CIV/424/85
IN THE HIGH COURT OF LESOTHO
In the matter of:
STANDARD CHARTERED BANK AFRICA PLC Plaintiff
v
FRANCIS MALEFETSANE LICHABA Defendant
RULING
Delivered by the Hon. Sir Peter Allen on the 2nd day of June, 1987
This is a claim for monies lent and advanced by the plaintiff bank to the defendant's wife. Apparently both of them were working for the bank, the defendant at the Maseru Branch and his wife, Mrs. Lichaba, at Mohale's Hoek Branch, where she was the Branch Manager.
In September 1983, the bank advanced to Mrs Lichaba a loan to purchase a motor car. A car loan account was opened in her name in addition to her personal current account. By May 1985 her repayments of the loan at M.335.80 per month had stopped and the account was in overdraft. In July 1984 she had been dismissed from the Bank's employment and this action was filed in order to recover M.10,722.13 due on the car loan account and M.186.60 due on her current account.
In a letter dated 16 June 1985 addressed to Mrs Lichaba
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the Bank's attorneys informed her of this amount due ( a total of M.10,908.73) and that they had been instructed to issue a summons
against her.
That would seem to me to be reasonable in the circumstances. However, instead of carrying out those instructions the Bank's attorneys
proceeded to issue a summons and bring this action against her husband, the defendant, on the grounds that he is married to her in community of property. I find this perplexing. If the Bank could employ Mrs Lichaba, and pay her a salary and run her accounts and grant her a loan and an overdraft, all in her own name and right, then why could they not bring a suit against her (as it was stated they were instructed to do)? She could at least have been a defendant, even if not the only one.
As far as the car loan is concerned the plaintiff relies on documents to show that the defendant had knowledge of and consented to the car loan. In document A.8, a letter dated 18 June 1984, from the defendant to the Chief Manager of the Bank, the defendant admitted that he was aware of the loan. He wrote, "I am aware that a loan was granted to my wife," and added "since my wife is married in community of property, the said loan bought an asset which accrued into the joint estate." Further on he asserted that the repayment instalments were still being paid at the rate of M.335,80 per month.
The defendant clearly knew that his wife had this car since not only did he admit it but apparently he was driving it at the time of the accident when the vehicle was written off.
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The defendant's contention, however, was that, in the plaintiff's Declaration, para.3, it states:
" During about September, 1983, Defendant lent and advanced monies and granted overdraft facilities to Defendant's aforesaid wife at her special instance and request and with the Defendant's consent."
Mr. Pheko submitted that it was thus a foundation of the plaintiff's claim that the loan and overdraft were granted to her with the consent of the defendant at that time, and that this was not proved, only that he later consented to it. Mr. Pheko therefore submitted that there was insufficient prima facie evidence to support the allegation and that there was consequently no case for the defendant to answer. He asked for absolution from the instance.
Mr. Edeling argued that the consent could be given in advance or subsequently and that the defendant's later ratification in fact
amounted to consent. There is no doubt that the defendant did ratify the contract and, as I understand it, if a husband ratifies such a contract, it is validated with retroactive effect, and the husband must carry out the obligations which his wife undertook.
Mr. Pheko next objected that the question of ratification had only been raised at that stage and that it had not been pleaded, so it could not be raised in argument. He did not cite any authorities for this view. In my view counsel should be ready with authorities as a result of properly preparing a case for trial. I do not propose to go searching for them when not one is cited.
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As far as I am concerned the defendant's consent to the loan was pleaded. Ratification is merely a later consent which then becomes retroactive in effect. That means it is also a form of consent. I consider that it would be an unacceptable quibble to hold that consent pleaded does not include later ratification, and I shall not do so.
I am satisfied that the defendant did so consent and that there is a case against him with regard to the car loan. However, I am not satisfied that the same applies to the overdraft facility and I find that the defendant has no case to answer with regard to that part of the claim, i.e., for M,186.60.
I have only one other thing to add and that is that I do not consider that, in the circumstances of this case, a motor car could properly be considered to be a household necessity. It is a very useful asset but, nevertheless, a luxury not a necessity.
P. A. P. J. ALLEN
JUDGE
2nd June, 1987
For the Plaintiff : Mr. Edeling
For the Defendant : Mr. Pheko