IN THE HIGH COURT OF LESOTHO
In the Application of :
LIBENYANE POSHOLI Applicant
MOSHOESHOE POSHOLI & 2 ORS RespondentsJ U D G M E N T
Delivered by the Hon. Mr. Justice M.L. Lehohla on the 11th day of November, 1991
On May 1st, 1990 the applicant filed an application on notice against the respondents for an Order :
1. reviewing and setting aside proceedings in
CC 86/89 from the Teyateyaneng Magistrate's
Court, particularly the decision by the 2nd
respondent dated 24-11-1989;
directing the first respondent to pay the costs
in any event but so should the 2nd and 3rd
respondents in the event of their opposition to
granting the applicant any further and/or
The 2nd and 3rd respondents are the TY Magistrate and the Attorney-General respectively.
The applicant who avers that he is an illiterate
states 1n an affidavit before this Court that CC 86/89 was a case presided over by the 2nd respondent. In that matter the applicant was respondent and the 1st respondent
The applicant further avers that in November 1983 he received a Notice of Motion together with affidavits in the civil matter marked CC 8G/89. In that matter the 1st respondent was applying for a review of proceedings which
had emanated from the Local Court and had reached the Central Court stage.
The grounds for review by the 1st respondent were that the proceedings up to that stage were irregular in that it had been clear to the presiding officer that the 1st respondent had no interest 1n the matter i.e. a disputed field, he being a mere agent of Robert Posholi who had testified that he had the right to plough the field. A further ground of review was that Robert Posholi should have been joined. This in a nut-shell was a matter presented before the Magistrate's Court for review.
The present applicant further avers in an affidavit before this Court that having received the Notice of Motion and on being served with papers marked "AA" he was told by the Court Messenger that he was required to appear in the Magistrate's Court on 23rd November, 1989.
The applicant duly appeared before that Court on that day having felt that the Messenger's information to him warranted the attention that the applicant gave the matter. On the day in question the applicant was informed
that as the 1st respondent's attorney was engaged elsewhere the matter would not proceed but should rather do so the following day i.e. 24th November, 1989.
On this latter day the applicant reported at Court
as did the 1st respondent's attorney. The applicant avers
at para 10 as follows "My own lawyer however did not turn
The applicant avers that when the matter resumed on that day i.e. 24th November, 1989 he indicated to the Court that he had engaged a lawyer who had not yet arrived. He further avers that the Court decided nevertheless to proceed regardless of his lawyer's absence. Thus he complains that he was not afforded an opportunity to even contact his lawyer,
The applicant avers that the 2nd respondent informed him of his decision that the matter brought on review, before him was to start de novo at the Local Court. The applicant approached counsel who found it inconceivable that a matter purportedly set down for hearing ex-parte could be followed by a final order on the same day of its being heard without any return date being fixed in order to enable the opposing party if he so wishes, to prepare and file his defence.
The applicant further contends that the reviewing Court below granted the application in error as the grounds advanced by the 1st respondent did not warrant an application for review; but that the issue should rather have been resolved by way of appeal to the Judicial Commissioner's Court as a matter of course.
It is further averred on oath by the applicant that
the Magistrate's Court failed to address its mind to the fact that the applicant had been served with a Notice of Application (Annexure "AA") indicating that the first respondent was going to apply for a Rule Nisi on 23rd November, 1989. Had the Court not so failed, it was contended, then it would not have confirmed the rule as it did. Further that the applicant says he was misled because "AA" did not indicate that 23rd November, 1989 was not just the day when the interim order was to be issued but rather the final one though on the face of it it did not support any presupposition that an interim order had been granted on 23rd June, 1989; more especially that no Court Order accompanied Annexure "AA" at the time the latter was served on the applicant. The applicant avers that he was served with the final order on 5th January 1990 written 1989. The Order is attached to the papers and is marked "BB". Significantly this last averment by the applicant has not been gainsaid. I have perused the Subordinate Court's record and have discovered that the original Court Order was issued on 29th November 1989 and at the back bears the date 05-01-1990 below which is written and signed the names Libenyane Posholi. In fact two copies of the messenger's returns relating to service of Notice of Application for Review show that such service was effected on 2nd November 1989. None of them refers to the Court Order. The one that refers to the Court Order clearly shows,that it was served on 5th January, 1990,
In its tanas this Court Order is final. The proper procedure would have required it not only to be interim but that it be served together with the originating papers. The
originating papers were misleading and making it appear that the ex-parte application was only going to be moved-on
23rd November 1989 for the first time whereas the calender of the case indicates on file cover that the application was moved for the first time on 23-6-89 and postponed several times thereafter.
