Lechesa v Basutoland Congress Party and Others (CIV/APN 164 of 98) [1998] LSCA 44 (15 May 1998)

CIV/APN/164/98 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e e n: L E F U L E C H E SA A P P L I C A NT and T HE B A S U T O L A ND C O N G R E SS P A R TY R E S P O N D E NT T HE I N D E P E N D E NT E L E C T O R AL C O M M I S S I ON 2ND R E S P O N D E NT R E S P O N D E NT L I P H A P A NG M O J A KI R E S P O N D E NT T HE A T T O R N EY G E N E R AL 4TH 3RD 1ST J U G E M E N T D e l i v e r ed by t he H o n o u r a b le C h i ef Justice Mr Justice J. L. K H E O LA on t he 15th d ay of M a y. 1 9 9 8. T h is is an application for an order in the following t e r m s: 1. 2. T he R u l es of C o u rt c o n c e r n i ng periods of notices a nd services of process are h e r e by d i s p e n s ed w i th on a c c o u nt of the u r g e n cy of this matter; A R u le Nisi is h e r e by issued returnable on 20th April 1 9 98 at 9.30 a.m. calling u p on R e s p o n d e n ts to s h ow case if a n y, w hy the following order shall n ot be m a de final, a) declaring t he n o m i n a t i on of T h i rd R e s p o n d e nt as a candidate for First in the M t. R e s p o n d e nt M o o r o si Constituency as null and void a nd of no force a nd effect; b) declaring Applicant as the lawfully a nd duly nominated candidate for First R e s p o n d e nt M o o r o si f o r t h c o m i ng C o n s t i t u e n cy Parliamentary elections; in the M t. for the Alternatively to (b) a b o ve directing First and S e c o nd Respondents to arrange for a nd facilitate the nomination of Applicant as a candidate for First R e s p o n d e nt M o o r o si Constituency within such time as the H o n o u r a b le Court m ay determine; in the M t, c) directing Respondents to p ay costs hereof; d) granting Applicant such further and/or alternative relief as m ay be appropriate. 3. Prayers 2 (a) & (b) to operate with immediate effect as interim orders. This application w as brought ex parte. T he events giving rise to this application started on the 31st M a r c h, 1 9 98 w h en the applicant obtained an order in the following terms: 1. T he Rules of Court concerning period of notices a nd service of process are hereby dispensed with on account of the urgency of this matter; 2. A Rule Nisi is hereby issued returnable on 15th April, 1 9 98 at 9.30 a.m. calling u p on Respondents to s h ow cause if any, w hy the following order shall not be m a de final, to wit, a) b) c) d) the decision of First R e s p o n d e nt of 24th M a r ch 1 9 98 in terms of w h i ch the said First Respondent ordered the re-convening and re-scheduling of the M t. M o o r o si Constituency Conference of m e m b e rs of S e c o nd R e s p o n d e nt be declared null and void on account of such decision being illegal, irregular, unconstitutional and being fraught with procedural and substantial injustice and impropriety; First Respondent be directed to desist from interfering with, but to accept the d e c i s i o n s, a nd recommendations of the M t. M o o r o si Constituency Conference of m e m b e rs of S e c o nd Respondent w h i ch w e re arrived at on 21-22 M a r ch 1998; r e s o l u t i o ns R e s p o n d e n ts be directed to pay the costs hereof; Applicant be granted further and/or alternative relief. 3. Prayers 2 (a) & (b) should operate with immediate effect as interim orders. That order w as granted by My Brother R a m o d i b e di J. and m a de returnable on the 15th April, 1998. On that day the rule w as extended to the 20th April, 1998. On that day the file w as placed before me a nd Mr Phafane, counsel for the applicant, asked that the rule be confirmed on the ground of non-appearance and failure to file N o t i ce of intention to o p p o s e. I c o n f i r m ed the rule as p r a y ed without g o i ng into the merits. It appears that o p p o s i ng papers w e re subsequently filed on the 24th April, 1998. On the 7th M a y, 1 9 98 a N o t i ce of M o t i on w as filed in w h i ch an application for stay of execution p e n d i ng rescission of the order by default on the 20th April, 1 9 98 w as m a d e. T he rule w as granted a nd m a de returnable on the 8th M a y, 1 9 9 8. T he rule w as discharged with costs a nd I indicated that reasons w o u ld be given at a later date. Unfortunately I h a ve not yet g i v en s u ch reasons b e c a u se there are other urgent matters to w h i ch I h a ve to attend. In the m e a n t i me on the 22nd April, 1 9 98 the applicant filed another application in w h i ch he seeks an order in the following t e r m s: 1. 