. This is ridiculous and looks more suspect. I do not have details of the deal she struck with Hon. Setipa because I have since established that their lawyers are close friends, and I cannot discount the possibility of a deal being sealed between them given their intimate relationship.”⁴

[33] Appellant avers that he was the title holder of the Plot when he sold it to the respondent. He however did not produce any concrete evidence of his title. He avers that after the agreement of sale he transferred his rights and interest in the Plot to the 1^st respondent and thus discharged his obligations under the agreement. The 1^st respondent was allocated the Plot by Kanana Community Council following the sale and a certificate of allocation was issued to her in terms of s 23 of the Land Act 2010. After the withdrawal of the case the parties met. The 1^st respondent and her lawyer attempted to cajole him into signing a document drafted by them and requiring him to acknowledge indebtedness to the 1^st respondent. He refused to sign the document. Thereafter they gave him to understand that 1^st respondent would re-institute her claim in the Land Court for cancellation of Setipa’s allocation. That was not done. According to appellant, the failure to re-institute the matter in the Land Court when according to him 1^st respondent’s title to the Plot is unassailable, is of crucial importance. He believes that the allocation of the plot to 1^st respondent –

“is set in sufficient factual context to convey her legal title in acceptable detail in the records of Kanana Community Council. This is the critical factor of my defence because the necessary evaluation of the rival allegations over title to the disputed land was simply not undertaken in the Land Court. I maintain that had the matter proceeded, no court would have been in a position to come to a conclusion favourable to Hon. Setipa on the disputed facts before Justice Sakoane because the land in issue was rightly allocated to [respondent].”⁵

[34] The appellant denies in very strong terms that he neglected to defend the matter or that he was in wilful default of entering an appearance to defend the 1^st respondent’s claim for a refund. He says:

“I strongly assert that I had at no time neglected to defend this matter. I have not been served with the summons. I have not at any given time met the Deputy Sheriff Masenyetse. I have not seen him, and it is regrettable that his return of service suggests I declined to sign for receipt of the summons. I am an old man and there is just no way could I have declined to sign for the receipt of the summons on the 11^th of April 2018. There is need for viva voce evidence in this regard in terms of the Rules. I want to see who Mr Masenyetse is and cross-examine him over his bogus return of service. I had only become aware of the Court Order which I found left at my home.”⁶

[35] It is against this background that appellant prayed for the rescission of the default judgment.

[36] Regarding the wasted costs in Case No. LC/APN/32/2017, it was appellant’s contention that those costs “cannot be visited at his door.” He says that 1^st respondent was defending her title to the Plot and withdrew the case for reasons known only to her and her legal representative. The land is hers by virtue of the sale and only subject to her applying for the cancellation of the lease granted to Setipa. Appellant averred that the competent court to have dealt with the cancellation of Setipa’s lease is the District Land Court and not the Land Court “as correctly pointed out to respondent’s legal representative by Justice Sakoane”. So, the averment goes, in addition to improperly withdrawing her case from the courts, 1^st respondent instituted her claim in the wrong forum, Land Court instead of District Land Court. Appellant cannot therefore be liable for any costs incurred in that mishandled litigation. He also points out that the 1^st respondent withheld from the court the contains of case No. LC/APN/32/2017 and the certificate of allocation to her in order to obtain the default judgment by stealth. Appellant contended that the rescission sought will, if granted, enable him to place his defence before the High Court, which he believes has good prospects of success.

[37] The 1^st respondent’s answer to the claim for rescission and ancillary relief was detailed and lengthy but it boiled down to the following. The appellant was served with the summons by the Deputy Sheriff and for no apparent or convincing reason he did not defend the matter and a default judgment was entered against him. The Deputy Sheriff deposed to an affidavit in which he confirms service and additionally points out that he called the appellant to his office and served him with the summons thereat. She argues that appellant did not deal with the latter averment of the Deputy Sheriff in his reply although, as against 1^st respondent, he reiterated his assertion that he was never served with the summons.

