IN THE HIGH COURT OF LESOTHO
In the appeal of-
MPHASI NKOPELA Appellant
NTSANE NKHABU Respondent
Delivered by the Hon. Mr. Justice Sir Peter Allen on the 25th day of February, 1988
This is a second appeal from the judgment of the Matsieng Central Court which was delivered on 14 December 1979 in favour of the respondent/plaintiff. The first appeal was to the Judicial Commissioner who confirmed the trial Court's decision on 20 April 1983 He then granted a certificate permitting the plaintiff to appeal to this Court. The Judicial Commissioner's certificate was dated 17 March 1986 which was three years after the delivery of judgment in that court The record does not show any explanation for such an unacceptable delay. Certificates should not be granted after long delays without very good reasons and these should be recorded.
The appellant/plaintiff sued the respondent/ defendant for repayment of a debt of M 400 which the < plaintiff alleged he lent to the defendant on 3 February 1978.
According to the plaintiff he was in the company of three men at the time at his home at Jordan ha Tsolo They were Parapara Mosese (PW1), Napo Mahloane (PW2) and Nkhese Motabo, who did not testify. The defendant (wrongly referred to throughout the trial court record as the respondent) came with a chief called Molapo Theko (PW3) and asked for the loan of M400 in order to buy a Scotch Cart. The plaintiff handed over the money and later refused to repay it.
The actual loan was confirmed by Mosese (PW1) and Mahloane (PW2). The plaintiff also called the chief, Morena Molapo Theko (PW3), who testified that the defendant asked him to accompany him to the plaintiff's home in order to borrow the money. Molapo said that he went with the defendant merely as a friend and not in his capacity as a chief or to witness the loan.
Neither the plaintiff nor his witnesses mentioned what time of day the incident took place, nor were they asked Such details are important and they should always be obtained by the court and recorded. The chief Molapo was the only person who mentioned it and he said that they went to the plaintiff's home "in the morning hours
The defendants case was that this never happened at all. He testified that it was a false claim and that he had already purchased a Scotch Cart in 1977, which statement he supported with rather doubtful looking receipts.
The defence was what in criminal cases is referred to as an alibi. He claimed that he was somewhere else
at the time of the alleged loan. According to him he was "attending a case" at the Principal Chief's Administrative office at Thaba Bosiu. He did not reveal what the case was about nor who were the parties, nor whether he was a party, a witness or just a spectator Nor did he produce any document calling him to attend the case or indeed anything which would support his contention, such as by calling the chief or some official from the chief's office. It was very unsatisfactory testimony.
Ordinary people do not usually know what sort of evidence to produce in court and it is understandable that they may omit to mention details that may be known to them alone. The cout's duty is to try to discover the truth of the matter and, in the absence of legal representatives in court, questions of this sort should have been put to the witnesses for this purpose by the court
The defendant said he was returning from Thaba Bosiu on 3 February 1978. Again there was no mention of the time of day and no questions were asked about it. His witnesses , Khotso Bolepo (DW1), Khasole Sekese (DW2), Maretmtsi Lecheko (DW3) and Mokete Motete (DW4) testified that the case was heard on 2 February and that they all returned home on 3 February These witnesses said that the case was a dispute over a field between the defendant and one Khotso Molapo. According to them they slept on the way and arrived home on 4 February. The defendant did not mention this.
The defence witnesses also pointed out that the defendant would not have borrowed money from the plaintiff
as they were not on good terms, resulting from an earlier. quarrel over the seizure of the plaintiff's cattle These witnesses each added that they were not present when any loan was made.
Thus the case depended largely on the credibility of the witnesses. The plaintiff and three witnesses said they were present when the defendant borrowed the money, whereas the defendant and his three witnesses said they were all at some quite different place on that day
In criminal cases an accused person is not required' by law to prove his defence of an alibi However in civil suits the position is rather different The court has to decide whom to believe on the balance of probabilities, that is, which side has persuaded the court that its version of events was more likely to have happened and so it is the more credible.
Thus one would expect the defendant to have produced some sort of official evidence that he attended the chief's office on that day such as by producing an official document or a person from that office
The parties each merely brought their friends to court to support them, evidently trying to outnumber the other side's total of witnesses But it is not the quantity of witnesses that counts. It is their quality of truthfulness and credibility that matters in these cases.
Two cash receipts concerning a scotch cart were put in as exhibits, but I do not consider that the trial
court should have taken so much notice of them. One had quite clearly been altered However, the point of the case was not whether or not the money was actually used to purchase a scotch cart, but simply whether 01 not there was a loan of cash at all. Thus the receipts were in the nature of a red-herring or, at least, irrelevant to the central issue in the case, which the trial court ought to have concentrated upon
On questions of the credibility of witnesses the trial court is clearly in the best position to decide, since the witnesses have appeared in that court which could watch their demeanour while they were testi-fying and so make an assessment with regard to their credibility. An appeal court does not have the same advantage and it sees their testimony in writing only This may look more, or less, convincing than when it was actually spoken by the witness in court. Thus decisions concerning the credibility of witnesses are usually left to the trial court and an appeal court would be most reluctant to disregard or overrule the trial court's decisions in such matters.
The trial court, however, did not make clear findings as to the credibility of the various individual witnesses. Instead its decision was based mostly on the failure of the defendant to call the chief or produce a document confirming his presence in the chief's office on 3 February 1978. I think this was a reasonable requirement
The Judicial Commissioner was clearly reluctant to interfere with such a decision since he, too, had not seen or heard the witnesses. He found that the trial court was not wrong to come to the conclusion that
it did and he dismissed the first appeal.
Mr. Maqutu for the appellant was left rather in the position of having to make bricks without straw. He referred to Elias Kose v R C of A (CRI) No 1 of 1976 (unreported) in which Ogilvie Thompson J A. said
"In the absence of a misdirection, the ambit of an appeal court's interference with the decision of a trial court upon a factual issue depending upon credibility is restricted within reasonably clearly defined and well known limits - faulty reasoning, failure to accord due weight to a particular feature, and the like."
Mr Maqutu criticised the plaintiff's witnesses as being professional witnesses who were probably not present at the plaintiff's home by chance, as one of them had testified on the plaintiff's behalf in an earlier case. He added that the chief's testimony was suspect because he insisted that he was present only as a friend of the defendant (not the plaintiff) and not in his capacity as a chief.
But a witness is a person who is there at the time. It does not matter whether he is a friend, a neighbour, a relation, a chief, a complete stranger, or someone who has previously been a witness in another case. What matters is whether he really was there, and whether his version of what happened can be believed
Mr. Maqutu agreed that the trial court's decision on credibility should generally prevail but he suggested that the appeal court might have come to a different
conclusion on the evidence. That is quite possible, of course, but it would not be proper for this Court to impose its view of the credibility of the witnesses without very good reasons.
Apart from the trial court being led astray on the largely irrelevant matter of the receipts, I cannot find that its decision to believe the plaintiff's case rather than the defendant's was the result of faulty reasoning or of a serious misdirection.
Both lower courts came to the same conclusion on the facts and this appeal Court should be reluctant to interfere with it. In the circumstances I do not find sufficient reason to do so.
Accordingly this appeal is dismissed with costs and the judgments in both lower counts are confirmed
P. A. P. J. ALLEN
25 February 1988
Mr Maqutu for appellant
Mr. Matsau for respondent
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