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CIV/T/629/85

IN THE HIGH COURT OP LESOTHO

In the Matter of :

CHRISTOPHER MOEKETSI TLELI Plaintiff

v

TEBOHO MOERANE 1st Defendant

JABU RAMOHANOE 2nd Defendant

JESSIE RAMAKATANE 3rd Defendant

JUDGEMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the 14th day of January, 1992.

In an action wherein Plaintiff sues Defendants for damages in the amount of M143,088 together with costs for suit the 3rd Defendant seeks an order setting aside the former's amended declaration to the summons on the basis that it is an irregular process and also excepts to the declaration on the ground that it lacks the averments which are necessary to sustain the action against him.

In the interest of clarity, it is, perhaps, convenient to mention at this juncture, that as amplified by further particulars, Plaintiff's declaration to the summons filed with

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the Registrar of the High Court on 23rd September, 1985 alleged, inter alia, that on 13th December, 1981 he was a fare paying passenger in vehicle A 5111 which was involved in a road accident along the Maseru/Mafeteng public road. At the material time the 3rd and/or the 2nd Defendants were employing the 1st Defendant as a driver of the vehicle which was reputedly owned by the 3rd Defendant although registered in the name of the 2nd Defendant. As a result of the accident which was caused by the 1st Defendant's negligent driving, Plaintiff incurred damages for which the Defendants were liable, jointly and severally, hence the institution of the action against them for relief as claimed in the summons.

On 7th March, 1986, the 3rd Defendant filed, with the Registrar of the High Court, and served upon the Plaintiff a notice of exception, in which he sought the dismissal of Plaintiff's summons with costs on the ground that the declarations to the summons did not disclose a cause of action against him. The matter was, on 7th May, 1987 argued before my brother Kheola, J. who found that, read with the further particulars, Plaintiff's declarations to the summons did disclose a cause of action against the 3rd Defendant. The exception was accordingly dismissed with costs.

On 13th May, 1987, the plea was filed with the Registrar of the High Court and duly served upon the Plaintiff.

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Counsels for both parties held a pre-trial conference of which minutes were filed on 3rd February, 1988. The matter was placed before me for hearing on 16th August, 1988.

Before the commencement of the hearing, the court was informed that by agreement of counsels for both parties, Plaintiff was abandoning his case against the 1st and the 2nd Defendants who allegedly had since passed away. The case was, therefore, to proceed only against the 3rd Defendant.

However, counsel for the 3rd Defendant pointed out that there was no indication that Plaintiff had claimed against the Insurance Company in accordance with the provisions of S.16 of the Motor Vehicle Insurance Company Order, 1972. In reply, counsel for the Plaintiff contended that the insurance company had refused to pay. When the court pointed out that the papers contained no allegation in support of the contention held by counsel for the Plaintiff, counsels for both parties agreed that the matter be postponed sine die. It was accordingly postponed.

It would appear that during the postponement, on 22nd August 1988, Plaintiff intimated intention to amend his declaration to the summons by the addition of para 11 which read as follows:

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"Plaintiff has duly lodged a claim with the insurance company, the Lesotho National Insurance Company, which has refused to pay, or repudiated liability on the grounds that the said vehicle A5111

was not licensed for the conveyance of passengers."

Although he was duly served with the notice to amend, the 3rd Defendant did not make any objection and on 28th September, 1988 Plaintiff filed, with the Registrar of the High Court, the amended declaration to the summons. Nothing was heard of this matter until 10th March, 1989, when 3rd Defendant filed, with the Registrar of the High Court and served upon the Plaintiff notice in terms of Rule 30 of the Rules of this court which notice reads, in part;

"Please take notice that the third Defendant will make application on the 16th March, 1989 in terms of Rule 30 of the Rules of this Honourable Court for the setting aside as an irregular proceeding of Plaintiff's amended declaration.

The Application is based on the ground that Plaintiff's amended Declaration contains an entirely new paragraph namely, paragraph 10 in respect of which notice of amendment in terms of Rule 33 was not given to the 3rd Defendant.

Take notice further that at the hearing of this Application 3rd Defendant will apply in terms of Rule 59 for the condonation of his failure to bring this application within the time stipulated by the Rules on the grounds that his attorney did not prior hereto notice this irregularity, having been misled by

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Plaintiff's notice of Amendment dated the 22nd August, 1988."

(My underlining)

It is significant to observe that the original declarations to the summons, which was as it has already been pointed out earlier filed on 23rd September, 1985, did include para 10. It reads as follows:

"2nd or 3rd Defendant are in law liable to compensate Plaintiff for damages incurred . through the negligence of 1st Defendant who was employed by either of them as a driver at the time of the accident,"

The amended declarations to the summons still include para. 10 which, however, reads:

"3rd Defendant is liable in law to compensate Plaintiff for damages incurred through the negligence of 1st Defendant who was employed by the 3rd Defendant as a driver at the time of the accident,"

Regard being had to the fact that both the original and the amended declarations to the summons contain para. 10 it must be accepted that the ground upon which the 3rd Defendant basis the notice in terms of rule 30 of the High Court Rules 1980 viz. that the amended declarations contain an entirely new paragraph namely, paragraph 10, cannot be substantiated. It cannot, therefore, be allowed to stand. The only difference in para 10 of the two declarations is, in my view,

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that whilst para 10 of the original declaration includes the 2nd Defendant, para 10 of the amended declaration leaves him out. It must, however, be remembered that before the commencement of the hearing on 16th August, 1988 counsels for both parties agreed that the case against the 1st and the 2nd defendants be abandoned so that Plaintiff could proceed only against the 3rd Defendant. That being so, the 3rd Defendant cannot be heard to complain when in para. 10 of his amended declaration Plaintiff makes no mention of either 2nd or 1st Defendants and proceeds only against him.

On 3rd April, 1989 and before the Application in terms of Rule 30 of the High Court Rules 1980 could be disposed of the 3rd Defendant again filed with the Registrar of the Court and served upon the Plaintiff notice of exception in which he stated that Plaintiff's amended declarations to the summons disclosed no cause of action against him in that;

1. It does not allege that in driving the said vehicle and at the time of the collision the First Defendant was acting in the course of and within the scope of his employment by the 3rd Defendant.

2. It does not categorically allege that First Defendant was, at the time of the collision, employed by the third Defendant. Wherefore third Defendant prays that Plaintiff's claim may be dismissed with costs."

This issue was, on 7th May, 1987 decided by Kheola, J.

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This issue was,on 7th May, 1987 decided by Kheola, J. I agree with his decision and see ,no point why the same issue should have been brought for second determination by this court.

From the forgoing, it is obvious that the view that I take is that both the application in terms of Rule 30 of the High Court Rules, 1980 and the notice of exception brought by the 3rd Defendant ought not to succeed. They are accordingly dismissed with costs.

B.K. MOLAI

14th February, 1992.

For Plaintiff : Mr. Kambule

For Defendant : Mr. Ngakane.