[38] In regard to the appellant’s averments aimed at showing that he has a prima facie and bona fide defence, 1^st respondent averred that she did not acquire title to the Plot when appellant purported to sell it to her. The Form C’s issued by the land allocating authorities were forgeries and no record of them exists in the offices of the Land Administration Authority. An officer of the Authority was prepared to testify in Case No. LC/APN/32/2017 that no record of any allocation to the appellant or the 1^st respondent can be found in the Authority’s office. The 1^st respondent averred that the appellant had a duty to assist her to defend her title to the Plot and that he failed to do so. When she instituted action in the Land Court in Case No. LC/APN/32/2017, she had to withdraw the proceedings because there was overwhelming evidence that Setipa’s title to the Plot in the form of the Lease and other documents, was unassailable. Therefore, she could not have mounted any sensible or sustainable case against Setipa’s title even had the appellant testified. It was after all appellant’s obligation to ensure that 1^st respondent’s right to the Plot was defended. The 1^st respondent also contended that there was no evidence to prove that appellant had any right or interest in the Plot which he could have lawfully passed onto her; consequently 1^st respondent herself only held a forged Form C as against Setipa’s lease. Even had the Form C been properly issued to her that still could not have defeated Setipa’s title in the form of a registered lease.

High Court decision

[39] The High Court decision dismissing the rescission application was based mainly on two findings as articulated by the learned judge. The first is that despite his denial, appellant failed to dislodge the 1^st respondent’s assertion that he was properly served with the summons and that he wilfully neglected or failed to enter appearance to defend the action against him. He rejected appellant’s denial of service after considering the law relating to service of process. He accepted and relied on the principle that the Deputy Sheriff’s return of service is prima facie evidence of service. In this regard he referred to Ramphala v Barclays Bank PLC & Another⁷, Doti Store v Herchel Foods (Pty) Ltd⁸ and Deputy Sheriff of Witwatersrand v Goldberg⁹ to the effect that where a person seeks to impeach a return of service, he can only do so successfully by adducing the clearest and most satisfactory evidence as stated in Goldberg . The evidentiary burden is ordinarily upon the person attempting to impeach the return of service, a legal position propounded with lucidity in an earlier case, Sussman & Co (Pty) Ltd v Schwarzer¹⁰, where the court said-

“If the respondent wishes to impeach those facts then the onus shifts to him to show by clear evidence that although the return shows that the requirements of sec. 8(b) have been complied with, they were in fact not complied with and that the return is not a proper return. Where however the return itself does not show that the requirements of the subsection have been complied with, the onus is not shifted, and it rests on the applicant to show that in fact the requirements have been complied with and that the return is in fact a nulla bona return.”

[40] The reasoning of the learned judge shows that he was satisfied that the evidential burden remained on the appellant and did not shift to the 1^st respondent. Before accepting the learned judge’s conclusion, it is necessary to closely examine the return of service. The return is not entirely satisfactory when looked at in isolation from other evidence. It reads –

“I, V. Masenyetse Deputy Sheriff of the High Court of Lesotho and much as entrusted with the service of the Court Process state that upon the defendant I served a copy of the summons. The nature and exigency were read clearly to the receiver but he declined to sign.

Served on 11-04-2018.”

[41] The return does not state in the clearest of terms that the Deputy Sheriff delivered “a copy of the process personally to the person to be served” as required by rule 4(1)(a) of the High Court Rules. It does not specify the time when, and the place where, service was effected. The inadequacy of the return was however cured when the Deputy Sheriff filed an affidavit in support of the 1^st respondent and stated that he had called the appellant to his office and delivered the summons to him personally. Either through inadvertence on his part, or as a deliberate avoidance to engage the Deputy Sheriff on his assertion, the appellant did not deal with the Deputy Sheriff’s averments in the supporting affidavit. This failure prompted the learned judge to say-

“We are concerned with motion proceedings whose purpose is to resolve legal issues based on common cause facts. Where disputes of fact arise, the final order can only be granted if the facts averred by the applicant in his affidavits, which have been admitted by the respondent justify the order. This will be the case if the respondent’s version consists of bald and untrustworthy denials, is palpably implausible, far-fetched or so clearly untenable that the court is justified to reject them merely on the papers without the need for viva voce evidence (National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at para 26 relying on Plascon-Evans Paints v Van Riebeck Paints [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E- 635D).”¹¹

