This appeal arose from a rule nisi application that required the appellant to justify why an interdict should not be issued against him for the unlawful use of the respondent’s property.
The respondent instituted interdict proceedings when the appellant continued to use the disputed property after a default judgment that reinstated a previous judgment in his favor.
The court noted that interdict applications require proof of a clear right, an injury and the absence of any other satisfactory remedy.
The appellant submitted that the respondent had alternative remedies in contempt proceedings and a writ of execution. The court noted that the real issue was whether the alternative remedies would afford adequate protection from the continuing mischief. The court held that contempt proceedings are entirely unsatisfactory, where the injury has already started and is continuing. It was also held that a writ of execution was unsatisfactory for immovable property such as land.
The appellant claimed that service by postal service did not constitute proper service of summons as per rule 44 of Central and Local Courts (Practice and Procedure) Rules; and that this affected the validity of the default judgment. However, the court noted that the service was properly effected. It was also held that the validity of a default judgment was not affected by service of summons so, it was valid unless set aside lawfully.
Accordingly, the appeal was dismissed with costs.
CIV/A/18/86
IN THE HIGH COURT OF LESOTHO
In the Appeal of :
PHILLIMON NTSOLO Appellant
vs
'MUSO MOAHLOLI Respondent
JUDGMENT
Delivered by the honourable Mr. Justice J.L. Kheolo on the 31st day of August, 1987
This is an appeal against the judgment of the Resident Magistrate of Butha-Buthe dated the 15th November, 1985 in which she confirmed the interdict granted on the 29th June, 1984. The respondent (applicant in the lower court) had applied for an order in the following terms:
"(a) Rule Nisi be issued calling upon the respondent to show cause why:
He should not stop with immediate effectreaping the field which he ploughed and sowedafter the judgment was passed.
He should not be directed to allow the applicant to reap the fields for his own use.
He should not be directed to stop cutting the
trees from the forests which were in issue in the case mentioned above.
Pay Applicant the sum of R400.00 for damagessuffered by the Applicant for the huts destroyed,
Costs of the suit."
/The rule
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The rule was confirmed except prayer (e) which was discharged on the ground that the respondent had failed to prove it.
The appellant is now appealing to this Court on a number of grounds; but before considering the grounds of appeal I propose to give a short,summary of the facts of the case. The case which gave rise to the application before the magistrate's court was first heard at khukhune Local Court on the 13th September, 1983. The respondent claimed two houses, one yard, three fields, and three forests as his property and alleged that appellant was using the property unlawfully. At the end of the day the court gave judgment in favour of the respondent. Appellant appealed to Hololo Central Court. The President of Hololo Central Court remitted the case to Khukhune Local Court with the order that the appellant be given the opportunity to hand in a family document as an exhibit which would prove that the property which is the subject matter of this dispute was given to him by the family.
The case was set down for this purpose on the 7th February, 1984. The appellant was served by post and the letter was posted to him on the 7th December, 1983. The applicant failed to appear on the 7th February, 1984 but the respondent attended. On the 7th February, 1984 the Local Court president wrote a letter to the Central Court President in which he stated that he was reinstating his previous judgment because nothing new had come up. After this second judgment was announced and communicated to the Central Court President the respondent was continuing to use the property in question. It was as a result of the appellant's ignoring and defiance of the judgment that the respondent instituted the interdict proceedings in the magistrate's court.
The requirements for an interdict are;
/(a) A Clear
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A clear right on the part of the applicant.
An injury actually committed or reasonablyapprehended.
The absence of any other satisfactory remedyavailable to the applicant.
The first ground of appeal is that there were other satis-factory remedies available to the respondenti Mr. Matsau, counsel for the appellant submitted that respondent ought to have instituted contempt of court proceedings in the local court in terms of section 15 (a) of the Central and Local Courts Proclamation Nc.62 of 1938. In the alternative it is argued that the respondent ought to have executed the purported judgment in terms of Rule 45 of the Central and Local Courts (Practice and Procedure) Rules, Government Notice No.21 of 1961. I agree that there were other remedies available to the respondent, but the question is whether or not they were as satisfactory as an interdict, in other words whether the other remedies would afford any adequate protection from the mischief which was continuing. The answer must be in the negative. The institution of contempt of court proceedings is a very long process. The judgment creditor must go to the court and lodge his complaint and at the same time give the names of his witnesses. The public prosecutor will then issue the summons and the subpoenae after he has obtained a date from the Court President. By the time the trial is over the harm which the respondent wished to stop could have long been completed.
From what has been said above it is quite clear that contempt of court proceedings are entirely unsatisfactory where the injury has already started and is continuing. In the same way a writ of execution is also unsatisfactory whore immovable property such as land, houses
/and trees
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and trees is concerned. In the case of movable property execution is effective because the property is removed from the judgment debtor and handed over to the judgment creditor. With regard to immovable property execution does not mean much, the messenger of the court puts the judgment creditor in occupation and ejects the judgment debtor. If the judgment debtor re-occupies the land or cuts the trees again after he has been ejected, then contempt of court proceedings must be instituted.
the remedies referred to by Mr. Matsau are totally unsatis-factory and could not afford adequate protection from the mischief which was continuing. The suggestion that the respondent did not apply to the Resident Magistrate to exercise her revisionary powers under section 26 of the Central and Local Courts Proclation No.62 of 1938 is completely untenable. The respondent had a judgment in his favour and all what he wanted was to interdict the appellant from using property awarded to him (respondent) by a judgment of a court of law. If there were any need for the parties to apply to the Resident Magistrate for review, it is the appellant who had to do that inasmuch as the judgment of Khukhune Local Court was against him. However, instead of applying for review or apealing against that judgment the appellant decided to use the property in defiance of a judgment of a competent court.
Mr. Matsau submitted that because the rules of procedure of the Central and Local Courts do not provide for service by post, this Court must rule that there was no proper service of the summons and that the matter should be remitted to Khukhune Local Court. Rule 44 of Central and Local Courts (.Practice and Procedure) Rules reads as follows:
/(1) Subject
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"(1) Subject to the provisions of Sub-rules (2)
and (3), any plaintiff or defendant who, after proper notice of the time and date set down for the hearing of a case, fails without reasonable excuse to attend the Court to prosecute or defend his case may, at the discretion of the Court, have a default judgment with costs entered against him.
Any judgment entered under Sub-rule (1) shall notbecome absolute until the expiration of thirty daysfrom the date on which the default judgment wasgiven.
If within thirty days from the date on which defaultjudgment was given, the defaulting party, after havingserved notice upon the other party of his intention,appears before the Court and shows good and sufficientreason for his default, the Court may rescind suchjudgment and reopen the case and proceed to try the same."
In the instant case the appellant was given notice of the time and date set down for the hearing of the case. He failed to attend and has decided not to apply for rescission of the default judgment. It may be that it is correct that the rules do not provide for service by post but rules 44 refers to a notice and I am convinced that the appellant was given proper notice but ignored it. Even if there was no proper service that will not affect the default judgment. It will remain a valid judgment until such time that it shall be set aside in accordance with proper rules of procedure.
It was argued on behalf of the appellant that Annex "C" is not a judgment but a letter written by the Khukhune Local Court President to the Hololo Central Court President. This argument is untenable. In that letter he informed the Central Court President that he was reinstating his previous judgment because nothing new had come up. In other words the previous judgment which had been set aside by Hololo Central Court was restored and made valid again.
/For the
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For the reasons stated above the appeal was dismissed with costs.
J.L. KHEOLA
JUDGE.
1st October, 1987.
For the Appellant - Mr. Matsau For the Respondent - Mr. Maqutu
