IN THE HIGH COURT OP LESOTHO In the Matter
CHRISTOPHER MOEKETSI TLELI Plaintiff
TEBOHO MOERANE 1st Defendant
RAMOHANOE 2nd Defendant
RAMAKATANE 3rd Defendant
Delivered by the Hon. Mr. Justice B.K. Molai on the
14th day of January, 1992.
In an action wherein Plaintiff sues Defendants for
damages in the amount of M143,088 together with costs for suit the
seeks an order setting aside the former's amended
declaration to the summons on the basis that it is an irregular
process and also
excepts to the declaration on the ground that it
lacks the averments which are necessary to sustain the action against
In the interest of clarity, it is, perhaps, convenient
to mention at this juncture, that as amplified by further
declaration to the summons filed with
the Registrar of the High Court on 23rd September, 1985
alleged, inter alia, that on 13th December, 1981 he was a fare
paying passenger in vehicle A 5111 which was involved in a road
accident along the Maseru/Mafeteng
public road. At the material time
the 3rd and/or the 2nd Defendants were employing the 1st Defendant as
a driver of the vehicle which
was reputedly owned by the 3rd
Defendant although registered in the name of the 2nd Defendant. As a
result of the accident which
was caused by the 1st Defendant's
negligent driving, Plaintiff incurred damages for which the
Defendants were liable, jointly and
severally, hence the institution
of the action against them for relief as claimed in the summons.
On 7th March, 1986, the 3rd Defendant filed, with the
Registrar of the High Court, and served upon the Plaintiff a notice
in which he sought the dismissal of Plaintiff's summons
with costs on the ground that the declarations to the summons did not
a cause of action against him. The matter was, on 7th May,
1987 argued before my brother Kheola, J. who found that, read with
further particulars, Plaintiff's declarations to the summons did
disclose a cause of action against the 3rd Defendant. The exception
was accordingly dismissed with costs.
On 13th May, 1987, the plea was filed with the Registrar
of the High Court and duly served upon the Plaintiff.
Counsels for both parties held a pre-trial conference of
which minutes were filed on 3rd February, 1988. The matter was placed
me for hearing on 16th August, 1988.
Before the commencement of the hearing, the court was
informed that by agreement of counsels for both parties, Plaintiff
his case against the 1st and the 2nd Defendants who
allegedly had since passed away. The case was, therefore, to proceed
the 3rd Defendant.
However, counsel for the 3rd Defendant pointed out that
there was no indication that Plaintiff had claimed against the
in accordance with the provisions of S.16 of theMotor Vehicle Insurance Company Order, 1972. In reply, counsel
for the Plaintiff contended that the insurance company had refused to
pay. When the court pointed out that the
papers contained no
allegation in support of the contention held by counsel for the
Plaintiff, counsels for both parties agreed that
the matter be
postponed sine die. It was accordingly postponed.
It would appear that during the postponement, on 22nd
August 1988, Plaintiff intimated intention to amend his declaration
to the summons
by the addition of para 11 which read as follows:
"Plaintiff has duly lodged a claim with the
insurance company, the Lesotho National Insurance Company, which has
refused to pay,
or repudiated liability on the grounds that the said
was not licensed for the conveyance of passengers."
Although he was duly served with the notice to amend,
the 3rd Defendant did not make any objection and on 28th September,
filed, with the Registrar of the High Court, the
amended declaration to the summons. Nothing was heard of this matter
March, 1989, when 3rd Defendant filed, with the Registrar
of the High Court and served upon the Plaintiff notice in terms of
30 of the Rules of this court which notice reads, in part;
"Please take notice that the third Defendant will
make application on the 16th March, 1989 in terms of Rule 30 of the
this Honourable Court for the setting aside as an irregular
proceeding of Plaintiff's amended declaration.
The Application is based on the ground that Plaintiff's
amended Declaration contains an entirely new paragraph namely,
paragraph 10 in respect of which notice of amendment in terms of
Rule 33 was not given to the 3rd Defendant.
Take notice further that at the hearing of this
Application 3rd Defendant will apply in terms of Rule 59 for the
condonation of his
failure to bring this application within the time
stipulated by the Rules on the grounds that his attorney did not
prior hereto notice
this irregularity, having been misled by
Plaintiff's notice of Amendment dated the 22nd August,
It is significant to observe that the original
declarations to the summons, which was as it has already been pointed
out earlier filed
on 23rd September, 1985, did include para 10. It
reads as follows:
"2nd or 3rd Defendant are in law liable to
compensate Plaintiff for damages incurred . through the negligence
of 1st Defendant
who was employed by either of them as a driver at
the time of the accident,"
The amended declarations to the summons still include
para. 10 which, however, reads:
"3rd Defendant is liable in law to compensate
Plaintiff for damages incurred through the negligence of 1st
Defendant who was
employed by the 3rd Defendant as a driver at the
time of the accident,"
Regard being had to the fact that both the original and
the amended declarations to the summons contain para. 10 it must be
that the ground upon which the 3rd Defendant basis the
notice in terms of rule 30 of the High Court Rules 1980 viz.
that the amended declarations contain an entirely new paragraph
namely, paragraph 10, cannot be substantiated. It cannot,
be allowed to stand. The only difference in para 10 of the two
declarations is, in my view,
that whilst para 10 of the original declaration includes
the 2nd Defendant, para 10 of the amended declaration leaves him out.
must, however, be remembered that before the commencement of the
hearing on 16th August, 1988 counsels for both parties agreed that
the case against the 1st and the 2nd defendants be abandoned so that
Plaintiff could proceed only against the 3rd Defendant. That
so, the 3rd Defendant cannot be heard to complain when in para. 10 of
his amended declaration Plaintiff makes no mention of
either 2nd or
1st Defendants and proceeds only against him.
On 3rd April, 1989 and before the Application in terms
of Rule 30 of the High Court Rules 1980 could be disposed of
the 3rd Defendant again filed with the Registrar of the Court and
served upon the Plaintiff notice of exception
in which he stated that
Plaintiff's amended declarations to the summons disclosed no cause of
action against him in that;
" 1. It does not allege that in driving the said
vehicle and at the time of the collision the First Defendant was
acting in the
course of and within the scope of his employment by the
2. It does not categorically allege that First Defendant
was, at the time of the collision, employed by the third Defendant.
third Defendant prays that Plaintiff's claim may be
dismissed with costs."
This issue was, on 7th May, 1987 decided by Kheola, J.
This issue was,on 7th May, 1987 decided by Kheola, J. I
agree with his decision and see ,no point why the same issue should
brought for second determination by this court.
From the forgoing, it is obvious that the view that I
take is that both the application in terms of Rule 30 of the High
1980 and the notice of exception brought by the 3rd
Defendant ought not to succeed. They are accordingly dismissed with
B.K. MOLAI 14th February, 1992.
For Plaintiff : Mr. Kambule For Defendant : Mr.
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