LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) NO. 36/2022
LCA/12/2020
CIV/DLC/MSU/0148/16
In the matter between:
SELLO MARTIN KHECHANE APPELLANT
AND
SEMONKONG URBAN COUNCIL 1ST RESPONDENT
ATTORNEY GENERAL 2ND RESPONDENT
CORAM: P.T DAMASEB AJA
M.H CHINHENGO AJA
J. VAN DER WESTHUIZEN AJA
HEARD: 07 APRIL 2025
DELIVERED: 2 MAY 2025
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FLYNOTE
Civil Procedure – Appeal – Reinstatement of appeal – Application defective – Rule 4(3) of the Court of Appeal Rules – Absence of fresh grounds of appeal consistent with certified points of law – Withdrawal of application without tendering costs – Whether costs should follow the withdrawal – Whether the first respondent is entitled to wasted costs
The applicant sought reinstatement of a third appeal previously struck from the roll for failure to comply with section 17 of the Court of Appeal Act 1978, which requires leave or a judge’s certificate on a question of law to prosecute such an appeal. Although a judge’s certificate had been belatedly obtained, the reinstatement application failed to set out fresh grounds of appeal based on the certified points of law, in violation of Rule 4(3) of the Rules of Court. The Court, having raised the deficiency mero motu, pointed out the procedural defect. Upon this, counsel for the applicant withdrew the appeal but offered no tender of costs. Having prepared for the merits, the first respondent applied for wasted costs.
In such circumstances, refusing to indemnify the first respondent would undermine the integrity of procedural compliance. The Court ordered the applicant bear the first respondent’s wasted costs occasioned by the abortive appeal proceedings.
Appeal withdrawn – Costs of the withdrawn appeal awarded against the applicant.
RULING ON COSTS
P.T. DAMASEB AJA
Introduction
[1]
The present application for reinstatement of an appeal comes in the wake of this Court's earlier order striking out the appeal because, being a third appeal, it had not complied with section 17 of the Court of Appeal Act 10 of 1978, which provides as follows:
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17. Right of appeal from decision of High Court in its civil appellate jurisdiction.
Any person aggrieved by any judgment of the High Court in its civil appellate jurisdiction may appeal to the Court with the leave of the Court or upon the certificate of the Judge who heard the appeal on any ground of appeal which involves a question of law but not on a question of fact.
[2]
On 14 March 2024, the applicant seeking reinstatement obtained from Banyane J a judge's certificate defining two points of law. This was followed by notice of motion in this court delivered on 3 March 2025 seeking an order that the ‘third appeal’ be reinstated.
[3]
The reinstatement application is not viable in its current form. It suffers from various deficiencies. After the judge's certificate was granted, the applicant should have complied with rule 4(3). There are no fresh grounds of appeal that address the points of law certified in the judge’s certificate.1
[4]
It is trite that an appeal is incompetent without grounds of appeal. Such grounds would have focused on the points of law certified by the judge.
[5]
The applicant apparently labored under the misconception that the grounds of appeal predating the judge's certificate were sufficient. Even assuming that he was correct, there are no such
1 Mohale v Mahao (C of A (CIV) 22 of 2004) [2005] LSCA 10 (20 April 2005) 101.
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grounds of appeal anyway. The only grounds of appeal appearing in the record are dated 13 July 2022 in the ‘Appeal Land Court’. Whether such a court exists is one thing, but this Court is not the Appeal Land Court.
[6]
When these defects were pointed out by the Court to the applicant’s counsel, he quite properly withdrew the appeal, but without tendering costs. That prompted Adv. Setlojane for the respondent to ask the Court to make an order for wasted costs. Advocate Kao for the applicant resisted such an order without advancing any basis.
[7]
It is common cause that the first respondent had not opposed the application for reinstatement. The opposition related to the merits of the appeal . The merits are yet to be heard, all things being equal. Although the collapse of the reinstatement application is not attributable to any objection taken by the first respondent, the fact remains that first respondent was ready to argue the appeal. The court raised the defects in the application for reinstatent mero motu as a threshold legal issue, as it was entitled to. Barring that, the respondent would have argued the appeal.
[8]
I see no reason in principle why the first respondent should not be indemnified for the wasted costs occasioned by the applicant’s non-compliance with the court rules. I would accordingly order that the applicant bears the first respondent's wasted costs of the withdrawn appeal.
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Order
[9]
The applicant, Sello Martin Khechane, is ordered to pay the first respondent’s wasted costs of the appeal.
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P.T DAMASEB
ACTING JUSTICE OF APPEAL
I agree
_______________________________________
M.H CHINHENGO
ACTING JUSTICE OF APPEAL
I agree
____________________________________
J. VAN DER WESTHUIZEN
ACTING JUSTICE OF APPEAL
FOR APPELLANTS: ADV E.M. KAO
FOR 1ST RESPONDENT: ADV R SETLOJANE