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.
Cotran
on 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.

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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/

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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

1. 
   He failed to disclose to the Judge that he had issued
   summons
   claiming alternative relief in a certain sum of damages
   as an
   alternative to specific performance on the 28th October
   when
   he had every opportunity to do so

   
   

2. 
   The issue of the summons was fatally defective as
   against
   defendant No 2 (the intervener who was added as
   respondent
   6 in the application) because nothing was claimed
   against
   him

   
   

3. 
   That the action itself was redundant after the 28th
   October
   1985 and since it was not disclosed to the Judge it ought
   to
   have been withdrawn immediately on the ground of lis
   pendemr
   from which it follows that attorney's refusal to
   provide
   further 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..

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3. 
   The applicant is ordered to supply particulars to
   respondent
   as requested within two weeks of this Judgment
   becoming
   available to attorneys in type written form hopefully
   within
   2-3 days.

   
   

4. 
   That thereafter pleadings will be considered as closed
   in any
   of 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