It does not seem to me that in the face of the fact that originating papers reflected the hand written 23-11-89 as opposed to the struck out 23-6-89 the applicant and his counsel could be faulted for gaining the impression from the Notice of Application that the ex-parte application was due for motion on 23-11-89 in which case an interim order setting out the return dates would follow afterwards.
The two paged incomplete record has not covered the Subordinate Court's minutes. None of the parties is to blame for that. It was the Subordinate Court's business to ensure that a complete record is furnished as ordered by this Court on 7- 3- 91. This Court cannot allow the effect of the incomplete record to prejudice the applicant who relied on it in part.
There are a number of disturbing features in the manner proceedings were conducted in the Magistrate's Court. It seems that scant attention was given to the fact that the applicant though in attendance was a layman who nonetheless had indicated to the Court that he had engaged a lawyer. See page 6 para 11 read with page 24 para 8. I don't think it makes good sense that even though a layman tells the Court that he has engaged a lawyer the Court should adopt the attitude that it does not believe him without giving that layman an opportunity to prove his statement and instead grant and confirm the so called interim order which never, as it should have, accompanied the originating papers for service
on the party in question. Another disturbing feature 1s the fact that a major alteration of the date of hearing was effected without any initialling by any officer who effected it. It is also disturbing that service of Court process which should have been effected all at once was instead done piecemeal. It was inexusably wrong that a final order should have been granted without there having been service of an interim order on the party involved. The fact that the Court's minutes may reflect that he was told in broad terms the contents of the interim order is no substitute for effecting service of the interim order on the party concerned. Let alone that no indication exists to show that the applicant was told in broad terms the contents of any interim order or rule nisi.
The applicant is adequately supported in his. averments by Mr. Mohau in his affidavit as to the misleading impression created by the 1st respondent's papers before the 2nd respondent's Court and the consequent wrong reaction that this engendered in the applicant and his counsel.
The words of this Court in CIV/APN/198/91
Swissbourgh Diamond Mines & Another vs Lesotho Highlands Development Authority (unreported) at page 24 of my manuscript Judgment may prove productive; to wit :
"My difficulty as to this entire problem is
whether a proceeding which was initiated and
proceeded with ex-parte can in the process
convert into process moved on notice ".
With regard to the instant matter it seems to me that one of the major difficulties presented by the procedure adopted would have been averted if the Magistrate's minute dated 23-6-89 when the rule Nisi was granted and the return
date fixed as 28-9-89, had been expressed in the proper form provided and prescribed in the rules and served on the applicant alone with the originating papers, But this was not done.
Finally it does not help to make merit of the fact that the review was properly granted because the Court concerned was of the view that the wrong party was being sued. That same party was entitled to apply to the Local Court to have the proper party jointly sued. As it is the Magistrate rightly discovered that the question of the wrong party being sued was raised for the first time before him. The right approach before the Magistrate though should have been to hold it against the applicant before his Court that wrong suit was not raised at the proper stage. I doubt therefore whether mere refusal to grant the successful party before him costs was enough.
Mr. Hlaoli for the 1st respondent sought to cast doubt on the validity or perhaps even the accuracy and provenance of the two paged record in which on more than two occasions he is recorded as showing that should the applicant oppose the application and the other party win the applicant would have had to pay the costs. Although this is a normal statement when making an application it would seem to me that for a layman who had briefed a lawyer who failed to turn up when such a proposition was made it could very well have discouraged him from raising any opposition if such was so closely linked with payment of costs. But as I have said earlier it was irregular to issue a final order without an interim one having been served. The main point in referring to the attitude adopted by Mr. Hlaoli
alluded to earlier is that the original manuscript of which the two paged record is a copy is contained in the very file obtained from the Magistrate's Court - the very file in which the minuted record which it was, though not in so many words, suggested should be preferred to the two paged typed record! Indeed Mr. Hlaoli had registered his objection to consideration of the latter or anything that was inconsistent with the minuted record.
It would seem therefore that while it was understandable that Mr. Hlaoli should query the accuracy of statements contained in a record which he considered suspicious, it cannot equally hold that the original manuscript forming part of the record he urged the Court repeatedly to have regard to, should be disregarded.
In the original manuscript the same words appearing in the two paged typed record ore reflected to the effect that
"If the Court gives him chance to oppose and if we succeed he will have to pay the costs".
Furthermore it is recorded in that original manuscript that
"Even though 1st respondent is present in person but that does not show that he opposes this application because he has not made any Notice to Oppose"
As I have already indicated it would have been premature for the applicant to oppose the application on 23rd or 24th November, 1989 in the absence of on interim order or rule nisi which should have spelt out more forcefully what he should have opposed if he was so intended.
In the result the application for review by this Court on grounds set out by the applicant is granted with costs.
11th November, 1991
For Applicant : Mr. Mohau
For 1st Respondent : Mr. Hlaoli
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