CIV/T/210/05
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the Matter Between:-
JOHN TSOLO MAKHELE PLAINTIFF
AND
THE COMMANDER, LDF st DEFENDANT
THE MINISTER OF DEFENCE 2nd DEFENDANT
THE ATTORNEY GENERAL 3rd DEFENDANT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 28 November 2005
The defendants/applicants herein moved an application for an order as follows;
Setting aside the Notice to File Plea served by Plaintiff on Defendants' attorneys on 24th August 2005 as being an irregular step or proceeding.
Compelling Plaintiff to furnish the Further Particulars requested by Defendants.
Requiring the Plaintiff to pay the costs of this application.
Further and/or alternative relief.
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On the 14th November 2005 when this matter was argued before me, both Counsel for Defendants/Applicants and Plaintiff/Respondent informed the Court that the first prayer concerning the Notice to File Plea had already been resolved and was not going to be pursued including the question of costs thereof.
The application came about after the Applicants herein had served Respondent with a request to furnish farther particulars 'in order to enable them to plead thereto.' Respondent refused to furnished the requested particulars his reasons being as per the Opposing affidavit of his Counsel. Mr Mohau, especially at paragraph 7 thereof that;
“ I admit that the requested particulars have been denied. I aver that this has been so because they are not strictly necessary
to enable the Defendants to plead nor (sic) to make a tender in settlement. I reiterate that Defendants do not seriously seek to
settle this matter. "
During argument. Mr Molyneaux for Applicants submitted that the further particulars are based on two (2) categories to wit. what is the basis of Plaintiff's claim and how the claim is made up i.e. what is the quantum. It
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was his contention that the requested particulars are strictly necessary to enable them to plead and that in any matter issues ought to be defined as early as possible in order to curtail the amount of time of the proceedings.
It was his further submission that since Plaintiffs claim is based on contract Applicants should know all the details such as what his salary was as a starting point so that they can admit what they can. To this end he referred the Court to Rules 20 (4), 21 (6) (a) and 25 (1) respectively.
In reaction, Mr Mohau for Respondent argued that whilst he agrees with the submissions made by Applicants on the law, pleadings do serve a particular purpose and that in his plea Defendant has to meet Plaintiffs averments paragraph by paragraph in terms of Rule 22 (3). His contention was that the request made by defendants was not made to serve the purpose as envisaged under the Rules of Court.
He added that pleadings are not intended to give evidence but to lay down issues for trial and that most of the questions in the request are fit for purposes of cross-examination and not for meeting the averments made in Plaintiffs declaration. He however conceded that out of the seventeen (17)
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paragraphs in the request for further particulars, about five (5) merited any serious attention and these are paragraphs 8, 9, 12.1, 14 and 16.
I now proceed to deal with the arguments made.
As a starting point, authorities abound on what is the function of pleadings and the general principles and rules governing same. In Isaacs' Beck's Theory and Principles of Pleading in Civil Actions P32 pleadings are said to serve three (3) functions. These are firstly to ensure that that both parties know the points of issue between them so that each knows the case (s) he has to meet. The second function is to assist the Court by defining the limits of the action with the third being to place the issues raised on record so that any judgment given therein may be a bar to any possible future litigation by the parties on the same issues.
At p 35 Isaacs (Supra) proceeds to state that pleadings 'should be framed with separate and distinct paragraphs and so far as possible each paragraph should be limited to a distinct averment. ' (my underlining)
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My understanding of the position as stated above is that in his declaration, all a plaintiff needs to do is concisely and distinctly
make averments each in its own separate paragraph in order to clarify and delimit the issues so as not to cause confusion. It is therefore my opinion that likewise, when drawing his plea defendant should respond to each separate averment as it has been pleaded in the summons.
In other words at the close of pleadings, each party must reasonably understand what the other's claim or defence is. What Courts are however warned not to do is to 'look at a pleading with a magnifying class.' It should be sufficient that what the one has averred can be replied to by the other.
It follows therefore that even for purposes of requesting particulars each request should deal with the specific averment as it appears in the plaintiffs declaration for the same reason, i.e. to avoid mixing issues and thereby causing confusion. The general principles and rules governing pleadings are equally applicable to both parties.
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For purposes of furnishing of further particulars and requests thereof, the test which has been laid down in the case of South African
Railways and Harbours v Deal Enterprises (Pty) Ltd 1975 (3) SA p 944 at paragraph E is that;
"A defendant seeking an order for further particulars to be supplied must satisfy the Court that without such particulars he will be embarrassed in pleading; he must show that the plaintiff has failed to deliver particulars "sufficiently" in terms of what is required, i.e. that particulars are lacking which are strictly necessary to enable him to plead or to tender.... " (my underlining)
Applying the said test herein and without necessarily quoting each and every paragraph of Respondent's declaration and the corresponding ones in the request for further particulars I will only make reference to some of them. This is in order to determine whether as the averments stand, Applicants are unable to plead so that Respondent should be ordered to furnish the further particulars.
