CIV/T/856/86

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

BARCLAYS
BANK PLC Plaintiff

v

MARCELLUS
BOFIHLA NKUEBE Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice Sir Peter Allen on the 1st day of September
19 88

The
plaintiff bank brought this action against the defendant for payment
of M18,524.81 being the balance due on a loan. .

It was
not disputed that the bank granted the defendant a loan of M30,000 on
13 September 19 84. This was by means of a verbal agreement
in which
the defendant was to repay the loan with interest on the outstanding
amount at the. bank rate on such accounts. It was
further agreed that
the defen­dant would make his repayments at the fixed amount of
Ml,250 every month.

The loan
was secured by three deeds of hypothecation; the first was a mortgage
for M25,000 on a plot of land at Mapeleng, Maseru,
registered number
16596 dated 3 January 1983. The second mortgage was also for M25,000
on the same plot of land, registration number
19632, dated 18
February 1986. The third mortgage was for M20,000 on the same plot of
land, registration number 19633, dated 18
February 1986. There was
also a fouth mortgage on another plot; of land for M6,000
registration number 15267 dated 1 February 1980.

2

The
Assistant Manager of Barclays Bank Maseru, Mr. Kimane ( PW1),
testified about the loan, the verbal agree­ment and the various

mortgages. He confirmed that at the time of issuing the summons in
this suit the amount due from the defendant was M.18,524.81.

Under the
provision of para. 11 of each of the mortgage agreements the manager
put in a certificate showing the defendant's indebtedness
up to 31
August 1988 (today) which indicates an amount of ,M.24,727.83, being
and including accrued interest on the loan since
issuing the summons.

The
evidence from the defendant's loan account was that he started with
the loan of M.30,000 on 14 September 1984 and that he paid
back the
agreed sum of M.1250 monthly up until the end of April 1986 when he
stopped all further repayments.

During
this period and afterwards up to date the bank has shown monthly
interest debits on the same account. These have varied with
the bank
interest.rrate on the monthly balance which also varied as repayment
deductions were made. This last point does not seem
to have been
clearly understood by the defendant, possibly because it Was not well
explained to him by the bank manager or the
defendant's attorney. The
defendant appeared to think that the monthly interest on the loan
should not vary and should not be reflected
in the account but, of
course, it had to be shown in order to reveal each month just how
much in full remained to be paid by the
defendant.

3

The
defendant also queried some additional debits to his account which
the manager explained were charges raised by the bank for
the
administration of the loan. Such charges were clearly properly raised
by the bank under the various deeds of hypothecation
wherein
provision is made for them at the beginninq of each deed.

It seems
to me that the defendant stopped repaying the loan and pleaded a
defence to this suit under a misapprehension, perhaps
due to his
failing to understand, the terms and conditions of the loan. This
should have been clearly explained to him by his legal
advisers
because in fact he has no acceptable legal defence to this claim and
he has succeeded only in wasting the Courtis time.

I am
satisfied that the plaintiff bank has proved the debt and that the
defendant owes the bank the total of M24,727.83, at 31 August
1988,
as claimed. Accordingly judgment in that amount is now entered in
favour of the plaintiff with interest at 18% from today's
date.

Furthermore,
I order that the four deeds of hypothecation (annexed) are now
executable to the extent of this judgment only.

With
regard to the costs, Mr Fick for the plaintiff has asked for costs on
the attorney and client scale on the ground that the
defence raised
was spurious and a waste of the Court's time. Mr. Matsau for the
defendant submitted that it was not unreasonable
for the defendant to
defend this action. I do not agree with him but, as I remarked
earlier, the defendant appears to have been
confused and to have

4

misunderstood
the way in which his loan was administered. I Think that both the
bank manager and the defendant's legal advisers
could have done more
to clarify the position to him. Consequently the plaintiff will
receive costs at the normal rate.

P. A. P.
J. ALLEN

JUDGE

1stSeptember,
1988.

Mr. Fick
for the plaintiff

Mr.
Matsau for the defendant