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,

1. 
   to notify the applicant's attorney in writing
   on or
   before the 17th April 1984 and

   
   

2. 
   within 14 days of such notification to file
   an
   answering affidavit etc . and

   
   

3. 
   if no notice of intention to oppose is given
   the
   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

-3-

and Mr. Sello argues

1. 
   he was technically right in asking for a
   default
   judgment because either Miriam,
   or Legal Aid, should have
   appeared on the
   7th to seek extension of time and

   
   

2. 
   that by reason of the Ugandan judgment
   Miriam has no
   chance of being successful
   in any defence that she might raise,
   and,
   (if I heard him correctly)

   
   

3. 
   that Miriam has already been ejected from
   the
   premises so whatever the Court decides
   is academic'

   
   

In my opinion rescission of this default judgment must
be granted

1. 
   The applicant was given seven days to take
   stock of
   her situation and a further fourteen
   days to file an affidavit
   It is true that
   the 7th of May was the return date stated in
   the
   Notice of Motion, but this presupposes
   that the times specified
   in the notice were
   in fact afforded They were not- There was
   no
   notice of set down for the 7th May and it
   is beyond me how it
   found its way on the roll.
   Legal Aid staff are enjoined by the
   Act to
   be satisfied that the applicant was in fact
   indigent
   before they act. We cannot put too
   much blame on a lay person for
   failing to
   appear in these circumstances The seven and
   fourteen
   days respectively must commence from
   the 30th April 1984 There
   was no genuine
   compliance with Rule 8(8) of the High Court
   Rules
   and the default judgment was thus
   surreptitiously obtained

   
   

2. 
   (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