2. T he R u l es of C o u rt concerning periods of notices a nd service of process are h e r e by dispensed with on account of the u r g e n cy of this matter; A R u le Nisi is h e r e by issued returnable on 30th April, 1 9 98 at 9.30 a.m. calling u p on R e s p o n d e n ts to s h ow cause if any, w hy the following order shall not be m a de final; a) declaring the n o m i n a t i on of T h i rd R e s p o n d e nt as a candidate for First M o o r o si R e s p o n d e nt Constituency as null and void and of no force and effect; in the M t. b) declaring Applicant as the lawfully a nd duly nominated candidate for First M o o r o si R e s p o n d e nt C o n s t i t u e n cy f o r t h c o m i ng Parliamentary elections; in the M t. for the Alternatively to (b) a b o ve Directing First a nd S e c o nd R e s p o n d e n ts to arrange for a nd facilitate the nomination of Applicant as a candidate for First M o o r o si R e s p o n d e nt Constituency within such time as the H o n o u r a b le Court m ay determine; in the M t. c) directing Respondents to p ay costs hereof; d) granting Applicant such further and/or alternative relief as m ay be appropriate. 3. Prayers 2 (a) & (b) to operate with immediate effect as interim orders. It is this last application with w h i ch I wish to deal. T he applicant alleges that he is a m e m b er of the First R e s p o n d e nt and holds the position of Secretary of the Constituency C o m m i t t ee of M t. M o o r o si within the First R e s p o n d e n t. He alleges that in terms of an interim order of this Court in C I V / A P N / 1 3 9 / 98 this Court ordered a m o n g st other respondents, the first respondent to desist f r om interfering with, but to accept the decisions, resolutions and r e c o m m e n d a t i o ns of the M r. M o o r o si Constituency Conference of m e m b e rs of the First R e s p o n d e nt (B. C. P) w h i ch w e re arrived at on 21st - 22nd M a r c h, 1 9 9 8. O ne of the resolutions of the Constituency Conference w as that he (applicant) be n o m i n a t ed as a candidate for the first respondent in the Constituency of M t. M o o r o si in the forthcoming parliamentary elections to be conducted by s e c o nd respondent. Despite the fact that the first and third respondents w e re served with the interim order on the 2nd April, 1 9 98 the first respondent ignored the order a nd nominated the third respondent before the second respondent as its candidate. T he applicant alleges that he filed an objection to the nomination of the third respondent but second respondent insisted that it be served with the Court Order interdicting it. In its answering affidavit deposed to by o ne Jack M o p e li w ho alleges that he is the Publicity - Secretary of the first respondent t wo preliminary points of l aw w e re raised. T he first o ne is that the interim orders granted in respect of prayers 2 (a) a nd (b) w e re erroneously sought a nd granted in the absence of the other party. T h e se are not the kind of orders w h i ch could be granted ex parte and the applicant ought not to have sought them. Reference w as m a de to the case of B e r n a rd M o s e l a nd a nd others v. M a n a g er - B o h h o m me H i gh School a nd others 1 9 9 1 - 1 9 92 L LR 132. T he headnote reads as follows: " M a x i ms - A u di alteram partem - giving a hearing after an adverse decision has been m a de to be d o ne in exceptional circumstances only." I w as again referred to M a s e c h e le K h a k e t la v. M a m o h au M a l a h l e ha a nd others C. of A ( C I V) N o . 