C. of A.(Civ) No.22 of 1985
IN THE LESOTHO COURT OF APPEAL
In the Appeal of
WILLIAM LEPOTA Appellant
V
IVAN HYLAND Respondent
HELD AT MASERU
Coram
Schutz, P.
Odes, J.A.
Miller, J A.
JUDGMENT
The Respondent successfully applied on 26 November, 1985 for a final order of sequestration against the Appellant.
The ground upon which the sequestration order was sought and granted was that a nulla bona return had been made in respect of a writ for M3,018.56 issued against the Appellant. The writ cited Pandora Motors (Pty) Ltd, (Pandora) as the creditor in whose favour judgment for the amount mentioned had been granted on 15 July, 1983 The claim which led to the grant of such judgment was one of several claims which Pandora had against the Appellant and which were ceded by Pandora to the Respondent on 27 May, 1982 When granting the final order of sequestration the Court a quo (Levy A J.) observed that the circumstance that the Respondent had not, as cessionary, substituted his name for that of Pandora when causing a writ of execution to be issued,
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did not prevent him from relying on the nulla bona return made in respect of such writ. Mr Fick, who appeared for the Appellant in the appeal, rightly conceded that it was competent for a person to rely in an application for sequestration on a nulla bona return in respect of a writ issued by another, against the same debtor he contended, however, that the nulla bona return made in regard to the writ issued in the name of Pandora lacked efficacy and could not serve as an act of insolvency for the purposes of Sec 8 of the Insolvency Proclamation, 51 of 1957, because by virtue of the cessions made to the Respondent, not Pandora but only the cessionary, the Respondent, could execute against the property of the Appellant on the strength of the judgment in question
I do not find it necessary to decide whether this contention by the Appellant is correct because I am satisfied upon other grounds that the sequestration order was wrongly made The application for sequestration was founded solely upon an allegation that the
Appellant had committed an act of insolvency such as is described in Sec.8(b) It is clear that Section 8(b) contains two separate acts of insolvency, one, if the debtor fails "upon the demand of the officer whose duty it is to execute the judgment to satisfy it or to indicate to that officer disposable property sufficient to satisfy it" and, two, "if it appears from the return made by that officer that he has not found sufficient disposable property to satisfy the judgment." The return
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of service made by the Deputy Sheriff reads thus –
"The Defendant has failed to show me whether he has any assets to attach in respect of this debt "
This return does not use the very words of the description of any of the acts of insolvency contained in Sec.8(b) of the Proclamation. That circumstance in itself does not necessarily render it a bad or unacceptable return, provided that the words used would enable any reasonable recipient of the return to determine with confidence whether an identifiable act of insolvency had been committed
I do not think that the proviso I have mentioned is met by the wording of the return with which we are now concerned The first of the two acts of insolvency in Sec.3(b) required that the officer executing the writ demand of the debtor that he satisfy the judgment. The return in this case neither expressly, nor, in my judgment, by clear implication, reveals that the Deputy Sheriff made any such demand. And as to the second of the acts of insolvency described in Sec.8(b), there is nothing in the return to show that the Deputy Sheriff made diligent or any search or inquiry before noting that there was a failure to find any disposable assets. I conclude that the return fails to establish the commission of any act of insolvency in terms of Sec 8(b), which was the sole ground upon which the application for sequestration was sought and granted
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The appeal against the order of sequestration succeeds.
It is necessary to deal with one further aspect of this matter Shortly before the appeal was to be heard the Appellant lodged with this Court an application for leave to lead further evidence relative to the Deputy Sheriff's execution of the judgment and the return of service rendered by him It was alleged in the affidavit supporting the application that the proposed new evidence would be "credible and .. . practically conclusive" as to the proper service of the writ. It was also said that the proposed further evidence could not have been led at the hearing of the application in the Court a quo Annexed to the Appellant's affidavit was a draft affidavit which it had been thought the Deputy Sheriff would sign but which remained unsigned by him At the hearing of this appeal the application to lead further evidence was abandoned. Mr Beckley for the Respondent, asked us to award his client the costs occasioned by the application on the attorney and client scale In my judgment the circumstances warrant the making of such an order The application was totally unnecessary and in any event had no prospect of success, bearing in mind that there was no satisfactory explanation for not placing the "new" evidence before the Court a quo when the application for sequestration was heard Moreover, the further evidence which it was sought to lead was to be that of the Deputy Sheriff but what was filed with the application was an unsigned draft of the intended affidavit.
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The appeal is allowed and the sequestration order against the appellant is set aside with costs. The Respondent is to pay the costs of the appeal, but all costs occasioned by the application for leave to lead further evidence are to be paid by the Appellant on the attorney and client scale
Signed . . . ... ....
S MILLER
Judge of Appeal
I agree Signed .............
W.P. SCHUTZ
President of the Court of Appeal
I agree Signed . .... ...
M W. ODES
Delivered at Maseru on this 25th day of July, 1986.
For the Appellant Mr Fick
For the Respondent Mr. Beckley S C.
