HIGH COURT OF LESOTHO
BANK IN LIQUIDATION Applicant
POINTS IN LIMINE
by the Hon. Mrs Justice A. M. Hlajoane on 4th August, 2003.
Application was moved Ex Parte on urgent basis. It was for declaring
that the Hire Purchase agreement between the parties be
that Deputy Sheriff be authorised to take into his possession the
motor vehicle subject matter of the agreement.
The vehicle was to be
taken wherever it could be found and be retained pending the final
determination of this Application.
Application was opposed and the opposing affidavit was duly filed.
The Applicant also filed his replying affidavit. In his answering
papers, the Respondent raised some points in limine.
synopsis of this case is that, on the 18th April, 1997 the Lesotho
Bank (in liquidation) as Financial Institution entered
into a Hire
Purchase Agreement with the Respondent for motor vehicle described as
a Toyota Hi -Ace Super T Minibus, a 1995 Model.
The full purchase
price was the sum of Ml16,892.91. According to the Applicant a
deposit was paid, and the amount of M101,504.09
was to be paid over
35 months in instalments.
necessary formalities were carried out to complete the agreement.
Applicant alleges that the Respondent is in breach as he has
defaulted in the punctual payment of the instalments. It was a
condition of the agreement that ownership of the motor vehicle was
remain vested in the Lesotho Bank, until the purchase price had been
paid in full. Applicant therefore alleges he is entitled
the Agreement and claim the return of the motor vehicle.
Respondent on the other hand alleges that he has paid the purchase
price in full. I have shown earlier on that the Respondent
some points in limine, and they are the following,:-
- Lack of urgency
- Wrong Procedure and
- Dispute of fact
Respondent is saying that the Application is not urgent and that the
Applicant never treated it as such. He is saying this because,
Applicant has shown that he received payments up to March 1999, but
did not act once there was failure to honour the conditions
Hire Purchase Agreement. In answer to this, the Applicant is saying
that the Bank was closed and only came into existence
in January 2001
after appointment of liquidator.
Application was lodged in October, 2002 almost ten months after the
liquidation process. It was stated in the case of Phai Fothoane
President -Christian Democratic Party C of A (Civ) No:48 of 2000,
that delay in coming to Court is a bar to the Applicant moving
application ex parte on urgent basis. A litigant cannot wait for ten
months and later be heard to say the matter should be
urgent, yet he never treated it as such.
of Appeal has on numerous decisions repeatedly cautioned against the
abuse of the rules of procedure that permit granting
of urgent relief
especially without notice. Lieta v Lieta C of A (Civ) No.5 of 1987,
and Phai Fothoane above.
Respondent is saying that the Applicant is giving the Court an
impression that the Respondent in effect never serviced his loan.
Respondent is saying that the last instalment was paid during or
about May 2000 in full and final settlement of the said loan.
Respondent is saying, had the Court been availed with all the
material facts, it could not have granted a Rule Nisi against him.
This point will be decided together with the following point.
Procedure and Dispute of Fact
avers that the Application is riddled with serious dispute of fact
and should not have approached Court by way of an
precisely because the disputes should have been foreseen.
Applicant rightly pointed out the criteria decided in Room Hire
Company v Jeppe Street Mansions- I949(3)S.A. 1155 , for determining
whether or not a real dispute exists that,
- The dispute of fact must be foreseeable
- Must be real and respondent must allege an alternative version
- It must be a dispute of the main facts necessary to decide the
action, not just a peripheral issue
- Also whether or not the dispute of fact can be resolved on paper
and not by viva voce evidence.
showed in his answering papers that he has paid the amount in full.
He even indicated that the Bank debited his savings
Bank account book
with an amount of forty five thousand maloti on top of the deposit he
had already paid. This fact could neither
be admitted nor denied by
the Applicant. In Application Proceedings affidavits constitutes
proof and no further proof is necessary.
Chobokoane v Solicitor
General 1985 - 90 LLR 543. The Respondent disclosed all these because
he contents that he has paid in full,
but Applicant alleges he is
respondent therefore is alleging an alternative version of the main
factor necessary to decide the action. Proof of payment
considered as only a peripheral issue, but a main factor.
"C" of the Applicant's founding affidavit is a document
styled, customer statement, it was prepared, checked
by three different people whose designations have not been stated. It
is a computer print out. None of the people
who signed on the
document deposed to any affidavit, so that it remains unclear as to
where the information came from.
It is a
well established principle of our law that hearsay evidence being
inadmissible evidence cannot form part of an affidavit.
is hearsay evidence as the purpose for which it was attached was to
establish that it was true that payments have
not been made in full.
It would be something if the statement attached was merely for
purposes of showing that in fact payments
were made to the Bank. See
the case of Faker in 1979(1) LLR 214.
agree with the Applicant that where there is no real dispute of fact,
there would be no reason for incurring the delay and
in a trial action. Motion proceedings would generally be recognised
as permissible. But once a dispute is shown
to exist the Court has a
discretion as to the future course of the proceedings. The Court here
has a wide discretion as to the
future course of the proceedings. The
Court has a wide discretion to exercise.
the fact that the Bank was in 1999 closed whilst changing hands
during the liquidation process, but it eventually came into
in January 2001. The Court has ruled that there has been an
inordinate delay in bringing this Application to Court.
matter is not urgent and the Applicant himself has not treated it as
such. Even the dispute of fact that exists can only properly
determined by viva voce evidence. In the result I am not going to
dismiss the Application but direct that the matter be sent
in the ordinary way and that necessary pleadings be filed.
Applicant: Ms Makhera
Respondent: Mr Mathaba
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