CIV/APN/465A/03
IN THE HIGH COURT OF LESOTHO
In the matter between:
LEBUSA MOTLOMELO APPLICANT
And
LETHABELA MATHE 1st RESPONDENT
BOLIBA MULTI-PURPOSE COOPERATIVE 2ND RESPONDENT
LESOTHO BANK (1999) LIMITED 3rd RESPONDENT
JUDGMENT
DELIVERED BY THE HONOURABLE MRS. K.J. GUNI ON THE 9th DAY OF AUGUST. 2004
An application for the dissolution of partnership.
The statute governing the creation and dissolution of partnership.
Is there any other law that is applicable in matters of partnership?
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[1] PARTIES TO THE SUIT
The applicant in this matter is one LEBUSA MOTLOMELO an adult male mosotho - residing at MAZENOD in the district of MASERU. The 1st respondent is LETHABELA MATHE an adult male mosotho - residing at HA BOIKETLO LE SEKEPE, MAZENOD in the district of MASERU. The 2nd respondent is BOLIBA MULTI-PURPOSE COOPERATIVE carrying on business as such here in MASERU. The 3r respondent is LESOTHO BANK (1999) LIMITED- carrying on the business of banking in this country. The applicant herein approached this court on an urgent basis and sought the two types of relief in the following terms:-
1. URGENT RELIEF
Dispensing with the ordinary rules pertaining to the modes and periods of service.
Ordering and directing that the Deputy Sheriff take possession of a mini-bus; white and brown in colour; bearing chassis No. HB300008369; Engine numbers 24121954D; registration letters and numbers E 4854, presently in the possession of the first respondent, pending the finalization hereof and/or the finalization of the ordinary relief hereunder;
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Ordering and directing second and third respondents to freeze all banking accounts held by "Double LL and MM trans" and/or first respondent, in particular;
i. account number 800836513 held by the partnership (Double LL and MM trans) with second respondent.
ii. all accounts held by the first respondent with third respondent.
Calling upon the respondents to show cause, if any, on a day to be determined by the above Honourable Court why the above orders shall not be made final pending the ordinary relief hereunder.
Calling upon the first respondent to show cause, if any. on a day to be determined by the above Honourable Court why the following ordinary relies shall not be granted.
2. ORDINARY RELIEF
Declaring dissolution of the partnership.
Appointing a Liquidator with authority to realize the whole of he Partnership assets, to liquidate the liabilities of the Partnership, to prepare a final account and to pay to the parties
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whatever is owing to them by virtue of the Partnership Agreement.
Granting parties leave to lead oral evidence should a need to lead to oral evidence arise.
Ordering the respondents to pay costs hereof only in the event of opposition.
Granting applicant such further and/or alternative relief.
(2) APPLICANT'S CASE
Applicant alleges that he and the 1st respondent entered with an agreement of partnership with the object of conducting business for the purpose of generating profit for the joint benefit of the parties. The alleged partnership came into being on the 10th October, 2002. It lasted for a period of approximately one year. The relations between the partners deteriorated badly to the extent that their alleged partnership was in fact terminated. It was this state of affairs which prompted this applicant to approach this court and obtain the rule nisi in the terms as set out in paragraph [ 1 ] above.
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According to the applicant he had the possession of the minibus which the partners were using to generate profit for their joint benefit. The said minibus was the contribution of the 1st respondent to the alleged partnership. The applicant contributed his labour and expenses to repair the minibus. In the first six months of the partnership the applicant had possession, control and management of the minibus. He accounted for the profit to the 1st respondent. In the second half of that year for three months the 1s1 respondent had the possession, control and management of the minibus. It is alleged that the 1st respondent failed or neglected to account for the profits to the applicant. Hence this suit.
(3) 1st RESPONDENTS CASE
The 1st respondent had raised a question of law which seems to dispute the existence of the alleged agreement of partnership. It is alleged that the alleged partnership was not registered in terms of SECTION 2( 1) PROCLAMATION NO. 78 OF 1957. The deed of the alleged partnership does not therefore comply with the terms of SECTION (5) (1) PROCLAMATION NO.78 OF 1957.
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In addition the 1st respondent denies that there was any agreement of partnership between him and this applicant. He avers that there was a joint venture whereby the applicant contributed is labour as a driver for this minibus. The 1st respondent denies that the applicant repaired at his expenses his minibus.
The other two respondents have not filed any opposing papers. Therefore they must be willing and prepared to abide by the decision reached by this court in this matter.
|4| REGISTRATION OF PARTNERSHIP AND ITS EFFECT
What law is applicable in the determination of this dispute? Is it common law or statute law? Parties seemed to agree that it is statute. No one has relied on any principle of common law. Therefore the statutory law in particular the PARTNERSHIP PROCLAMATION 78 OF 1957 is the only applicable law. The law governing partnership is PROCLAMATION 78 OF 1957. It applies to partnership created or entered into after that statute was promulgated. The PROCLAMATION came into effect on the date fixed by HIGH COMMISSION NOTICE NO.8 OF 1958. The agreement of partnership must be entered into in writing.
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The terms of such agreement must be recorded.(SECTION 2 PROCLAMATION 78 of 1957]. The deed of the partnership must bear the signatures of all the partners who must sign before the notary or an administrative officer who shall attest the same accordingly. Once attested the deed of partnership must be registered within 60 days the period of such attestation, in the office of the Registrar, into whose custody the original deed shall be delivered. SECTION 2 PROCLAMATION 78 of 1957. Where the applicant relies on a written agreement, the onus of proving such an agreement lies on him.
The applicant is obliged in law to annex the agreement which he relies on or the extract of the portion on which he relies. MC WILLIAM V FIRST CONSOLIDATED HOLDINGS (Pty) LTD 1982 USA (A). This applicant despite his averment that he relies on the written agreement which he claimed to have attached, he did not.. There was no copy of that written agreement attached.
In terms of SECTION 5 PROCLAMATION 78 OF 1957, "every deed of partnership must record the date of the formation of the partnership- full names of the partners and their addresses, the purpose for which the
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partnership was formed and the period of its duration, etc [as set out in the Section 5]. The applicant has not alleged or proved that the requirements set out in SECTION 5 OF THE PARTNERSHIP PROCLAMATION were complied with. Therefore, there is no partnership in this matter. The applicant is not entitled to claim on the basis of the partnership if none existed. On this ground alone this application must fail. IT IS THEREFORE DISMISSED WITH COSTS.
K.J. Guni
JUDGE
For Applicant: Mr. Dichaba
For 1st Respondent: K.E.M. Chambers
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