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CIV\T\625\92

IN THE
HIGH COURT OF LESOTHO

In the
matter between

LESOTHO
BLOCK & PAVING MANUFACTURERS Plaintiff

and

W.L.
MOSIANE Defendant

JUDGMENT

Delivered
by the Honourable Chief Justice Mr Justice J.L. Kheola on the 6th day
of January. 1995

This is
an application for provisional sentence based on a cheque. It seems
that the plaintiff and the defendant had been having
some business
transactions for some time. The defendant bought certain goods from
the plaintiff on credit. On the 2nd December,
1991 a cheque ex facie
drawn by the defendant in the amount of M80,261.00 in favour of the
plaintiff, was presented for payment
at the Maseru Branch of the
Standard Chartered Bank. It was not paid but stamped "Refer to
Drawer", which in simple terms
means that there were no funds to
meet the cheque.

The
defendant acknowledges the signature on the cheque. He alleges that
he signed the cheque in blank but does not know who

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stamped
the name of the plaintiff on the cheque. He does not know who wrote
the amount in words and in figures. The defendant further
alleges
that because he signed the cheque in blank it cannot be said that he
drew the cheque.

The
problem which the defendant is facing is that he does not explain to
the Court how he parted with his cheque and how it reached
the hands
of the plaintiff. He does not allege that the cheque was lost nor
that it was stolen from him. He admits that he often
went to the
offices of the plaintiff in order to negotiate the manner in which he
could pay his debt to the plaintiff.

The
plaintiff admits that the rubber stamp used to insert its name on the
cheque is kept in its office for the convenience of the
clients of
the company who do not want to go to the trouble of writing out the
whole name of the company. It is a fairly long name.
It is also
admitted by the plaintiff that the amount in words and figured might
not have been written by the defendant. The plaintiff
alleges that
what is important is the fact that the defendant has acknowledged the
signature on the cheque as his own.The defendant
also acknowledges
his indebtedness to the plaintiff but not to the tune of the amount
claimed in the summons. He does not say to
what tune his indebtedness
to the plaintiff is. I am of the view that the onus

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is on the
defendant to prove on a balance of probabilities what his
indebtedness to the plaintiff is because the latter is in possession

of a cheque which was drawn in its favour but which was dishonoured.

On the
other hand the plaintiff's Annexures A1 - A13 (inclusive) are orders
which show what goods were sold and delivered to the
defendant. It is
a very long list. All such goods were received by the defendant. In
paragraph 5 of his replying affidavit the
defendant admits that
Annexure "A1 to A13" are orders by his company. He also
admits his status in the company and his
signature on those orders.
He however brings it to the attention of the Court that,

1. Other
   than Annexure "A" the rest of the annexrues bear neither a
   unit price nor the amount due for the total items allegedly
   ordered.

   
   

2. Annexure
   "A12" is dated the 28th March, 1992 i.e. three months
   after the cheque bad allegedly been drawn in favour of
   plaintiff.

   
   

It seems
to me that with regard to (a) above the objection has no substance
because the prices of goods can be easily

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established
from the price-list which every trader has. It does not mean that by
not inserting the prices on the orders the plaintiff
did not know
them. When the cheque was made out, or to be more exact, when the
words and the figures of the amount on the cheque
were inserted, the
plaintiff must have established the prices of the goods on Annexure
"A1 to A12" by looking at the
price-list. I do not think
that the defendant is of the view that the goods sold and delivered
to him should not be paid for because
their prices do not appear on
his orders.

Regarding
(b) above I am of the view that it was erroneously annexed because on
the 2nd December, 1991 when the cheque was drawn
Annexure "A12"
was not yet in existence; it was only made on the 28th March, 1992
i.e. about three months after the cheque
was made and dishonoured. It
is quite clear that the amount reflected on the cheque does not
include the amount for crushed stones
in Annexure "A12".

In
Randcon (Natal) (Pty) Ltd v. Florida Twin Estates (Pty) Ltd 1973 (4)
S.A. 181(D) at p.190 Van Heerden, J. said:

"The plaintiff has come to Court with, what this Court has found
to be, liquid documents which it asks for provisional sentence.

Defendant is contesting the claim cm the

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basis that in terms of a subsequent oral agreement an extension of
time was granted for the payment of the amounts due under these

documents and that the event to which payment was made conditional
was the completion of the building in question. This latter

agreement, defendant submits, destroys the liquidity of the
documents. It should be noted, however, that the indebtedness under

the certificates in question was never made subject to the happening
of an. event; it is the payment thereof in respect which an
extension
was granted. The legal position seems to be that where a person is
armed with a liquid document he is ordinarily entitled
to provisional
sentence thereon. If the defendant sets up a defence which goes
behind the liquid documents the onus is on him to
establish that in
that defence the probabilities in the principal case lie with him.
Inglestoae v. Pereira supra at p.71; Allied
Holdings Ltd v. Myreson,
1948 (2) S.A. 961 (W); Froman v. Robertson, 1971 (1) S.A. 115 (A.D.)
at p.120; Dickinson v.

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S.A. General Electric Co. (Pty) Ltd., 1973 (2) S.A. 620 (A.D.) at p.
630. The cases relied on by defendant in support of the above

submission are distinguishable for what destroyed the liquidity in
those cases was something in or omitted from the documents
themselves. Natal Building Society (Permanent) v. Bresler, 1960 (3)
S.A. 534 (C), is one. There the condition to complete the building

was contained in the liquid document (mortgage bond) itself and the
Court held that it was not such a simple condition or event
which
could merely be mentioned in the summons as having been complied with
or has happened; that accordingly the document was
not liquid within
the principle as laid down in Pepler v. Hirachberg, 1920 C.P.D. 438,
as confirmed in Union Share Agency &
Investment Ltd v. Spain,
1928 A.D.74."

In the
present case the probabilities do not seem to lie with the defendant.
He alleges that he is indebted to the plaintiff but
not to the tune
claimed in the summons. However he does not tell the Court his exact
indebtedness to the

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plaintiff.
I am of the view that the defendant has failed to show that the
probabilities are in hia favour in the principal action.

In the
result provisional sentence is granted as prayed.

J.L.
KHEOLA

CHIEF
JUSTICE

6th
January, 1995.

For
Plaintiff - Mr. Buys

For
Defendant - Mr Ntlhoki