At paragraph 1 of his declaration Respondent averred as follows;
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"The Plaintiff herein is John Tsolo Makhele, an adult Mosotho male of ha Mofoka, Maseru district. "
The request for further particulars to this paragraph reads as follows; "What is Plaintiff's date of birth? "
At paragraphs 4 of the declaration Respondent averred;
"At all the material times hereto, the Plaintiff has been a member of the Lesotho Defence Force, holding the rank of second
lieutenant. "
To this paragraph the request is framed as follows;
"When did Plaintiff join the Lesotho Defence Force?
When did Plaintiff obtain the rank of second Lieutenant?
What was the Plaintiff's salary, upon reaching the rank of second Lieutenant? "
Whereas at paragraph 5 of the declaration it is averred as follows;
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"On or about 9th September. 1997, Court Martial proceedings were commenced against the Plaintiff ultimately resulting in his
conviction by the said Court Martial. "
The request to this particular paragraph reads;
"With what offence was the Plaintiff charged? Of what offence was the Plaintiff convicted? What was the date of these convictions?
"
On the basis of the above quoted paragraphs much as I appreciate that some of the requested particulars might be necessary, they have in my opinion been made to the wrong averments which in this Court's opinion could have been pleaded to without such further particulars. It would have been different if they had been raised to relevant averments in the declaration.
For instance, in paragraph 1 as quoted above, Respondent gives his particulars of who his is and where he comes from. A request for his date of birth has nothing to do with applicants noting, admitting or denying the
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averment. In other words, the further particular requested was not strictly necessary for them to plead to it.
As I have already shown above, the request that each averment should be made in a separate and distinct paragraph is not applicable to plaintiff only but to defendant too because the main purpose is to as much as possible separate the issues. This means that even where defendant requests further particulars, it should be for purposes of pleading to the particular averment made.
With regard to the request in casu, I am not convinced that the particulars requested are strictly necessary to enable Applicants to plead to the averments made in the declaration. In my opinion, Applicants could have ably either denied or admitted the above quoted averments even in the absence of the requested further particulars or they should have at least put Respondent to proof thereof.
For instance, if someone avers that at all material times they have been in a particular employ, holding a certain position, surely that is enough for the other party to either admit or deny. Asking for details of when he was
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employed and on what salary scale he was is therefore not strictly necessary for purposes of admitting or denying same. Even for purposes of making a tender, the said requests should not have been made vis-a-vis those particular averments.
Although it was Mr Molyneaux's argument that Mr Mohau was adopting too strict an interpretation to the procedure, I do agree with the latter's interpretation especially in the light of the position adopted in the South African Railways and Harbours Case (Supra) p 947 which was stated as follows:
"Whereas formerly a plaintiff was obliged to furnish such particulars as were "reasonably necessary" to enable the defendant to plead or tender, the position is now that such particulars are only required to be furnished as are "strictly necessary" for either of the said purposes: the new Rule has restricted the scope of a request for particulars to "absolute essentials", (my emphasis)
Upon perusal of both the declaration and request in casu, the requests are made along similar lines as the ones I have already quoted above and in the
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interests of time I do not think it is necessary for me to deal with each and every paragraph separately. I believe the quoted paragraphs give a good general picture of whether Applicants could strictly speaking not ably plead to Respondent's claim. A large number of them are as Mr Mohau correctly submitted, not relevant to the elucidation of the factual averment made in the specific paragraphs.
1 therefore believe that this case can be distinguished from that of Tahan v Griffiths 1950 O.P.D 899 quoted to this Court wherein the basis of the plaintiffs claim was inter alia, that a car which she wanted to return to defendant and be given another for the reason that it was not roadworthy necessitated that she furnishes the defendant with the particulars.
Therein, plaintiff had made a bare averment that the vehicle was not roadworthy. The Court ordered her to furnish the particulars
requested i.e. in what respect the vehicle was not roadworthy.
In casu, as I have already mentioned, the requested particulars are not in my opinion, strictly necessary to enable Applicants to plead to Respondent's claim. Having said this, suffice it to say that since Respondents have
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conceded that they should have supplied further particulars to the five (5) paragraphs as already mentioned above and not just dismiss the whole request, it is not necessary for me to go through them with a fine toothcomb to consider whether they merit consideration but will accordingly grant the order insofar as they are concerned.
For these reasons, the application to compel is granted only in respect of paragraphs 8, 9, 12.1, 14 and 16 of Respondents' declaration.
COSTS
Applicants had also prayed for costs in this application. Although I have granted them the order in so far as the five (5) mentioned paragraphs are concerned, in the light of the fact that these form only a small portion of the request I am not going to award them the costs.
In the same vein since Respondents also conceded that they should have obliged the request with regard to the above stated paragraphs but did not, I will not award them costs either.
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For these reasons, there is no award as to costs.
N. MAJARA
JUDGE
For Applicants : Mr Molyneaux
For Respondent : Mr Mohau
