CIV/T/183/80
IN THE HIGH COURT OF LESOTHO

In the matter of :

LESOTHO AGRICULTURAL DEVELOPMENT BANK Plaintiff

v

SEKAKE M. KHABO Defendant

JUDGMENT

Delivered by the Hon. Chief Justice, Mr.Justice T.S. Cotran on the 7th day of October, 1980

MR. Harley on behalf of the plaintiff bank, served a summons on the defendant claiming -

1. Cancellation of two agreements, one in writing
   (produced) and one allegedly oral, in respect
   of a tractor and a plough sold by plaintiff to
   defendant on instalments. Ownership was not to
   pass until the last instalment had been paid.

2. Return of the goods sold,

3. Forfeiture of the instalment paid by the defendant,

4. Damages for breach of contract.

Declarations are not made on oath and any person can say anything. It seems to me extraordinary that the parties should have one agreement in writing and another, a more onerous one, embodying what looks like a penalty clause, orally, over the same goods at the same time! It is a broad general principle of law that where an agreement has been reduced into writing parol evidence is inadmissible to vary it. There are exceptions of course. However, the defendant chose not to defend the action and the question is whether the Court, skeptical as it certainly is about the nature of this oral agreement, if any, has any other alternative but to enter Judgment as prayed in default of appearance.

It seems to me that the Court has no option but this is

/the kind

-2-

the kind of Judgment that, I must warn Mr. Harley, may well be set aside or rescinded, if an application is made to this Court.

The parties made the magistrate's Court Maseru as their forum irrespective of the value of the claim. They probably did so to save on costs in the event of litigation,

I am not persuaded that I should award costs on the High Court scale. Costs to plaintiff on Magistrate Courts scale.

CHIEF JUSTICE
7th October, 1980

For Plaintiff : Mr. Harley
For Defendant : No Appearance