CIV/APN/84/84 CIV/APN/104/84
IN THE HIGH COURT OF LESOTHO In the Application of
MIRIAM JUDITH NANTAGYA Applicant
v CHRISTOPHER HERBERT NANTAGYA Respondent
JUDGMENT
Delivered by the Hon. Chief Justice Mr. Justice T.S. Cotran on the 25th day of June 1984
This is an application by Miriam J. Nantagya (the applicant) to rescind a judgment entered by my brother Molai J on the 7th May 1984 in favour of Christopher H. Nantagya (the respondent) in default of her appearance.
The default judgment was granted to Christopher Herbert Nantagya upon his application for an order to eject Miriam Judith Nantagya, who was for all practical purposes his wife, from premises which they jointly occupied on Plot 186 Cenez Road Maseru West which were allocated to him by the Government of Lesotho (no doubt as a lawfully married man to Miriam) when he jointed the Ministry of Health as a dentist in 1980 Both parties are Ugandans.
This erstwhile Christopher had, in his application (No.84/1984) for the ejectment of Miriam from the joint premises, averred that he married a Russian lady called Irene in the U.S.S.R. in 1969 and that she divorced him in Uganda in 1983 by virtue of a judgment pronounced in the Magistrate's Court of that country on the 3rd August 1983.
/A copy
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A copy of this judgment was attached to his application. Christopher averred that he did in fact marry Miriam Judith Nantagya in February 1977 in Nairobi Kenya, but that he did so bigamously, and he adds that since he is now fed up with this Miriam, and since she is not in law his wife, he is entitled to have her kicked out of the premises
The application for ejectment was filed in the High Court on 10th April 1984. It called upon Miriam (who was then respondent) if she intended to oppose,
to notify the applicant's attorney in writingon or before the 17th April 1984 and
within 14 days of such notification to filean answering affidavit etc . and
if no notice of intention to oppose is giventhe Court will be moved on the 7th May.
The sheriff certifies that he served Miriam with the papers on the 30th April 1984 (we do not know in the morning or in the afternoon) and Miriam swears that the sheriff did show her some papers on that day but said that he had inadvertently left behind the copy that was supposed to be hers and did not bring it until the following day Tuesday the 1st of May. I have no reason to disbelieve Miriam. She did realise the implications on seeing the papers Wednesday 2nd May was a public holiday it being the King's birthday Miriam had only two days to take action, the 3rd and 4th May 1984, and she went to the Legal Aid Division of the Ministry of Justice to seek help. They took the papers from her.
It is common cause that neither Miriam nor a representative of Legal Aid appeared before the Judge on the 7th May 1984.
Christopher opposes the rescission of the default judgment
/and
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and Mr. Sello argues
he was technically right in asking for adefault judgment because either Miriam,or Legal Aid, should have appeared on the7th to seek extension of time and
that by reason of the Ugandan judgmentMiriam has no chance of being successfulin any defence that she might raise, and,(if I heard him correctly)
that Miriam has already been ejected fromthe premises so whatever the Court decidesis academic'
In my opinion rescission of this default judgment must be granted
The applicant was given seven days to takestock of her situation and a further fourteendays to file an affidavit It is true thatthe 7th of May was the return date stated inthe Notice of Motion, but this presupposesthat the times specified in the notice werein fact afforded They were not- There wasno notice of set down for the 7th May and itis beyond me how it found its way on the roll.Legal Aid staff are enjoined by the Act tobe satisfied that the applicant was in factindigent before they act. We cannot put toomuch blame on a lay person for failing toappear in these circumstances The seven andfourteen days respectively must commence fromthe 30th April 1984 There was no genuinecompliance with Rule 8(8) of the High CourtRules and the default judgment was thussurreptitiously obtained
(i) Ejectment of a person who is prima facie
in actual physical lawful occupation of premises is not and would not normally be granted on application
(ii) Ejectment will not necessarily be ordered even if the respondent proves that that marriage to Miriam was invalid Protection from eviction from the home of the parties can be given to a mistress as it can to a wife The respondent Christopher is not the landlord He is in no better position with regard to the premises than Miriam
(iii) Christopher
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(In) Christopher is a self confessed bigamist and has committed a crime under the laws of Uganda, Kenya and Lesotho A Court of law will be loathe to grant relief to this type of person and needs a lot of persuasion to do so
(iv) The copy of the judgment from Uganda is not certified It is not a decree nisi, much less a decree absolute That judgment is not therefore the end of the matter
(v) A judgment or a decree from any other country is not automatically binding on the Courts of Lesotho and can be challenged on several grounds.
(c) I see no warrant of execution granted to
Christopher to eject the applicant Miriam signed by the Registrar. I hope I have misheard Mr Sello. If Christopher has succeeded in ejecting Miriam she has an immediate remedy mandament van spolie without waiting a moment longer to be put in possession
The respondent will pay the costs on attorney and client scale so that applicant will also get her out of pocket expenses The applicant is given leave to defend, her opposing affidavit to be filed within twenty one days
CHIEF JUSTICE 25th June 1984
For Applicant Adv. Moorosi )
For Respondent Mr Sello ) with copy of Judgment