[42] And also to say-

“The disputes of fact in this case must be resolved based on these principles. Given that the Deputy Sheriff’s averments have not been denied, it follows that they stand unchallenged. And therefore, in light of this, the version of the respondents that the applicant was served is the preferred one. The applicant is merely making bald denials without adducing evidence. In my considered view, the applicant was in wilful default.”¹²

[43] The second leg of the inquiry whether the appellant has reasonable prosects on appeal relates to the bona fides of his defence. In this connection the learned judge examined the situation arising from the aborted litigation in Case No. LC/APN/32/2017. He considered appellant’s averment that the 1^st respondent and her lawyers did not mount a determined case against Setipa and they failed to re-instate the matter in the district Land Court without good cause and consequently failed to apply for the cancellation of Setipa’s lease when, as appellant contended, the allocation of the Plot to 1^st respondent by the Kanana Community Council was beyond reproach. The learned judge observed that the appellant did not appreciate that, as seller, he was under a continuing obligation to ensure that the 1^st respondent, as buyer, remained undisturbed in her occupation of the Plot. He said that this was stated in Kleyhans Bros v Wessel’s Trustee ¹³ where the position of the law was put thus-

“All I [as the seller of property] undertake to do is to give you possession of the thing, and my contract implies in law a guarantee that I will see that you are not deprived of the thing by one who has a better title to it than I. A contract of sale with us does not have the effect of a translatio domini; it is simply an obligation to give vacant possession coupled with the further legal consequence of a guarantee against eviction.”

[44] The learned judge said that if the seller does not protect the buyer’s possession after he has been informed of the threated dispossession, the buyer is expected only to put up a reasonable defence of her title and if he fails in the suit, then the seller cannot afterwards successfully resist a claim for breach of warranty against eviction on the basis that the buyer should have been more skilful in resisting the third party’s claim. He found that the appellant laboured under a misconception that since he secured a certificate of allocation for the 1^st respondent, he was no longer obliged to assist the buyer and protect her against claims by third parties asserting a better title. The learned judge concluded-

“In the present matter the 1^st respondent lost possession of the site when Mr Setipa started making developments on it. She sought to resist but was convinced that Mr Setipa has an unassailable right to the site. This entitled her to claim compensation (Cordiant Trading CC v Daimler Chrysler Financial Services 2005 (4) SA 389 (D & CLD) at 399E-F). The applicant should have intervened to protect the 1^st respondent’s possession, but he did not do so. As we have seen he cannot blame the unskilfulness of the 1^st respondent’s counsel in handling the matter. It follows that the applicant did not show that he has a bona fide triable defence.”¹⁴

[45] The learned judge found against the appellant on the appellant’s failure to give a reasonable or acceptable explanation for his failure to enter an appearance to defend the action and on the reasonableness of his defence on the merits. He accordingly dismissed the appellant’s application for the rescission of the default judgment entered against him.

Disposition

[46] It must have dawned on counsel on both sides that the matter before the Court was primarily the application for leave to appeal in respect of which they had to deal with the appellant’s explanation for failure to file the notice of appeal within the prescribed period, the extent of the delay and the prospects of success on appeal. The heads of argument and the oral submissions ultimately focused on the primary issue before the Court although they necessarily had to advert to the reasons for granting the default judgment in the first place.

[47] In contesting the learned judge’s decision refusing rescission of the default judgment appellant’s counsel appears not to have fully appreciated the real issue that constitutes the dispute between appellant and 1^st respondent arising from the sale of the Plot. The issue was in proper legal parlance, whether the 1^st respondent made a virilis defensio or that she was able to show that Setipa’s title was incontestable. As stated in the judgment in the court a quo, there is a residual warrant by virtue of which the seller undertakes that the buyer will not be disturbed by the seller or a third party in his vacua possessio (undisturbed possession) as a result of any defect in his title and that the seller will assist the buyer in his defence against third parties, provided he informs the seller of the third party’s claim in good time. The implied warranty against eviction is not that the buyer will not be vexed by the unlawful acts of others but only that the buyer will not be lawfully evicted because of defective title. This means that the seller will be liable only if someone lawfully interferes with the buyer’s possession and such lawful interference is the result of a flaw in the seller’s title.

