C OF A
(CIV) NO.35 OF 1995
LESOTHO COURT OF APPEAL
matter between ;
SELLO & CO.
HELP AT :
events leading up to the present appeal may be listed in
chronological order as follows:
January 1993: The case between the appellant and the respondent
commenced in the magistrate's court.
November 1993 : judgment was granted against the Respondent, but was
set aside on appeal.
October 1994 : judgment was granted for a second time against the
1995 : respondent commenced proceedings to review the matter.
September 1995 : A writ of execution was served on the Respondent.
1995 : the respondent lodged an application in the High Court on
notice of motion, for stay of execution of the writ.
appellant gave notice of his intention to oppose this, the
application was withdrawn on 9 October 1995.
October 1995: Notice was given, but only to the Registrar, that
application would be made as a matter of urgency for a rule nisi
operate as an interim order, staying execution pending the review
proceedings before the High Court, with costs should the application
October 1995 : A rule nisi was issued, returnable on 30 October 1995.
October 1995 : The appellant, who had become aware of the application
which had not yet been served on him, gave notice of his
October 1995 : the application was set down by the appellant,
anticipating the return day of the rule.
November" 1995 : judgment was given in the matter. The
respondent's preliminary objections including one raised to the
Court's jurisdiction, were dismissed. On the jurisdiction issue the
Court a quo found in favour of the appellant, but granted a
execution subject to the conditions -
pending the result of the review, the respondent "pay security
for the appellant's costs to the Registrar" within
14 days of
the review proceedings should be prosecuted within 2 months, failing
which the appellant could proceed to execute without
were awarded in favour of the Appellant; who noted the present appeal
on 6 December 1995.
this judgment which is on appeal before us. In his heads of argument
the respondent took the preliminary point that the order
of the Court
a quo staying execution is interlocutory in both form and effect; so
that the appellant in terms of section 16 of
the Court of Appeal Act
No. 10 of 1978 required the leave of this Court before approaching it
16 provides that:
"(1) An appeal shall lie to the Court -
(a) from all final judgments of the High Court;
(b) by leave of the Court from an interlocutory order, an order made
ex parte or an order as
to costs only."
common cause that no such leave was obtained. Whereas Section 6 of
the High Court Act No.5 of 1978 was clearly enacted in
prevent the High Court from being swamped with litigation not
meriting its attention, different considerations underlie
provision of section 17 make clear. This reads:
"Any person aggrieved by any judgment of the High Court in its
civil appellate jurisdiction may appeal to the Court with the
of the Court or upon the certificate of the Judge who heard the
appeal on any ground of appeal which involves a question
of law but
not on a question of fact."
pattern seems obvious. A litigant may appeal once as of right against
a final judgment of the High Court as a Court of first
Similarly an appeal from the lower to the High Court is "free".
A second bite at the cherry is only permissible
should the Court of
Appeal - in the interests of the litigant so far victorious - regard
the matter as potentially meritorious.
Since interlocutory matters
automatically do not determine rights once and for all; orders
obtained ex parte are necessarily temporary
and orders as to costs
only are discretionary, there is no reason why an unsuccessful
litigant should be permitted to burden his
opposition with further
proceedings unless the Appeal Court for good reason grants leave for
him to do so.
sought to persuade us that the order granting a stay was final,
albeit efficacious only pending the outcome of the review.
A stay may
have a final effect in certain circumstances. It is unnecessary to go
into detail. The order against which this appeal
was brought is
was sought in the present matter. We were informed by Counsel for the
appellant that the interim order had presumably served
since the review proceedings had been determined. The appeal is
therefore against an order no longer efficacious -
hence clearly am
interlocutory one - and as such, academic.
matter is accordingly struck from the roll with costs.
at Maseru this 19th day of January, 1996.
JUDGE OF APPEAL
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