CIV/A/6/85

IN THE
HIGH COURT OF LESOTHO

In the
appeal of :

MAKHAOLA
MONARE Appellant

V

MANAMOLELA
PHANGOA Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Chief Justice Mr. Justice T.S. Cotran on the 15th day of
November 1985

On the
17th October 1985 I allowed this appeal which was from an Order of a
magistrate with second class powers sitting in the Subordinate
Court
of the district of Mohale's Hoek refusing to rescind a Judgment in
favour of the plaintiff who is the respondent before me,
granted,
whether by consent or in default is not certain, against two
defendants one of whom is the appellant before me, in the
sum of M2
000 for personal injuries consequent upon an assault which occurred
in 1982. I said reasons will be filed later and these
now follow.

The
summons commencing the action date stamped the 26th September 1983,
accompanied by the particulars of claim, were served upon
the
appellant some time in October 1983. I have marked a copy of this
document A in my papers. It will be seen that the date of
service is
not so clear probably the 24th October. On the back of this form
there are two sections one numbered "2" and
one numbered
"3". The defendant should sign either 2 consenting to
Judgment, or 3 which is notice of intention to oppose.
On the face of
the document the appellant

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"consented"
to Judgment.

On or
about the 20th December 1983 advocate for the plaintiff/ respondent
filed a request for a default Judgment. I have marked
this document B
in my papers and it is stated therein that:

1. the
   defendants have been duly served

   
   

2. the
   time for appearance by the defendants has expired, and

   
   

3. the
   defendants have not entered appearance.

   
   

It is
common cause that the Clerk of Court, not a judicial officer, entered
a Judgment in default.

Nothing
happened until the 26th May 1984 when advocate for the
plaintiff/respondent wrote to the Clerk of Court saying that a
default
Judgment was entered "as long ago as 20th December 1983
but there has been no execution yet". Advocate asked the Clerk

of Court to execute. I have marked this document C. The latter
obliged and signed an Execution Warrant. Some time in June 1984
seven
goats belonging to the appellant were attached.

The
appellant went to see an advocate, Mr. Mda, who perused the papers on
the file. Mr. Mda filed an application that the "Judgment"

upon which the warrant of execution was issued be rescinded. I have
marked this as document D. An affidavit from the
appellant/applicant/defendant
accompanied the application. He
averred, inter alia, that on the 24th October 1983 the messenger of
the Court showed him a piece
of paper (that would be document A) and
asked him whether there was a criminal case lodged by the respondent
against him and another
person . He said that that was correct and
that he had been convicted. The appellant adds that the Court
messenger asked him to
sign on a piece of paper which he did. The
appellant further avers that it was not explained to him that he was
to sign a consent
to Judgment but to answer a summons ordering him to
appear within three days when

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his home
was 20 miles away. He avers that his failure to appear was neither
deliberate or wilful and that he had a bona fide defence
to the claim
either totally or at the very least as to quantum because when he
assaulted the respondent he was reacting to the
latter's violent and
provocative action. The application for rescission was resisted on
the grounds which appear in a document
I marked D. These were that
the Judgment was one by "consent", that
appellant/applicant/defendant made no appearance
within three days
and he made no appearance even when he was served with the notice
"requesting default" Judgment. The
messenger of Court swore
an affidavit saying the appellant/ applicant/defendant perfectly
understood what he was signing and that
he had served the
appellant's/applicant's/defendant's "child" with the
request for a default Judgment on the 19th January
1984.

The
application for rescission came before Mrs. Sekhesa. Advocate for
applicant/defendant argued that the Clerk of Court has no

jurisdiction to enter a default Judgment. The magistrate agreed with
this submission but she was of the opinion that "without
going
into the merits of the case" the applicant/ defendant consented
to Judgment, the question of jurisdiction fails and
"having read
the papers and affidavits the defendant/ applicant has no bona fide
defence to this action". The applica­tion
was dismissed.

The
applicant/defendant appealed.

In my
opinion the Judgment against the appellant cannot be sustained and
must be rescinded for the following reasons:-

1. Whether
   the appellant/applicant/defendant understood what he was signing, or
   the implications thereof, is strenuously contested.
   The matter
   cannot be decided on the papers and viva voce evidence should have

   
   

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been heard by the magistrate unless the messenger's affidavit was to
be believed in toto. I rather fear that the affidavit of the

messenger may not be totally true. The appellant/applicant/defendant
was a layman and a mistake was possible. The very text of
the Order
in question (Order X rules 1 - 8 of the Subordinate Court Rules -
Vol. I Laws of Lesotho p.614 et seq.) warns the Court
against
acceptance at face value of what a messenger says. The messenger in
any event is suspect on his averment that he served
the notice by
respondent for a "default Judgment" on the
Applicant's/defendant's child on 19th January 1984 because
it does
not agree with what respondent says. If the applicant/ defendant
genuinely consented to Judgment there was no need to obtain
a default
Judgment. There is no evidence that the Subordinate Court registers
were endorsed that a Judgment was entered by consent.

2. The
   claim was one for unliquidated damages. It is extremely unlikely
   that the appellant/applicant/ defendant would consent to
   pay the
   amount of the claim: What the appellant/applicant/defendant says
   happened is more likely than what the messenger of the
   Court says
   happened, viz, that he admitted a criminal conviction, but not
   liability, or total liability, to pay M2 000.

   
   

3. In
   the High Court, before a claim for unliquidated damages is granted
   in default of appearance, the Court must be satisfied that
   (a) the
   claim is genuine, (b) the quantum is reasonable considering

   
   

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the
injuries sustained and (c) evidence of those injuries. There is no
evidence about the details of plaintiff/respondent's claim.

As
earlier intimated the appeal was allowed. The matter will go back to
the Subordinate Court of Mohale's Hoek. Leave is granted
to
appellant/applicant/defendant to defend the action provided a plea is
filed within 30 days from October 18th 1985. The original
record is
to be returned to the magistrate forthwith.

It is to
be noted that unless both parties agree only a Subordinate Court of a
Resident Magistrate has the civil jurisdiction to
entertain a civil
claim involving M2 000. See s.16(1)(d) of the Subordinate Courts
Proclamation as amended. If no such person is
available in Mohale's
Hoek a magistrate with the necessary jurisdiction should be called or
an applica­tion be made for trial
in the High Court in terms of
s.6 of the High Court Act 1978.

CHIEF
JUSTICE

15th
November 1985

For
Appellant : Mr. Mda )

For
Respondent : Mr. Ramodibeli ) with copy of Judgement