[48] Eviction not only covers deprivation of the buyer of possession by a third party who proves in a lawsuit that he has a better title than the buyer but also includes those cases where even without legal recourse the buyer is compelled to surrender the thing sold to a third party whose title is incontestable. This is the situation that the 1^st respondent was confronted with when she came to realise that Setipa’s title was unassailable. A buyer is required to give the seller good notice of a third party’s claim to possession so as to give the seller the opportunity to fulfil his general obligation to protect the buyer in his possession. The seller can do this either by negotiating with the third party or by himself participating in an action instituted against the buyer or by assisting the buyer during the action. If the buyer fails to give notice, he will have recourse against the seller only if the third party’s right is incontestable or it is the seller’s fault that the notice did not reach him in time. Where the seller fails to assist the buyer for any reason, the buyer himself must make a virilis defensio, unless, again, he can prove that the third party’s title is legally unassailable - York & Co (Pvt) Ltd v Jones NO¹⁵ in which the court was satisfied that the buyer had conducted its case as a reasonable litigant and had thus put up a virilis defensio.

[49] The 1^st respondent in this appeal employed a lawyer to act for her against Setipa; she brought proceedings in the Land Court to assert her right, she advised the appellant of the proceedings and gave him the opportunity to decide whether he would intervene as a party or not and then she conceded and withdrew the case, on the advice of her lawyer, when she became convinced that Setipa’s title was incontestable. In my view she acted as a reasonable and prudent litigant would act. I am satisfied that there was no manifest error in her approach and that, accordingly, she made a virilis defensio. See also Lammers and Lammers v Giovannoni¹⁶ referred to by the learned judge at paragraph [21] of the judgment. In that case the court made it crystal clear that the basic obligation of the seller arising from the warranty against eviction is to protect the buyer in his possession and, if he fails to do so, “he must restore the price and pay the damages suffered by the buyer as a result of the conviction.”

[50] The appellant’s counsel, persistently in error, argued in his affidavits and heads of argument in the High Court and in this Court, that appellant had passed on his rights in the Plot to 1^st respondent and discharged his obligations towards her such that 1^st respondent’s failure to deal with Setipa had really nothing to do with him, forgetting, as he should not have done, that he had a residual obligation to protect the 1^st respondent against eviction and that that protection depended on his own right or entitlement to have sold the Plot to her. This means that in regard to the question whether he had shown good cause for rescission, he fell far too short on prospects of success in the appeal.

[51] The learned judge a quo’s conclusion cannot be faulted - that the appellant failed to show good cause for rescission arising from his contentions that he was not served with the summons and that he had reasonable prospects of success on the merits. If this this appeal were to be disposed of on appeal on the basis of its merits, the appellant would not succeed. However, the matter is disposed of on a different basis altogether.

[52] The manner in which the appellant and his legal representatives handled the matter from the time that the rescission judgment was granted, in particular the confusion that they caused by failing to follow the rules of court and incomprehensibly enrolling the appeal before leave to appeal was granted, are a cause of great concern. Equally important for the decision of this court is the appellant’s failure to establish good cause for the grant of leave to appeal. They failed to show any error or misdirection in the judgment refusing rescission of the default judgment as amply demonstrated in this judgment. These considerations impel this Court to refuse to grant leave to appeal and to strike the appeal off the roll, with a punitive order of attorney and client costs to mark this Court’s disapproval of the deliberate non-compliance with rules of court. The non-compliance with the rules of court was entirely egregious and uncalled for.

53. In the result the following order is made:

1. Condonation for the late noting and prosecution of the appeal is refused.

2. The appeal is struck from the roll with costs at attorney and client scale.

_____________________________

M H CHINHENGO

ACTING JUSTICE OF APPEAL

I agree:

____________________________

K E MOSITO

PRESIDENT OF THE COURT OF APPEAL

I agree:

______________________________

J VAN DER WESTHUZEIN

ACTING JUSTICE OF APPEAL

FOR THE APPELLANT: ADV C J LEPHUTHING

FOR THE 1^ST RESPONDENT: ADV L D MOLAPO

FOR THE 2^ND RESPONDENT: NO APPEARANCE