CIV/APN/192/83

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

MR. IVAN
HYLAND Applicant

V

MR. W.C.
LEPOTA Respondent

JUDGMENT

Delivered
by the Hon. Acting Mr, Justice D.S. Levy on the 25th November, 1985.

This is
the extended return day of a provisional order of sequestration of
the Respondent.

The only
substantial challenge offered by Respondent to confirmation of the
rule relates to the Act of Insolvency upon which Applicant
relies.

A
judgment had been obtained by Pandora Motors (Pty) Ltd. (Pandora)
against Respondent for an amount of M3018.56 and for the further

amount of M1305.60 for the taxed costs awarded to Pandora in one of
several actions instituted by Pandora against Respondent and
which
were all settled between the parties and judgments entered by cosent.

Pandora
ceded its claims against Respondent to Applicant on 27th May 1982 and
it is not disputed by Respondent that Applicant is
his creditor in
respect of the judgment debts previously owing by him to Pandora.

However,
Applicant took no steps to have himself

2

substituted
as judgment creditor but continued the proceedings instituted by
Pandora in the latter's name against Respondent. In
particular the
writ of execution which was issued on 27th July 1983, and which led
to the nulla bona return upon which Applicant
relies, was issued in
Pandora's name, but since the law allows a creditor to rely upon a
nulla bona return to a writ issued by
some other creditor, there
cannot be any objection to a nulla bona return to a writ issued by
Applicant's predecessor in title
or cedent of the debt in question.
See Kerbel v Chames 1925 W.L.D. 72.

Respondent's
attack upon the petition is twofold :

1. The
   writ was irregular since the capital amount of the writ remained at
   M3018.56 notwithstanding that an amount of M1200 had been
   paid off.

   
   

2. The
   Sheriff's return which merely stated that "the Respondent has
   failed to show (the Sheriff) whether he has any assets
   to attach in
   respect of the debt" does not satisfy the requirements of
   section 8(b) of the Insolvency Proclamation in regard
   to nulla bona
   returns. A denial by the Respondent that the writ had in fact not
   been executed by the Sheriff, wisely, was not
   persisted in at the
   hearing, no doubt in view of the Sheriff's corroborating affidavit.

   
   

1. The
   writ, as issued, does not reflect the reduction of the capital
   amount consequent upon payments made by Respondent. But the
   balance
   remaining was still M1818.56 plus taxed costs and no offer was made
   by Respondent to satisfy that amount either by payment
   or by
   pointing out attachable goods to the value of that amount. Nor was
   any attempt made to satisfy the writ in respect of the
   taxed costs.
   The Respondent initially had denied that notice of taxation of such
   costs had been given but, again

   
   

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wisely, this denial was not persisted in, in the light of the
receipted notice of taxation to Respondent's attorneys produced by

Applicant in answer to this denial..

2. The
   Respondent contented himself upon

   
   

presentation of the writ with the statement to the Sheriff that the
writ was irregular. He gave no reason to the Sheriff for that

statement nor did he offer to satisfy any part of it.

I am satisfied that the Respondent was in no way misled by the amount
stated in the writ, that he was fully aware that the amount
of the
writ was for the Judgment entered against him, and he knew what
payments he had made on it. The writ cannot therefore be
said to be
irregular.

Section
8(b) of the Insolvency Proclamation 51 of 1957 provides, inter alia,
that a debtor commits an act of Insolvency if he fails
to satisfy a
judgment of a Court or to indicate to the officer executing the
judgment disposable property sufficient to satisfy
it. The words of
the section cited above create two separate acts of Insolvency, the
one being when the debtor fails to satisfy
the judgment and the
second when he fails to indicate property sufficient to satisfy it. I
am satisfied that the Sheriff's return
clearly expresses that the
Respondent failed to indicate to the Sheriff sufficient or any
disposable property to satisfy it and
thereby committed an act of
Insolvency in terms of section 8(b) of the Insolvency Proclamation,
See Mellet v Smith 1930 W.L.D.
124. There will be a final order of
sequestration and the rule is confirmed.

D.S. LEVY

ACTING
JUDGE.

25th
November, 1985.

For
Applicant : Mr. Harley

For
Respondent : Mr. Matsau.