CIV/APN/96/84

IN THE
HIGH COURT OF LESOTHO

In the
Application of :

PHILLIP
MOSAE ................. Applicant

and

LESOTHO
AGRICULTURAL DEVELOPMENT

BANK...........................
Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Mr. Justice B.K. Molai on the 6th day of August, 1986.

This
application has already been dismissed with costs and the following
are my reasons for the decision.

On 30th
April, 1984 the applicant herein filed with the Registrar of this
Court an urgent application in which he moved for an order
framed in
the following terms:

"(1) That a Rule Nisi be and is hereby issued returnable on a
date to be determined by the court calling upon the Respondent
to
show cause, if any, why:-

1. Execution
   in CIV/T/284/83 shall not be stayed pending the fina-lisation of the
   application for rescission of default judgment.

   
   

2. That
   default judgment entered in CIV/T/284/83 on the 15th December, 1983
   be rescinded.

   
   

3. That
   prayer 1(a) operates as interim interdict with immediate effect.

   
   

4. That
   Respondent pay the costs of this application in the event of
   opposition.

   
   

5. )
   Further and/or alternative relief."

   
   

The
application was placed before Cotran, C.J. who however, ordered that
the papers be served on the Respondent

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in the
normal manner, presumably in accordance with the provisions of Rule
27(6)(a) of the High Court Rules 1980. The application
was duly
served on the Respondent on 30th May, 1984. The Respondent entered
appearance to oppose the application. He, however,
intimated that he
did not wish to file any answering affidavit but would argue the
matter on the day it was set down for hearing.
We had, therefore,
only the applicant's founding affidavit to rely on, for the decision
in this matter.

The facts
disclosed by the founding affidavit were that on 15th December, 1983,
the Respondent obtained a default judgment against
the applicant in
CIV/T/284/83 apparently for failing to pay his monthly instalments.
The applicant had, however, not been served
with the summons and the
purported return of service did not show to whom the service was
effected - A copy of the return of service,
annexure 'B' was attached
- Consequently, the default judgment was irre­gularly obtained.

On 3rd
February, 1984, the applicant knew for the first time that the
default judgment had been obtained against him. He then contacted
his
lawyer and instructed him to apply for a rescission of the default
judgment on the grounds that (a) no service had been effected
on him.
He was not, therefore, in willful default. (b) He had pros­pects
of success in the main action in that he never entered
into an
agreement to pay definite instalments per month. He had only been
told by a certain Mr. Mashapha, an official of the Respondent,
to pay
instalments irregularly _Two receipts, annexures "D1" and
"D2" reflecting the amounts of M2,370-34 and
M50-00
respectively were attached as proof of irregular payments of
instalments - Wherefor the applicant prayed for an order as

aforesaid.

I have
had a look at the copy of the return of service annexure 'B',
according to which the Deputy Sheriff had served the summons
"on
Defendant" on 31st October, 1983. There was no substance,
therefore, in the applicant's averment that he had not
been served
with the summons and the return of service did not show on whom
service had been effected.

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It was
clear from his founding affidavit that the applicant never filed a
notice of appearance to defend CIV/T/284/83. If, notwithstanding

service of the summons in CIV/T/284/83, the applicant did not enter
appearance to defend the action, it seemed to me he was in
willful
default and judgment had been correctly entered against him in terms
of the provisions of Rule 27(5) of the High Court
Rules 1980.

On the
question of prospects of success in the main action, the Respondent
filed no affidavit to gainsay the applicant's averment
that there was
no agreement binding him to pay definite instalments per month i.e.
he could pay when and if funds permitted and
the question of arrears
did not, therefore, arise.

I would
normally have been prepared to grant rescis­sion on the ground
that prospects of success existed in this matter were
it not for the
fact that it was not disputed in argument, that the applicant had not
furnished security in terms of the provisions
of sub-rule (6)(b) of
Rule 27 of the High Court Rules, supra, The sub-rule reads, in part:

"6(a) where judgment has been granted against defendant in terms
of this rule or where absolution from the instance has been
granted
to a Plaintiff, the defendant or Plaintiff, as the case may be, may
within twenty-one days after he has knowledge of such
judgment apply
to court, on notice to the other party, to set aside such judgment.

(b) the party so applying must furnish security to the satisfaction
of the Registrar for the payment to the other party of the
costs of
the default judgment and of the application for rescission of such
judgment." (My underlining)

I have
underscored the word "must" in the above cited subrule 6(b)
to indicate my view that the provisions thereof are
mandatory and the
applicant's failure to comply therewith was fatal to his application
for rescission of the default judgment.
The applicant could not,
therefore, be entitled to the remedy sought under prayer (2) of the
notice of

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motion.
That, in my opinion, disposed of the matter for the other prayers in
the notice of motion really depended on the success
of the
application to rescind the default judgment in CIV/T/284/83.

I
accordingly dismissed the application with costs as aforesaid.

B.K.
MOLAI

JUDGE

6th
August. 1986.

For
Applicant : Mr. Kambule

For
Respondent : Mr. Koornhoff.