CIV/S/681/85 CIV/APN/197/85
IN THE HIGH COURT OF LESOTHO In the matter of
TAHLO CHURCHIL MOFOLO Plaintiff V
OVID KHERE MOFOLO 1st Defendant
IBRAHIM SAYANVALA 2nd Defendant
JUDGMENT
Delivered by the Hon Chief Justice Mr. Justice T S. Cotranon the 20th day of January, 1986
On the 22nd August 1985 the applicant was granted a Rule Nisi against five respondents, claiming a mandatory permanent interdict directing 1st respondent to transfer a portion of certain site to him, and restraining 2nd respondent from processing, under the Land Act, a lease, to any other person except the applicant The matter was opposed and in the process one Ebrahim Sayanvala intervened claiming that he has purchased from the 1st respondent the entire site which included the portion claimed by the applicant. The application was, in effect, one for specific performance, which is normally granted only by action It is CIV/APN/197/85.
After a number of extended return dates, during which there was a change of attorneys, the matter finally came for argument before Levy A.J. on 28th October, 1985. He ordered that
"The affidavits in this matter are to stand as pleadings in an action between the parties. The pleadings are to be regarded as closed and the parties are ordered to make decisions in terms of the rules. The intervening party is joined as 6th respondent.
-2-
The present rule and interim interdict are extended to the final
determination of these proceedings. The costs of today are reserved as are the costs of the application for leave to intervene. The rentals payable by 5th Respondent as from today are to be paid in trust to Webber Newdigate and Partners to be invested by them in a financial institution, the interest and capital to be held pending the outcome of these proceedings. The parties may agree to payments out from this fund."
On the 21st October 1985 i.e whilst the application was still undisposed of, the applicant elected to issue a civil summons against the first respondent and the intervening respondent in which he claimed, as an alternative to specific performance against first respondent, damages (against him only) in the sum of M150,000 and interest. The action was given a separate serial number although below the civil trial number applicant/plaintiff attorney inserted the application number. The summons however, was not served on the two respondents (now the two defendants) except on 31st October 1985 from which it can be conclusively inferred that counsel for applicant (and plaintiff) did not disclose to the respondents or their attorneys or to Levy A.J. that he had issued a summons claiming alternative relief. If he had, the learned Judge was not likely to have declared that the affidavits were to stand as pleadings in the action which pleadings will be regarded as closed
The action was lodged against the first respondent (now defendant No. I) and the 6th respondent (the intervener) now defendant No. 2. Defendant No. 2 however, and rightly so, excepted (ever before I saw the papers) because nothing was claimed against him by way of damages or otherwise. Defendant No 1 asked for further particulars relating to, inter alia, the quantum of damages claimed
/Applicant/
-3-
Applicant/plaintiff's attorney altitude was that Levy A.J. declared the pleadings in the application "closed" and that therefore he (attorney) would not supply the particulars. Mr. Maqutu, attorney for 1st defendant/ respondent moved this Court for leave to reopen the pleadings in the Civil application and prayed that should attorney for applicant/plaintiff resists the application that he (attorney) should bear the costs de bonis propriis if granted Applicant/plaintiff attorney fell for the bait and resisted the new application.
With respect to attorney for applicant/plaintiff
He failed to disclose to the Judge that he had issued summonsclaiming alternative relief in a certain sum of damages as analternative to specific performance on the 28th October whenhe had every opportunity to do so
The issue of the summons was fatally defective as againstdefendant No 2 (the intervener who was added as respondent6 in the application) because nothing was claimed againsthim
That the action itself was redundant after the 28th October1985 and since it was not disclosed to the Judge it ought tohave been withdrawn immediately on the ground of lis pendemrfrom which it follows that attorney's refusal to providefurther particulars was in the present circumstances perverse.
I make the following orders -
1.. Civil Action (CIV/T/681/85) is struck off as wholy incompetent and misconceived with costs to the two defendants therein to be paid by applicant/plaintiff attorney (Mr. Hlaoli) de bonis propriis.
2 Since in CIV/APL/197/85 the applicant claimed 'further and
alternative relief to specific performance in general terms he is now allowed to elaborate on that relief by attaching
his claim of damages in the sum required.
/3 The..
-4-
The applicant is ordered to supply particulars to respondentas requested within two weeks of this Judgment becomingavailable to attorneys in type written form hopefully within2-3 days.
That thereafter pleadings will be considered as closed in anyof the ways enumerated in Rule 31 (1) a-d and 31(2).
CHIEF JUSTICE 20th January, 1986
For Plaintiff Mr. Hiaoli
with a copy of the Judgment.
For Defendant Mr. Maqutu