Civil practice – judge determining a matter on the merits when not addressed thereon – Judgment by consent – matter remitted to the court a quo for trial de novo before a different judge – Costs to be costs in the cause.
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CIV) No.25/2020
In the matter between:
TUMISANG RANTHAMANE APPELLANT
SELOGILE FAMILY TRUST 1ST RESPONDENT
MOOKHO SELOGILE BOHLOKO 2ND RESPONDENT
KABELO SELOGILE 3RD RESPONDENT
CORAM: DR KE MOSITO P
H M CHINHENGO AJA
DR J VAN DER WESTHUIZEN AJA
HEARD: 21 APRIL 2021
DELIVERED: 14 MAY 2021
DR K E MOSITO P
 This is an appeal against the judgment of the High Court (Mahase ACJ) handed down on 3 July 2020. The appeal concerned a dispute over some landed properties situate in Quthing. The dispute revolves around who owns the plot No.17684-161. The respondents brought an application before the High Court on 18 October 2019. The application sought two interdictory reliefs around plot No.17684-161.
 The application was heard on 20 November, 2019, 11 February, and 19 February 2020. Judgment was handed down on 03 July 2020. The High Court granted the application as prayed. The appellants was dissatisfied with that order and appealed to this Court. The appeal was set down for hearing on 13 April 2021.
Events before the Court of Appeal
 When the matter was to take off on 13 April 2021, the appellant’s Counsel indicated that he was ready to take off as he had filed all the necessary papers. The respondents’ Counsel informed the Court that he was not willing to oppose the appeal because, in his submission, there was substance in the appellant’s ground of appeal that, the court a quo erroneously decided the merits of the matter, while it had only been addressed on stay of execution and not the merits. The learned Counsel for the respondent agreed with the appellants’ Counsel that there was a mistrial in this matter in that, the learned judge had made determination on the merits while she had not been addressed thereon. Both learned Counsel urged the Court to remit the matter to the Court a quo to be heard de novo by a different judge.
 The Court then prepared a consent order to be made an order of this Court. The Counsel prepared the following order:
IT IS HEREBY ORDERED THAT
1. The Appeal is upheld in terms of ground 4 of the grounds of appeal.
2. The judgment of the Court a quo is set aside.
3. The matter is remitted to the Court a quo to be dealt with before different Judge.
4. Cost in the cause.
 This Court accepts that the learned judge a quo was wrong in determining the merits when she had not been addressed thereon by the parties. We also accept that the proceedings themselves would necessarily be heard by a different judge. Where a trial has been tainted by procedural unfairness, a court of appeal has a discretion to remit the matter for a hearing de novo. Each case must be decided on its own merits. In this case, the interests of justice require a fresh hearing regard being had to the magnitude of the mistrial.
 The following order is made:
(a) The appeal is upheld.
(b) The judgment of the court a quo is set aside.
DR KE MOSITO
PRESIDENT OF THE COURT OF APPEAL
H M CHINHENGO
ACTING JUSTICE OF APPEAL
____________________________ DR J VAN DER WESTHUIZEN
FOR APPELLANT: ADV E.M. KAO
FOR SECOND RESPONDENT: ADV T. POTSANE
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