18 of 1991 w h i ch stressed the need to give notice to the other party except in very exceptional circumstances. In the present case the applicant had earlier obtained a Court Order w h i ch the first respondent ignored and w e nt ahead to elect or nominate the third respondent as its candidate in the c o m i ng general elections at M t. M o o r o si Constituency. There is no doubt that the first respondent committed contempt of court. H o w e v e r, the applicant decided not to institute contempt proceedings but to enforce the C o u rt order by seeking declaratory orders b a s ed on the default j u d g m e nt he obtained on the 2 0* April, 1 9 9 8. T he first a nd third respondents k n ew that they h ad defied the court order. T h ey k n ew that the election d ay w as just t wo w e e ks a w a y. T he matter is v e ry urgent b e c a u se the s e c o nd respondent still h as to print ballot p a p e rs a nd h as to insert the n a me of the first respondent's candidate at M t. M o o r o si Constituency. T he e x t r e me u r g e n cy in this case m a k es an exceptional circumstance entitling the applicant to m a ke the application ex parte. I m u st stress that the applicant did n ot s e ek a final order. He s o u g ht an interim order w h i ch required the respondents to a p p e ar before C o u rt a nd s h ow cause w hy the declaratory orders should n ot be m a d e. T he matter w as urgent b e c a u se the s e c o nd respondent h ad to be s t o p p ed f r om printing p a p e rs w h i ch s h o w ed the n a me of the third r e s p o n d e nt as the candidate of the first respondent. T he granting of the rule nisi has not prejudiced the respondents in a ny w ay except that they received the papers late after a default j u d g m e nt h ad b e en obtained. It w as not the fault of the applicant that this h a p p e n e d; it w as the absence of their attorney w ho w as out of M a s e ru at the relevant time. I agree that the Court of A p p e al has in the past expressed dissatisfaction a nd criticised the practice w h e r e by litigants sought a nd obtained interim rules in matters w h i ch clearly warrant the hearing of the other party before granting orders w h i ch affect the rights of others. In the present case the first a nd third respondents h ad no rights at all. T h ey w e re actually defying the j u d g m e nt of this Court w h i ch w as in favour of the applicant. M r. M a t a b a n e, counsel for first a nd third respondents, submitted that ex facie the papers filed by the applicant in support of his claim, he h as not disclosed a cause of action as against respondents in that: a) T he applicant h as not disclosed a ny irregularity or impropriety warranting the declaration of the nomination of the third respondent null and void. b) T h e re is no e v i d e n ce ex facie the applicant's papers that he w as n o m i n a t ed as a candidate on the nomination day. There is absolutely no basis for his praying that the C o u rt should declare h im as the "lawfully a nd duly n o m i n a t ed candidate for the first respondent". c) First a nd second respondents do not n o m i n a te and/or facilitate the nomination of candidates. In terms of the Electoral L a ws the first and second respondents respectively merely endorse a nd return n o m i n a t ed candidates. N o m i n a t i o ns are d o ne by electors. T he first respondent purports to h a ve forgotten that per its Circular N u m b e r / R e f e r e n ce N EC - Z/3-98 dated the 26th January, 1 9 9 8, it (first respondent) in exercise of the p o w e rs vested in it by its Constitution issued instructions to its m e m b e rs to elect Constituency C o m m i t t e es and submit n a m es of persons r e c o m m e n d ed as candidates on behalf of first respondent in the forthcoming elections in Lesotho. On the 21st a nd 22nd M a r c h, 1 9 98 a meeting w as c o n v e n ed by the m e m b e rs of the first respondent within the Constituency of M t. M o o r o s i. T he n ew Constituency C o m m i t t ee w as elected and the applicant w as elected Secretary. He w as also nominated and accordingly r e c o m m e n d ed as the M t. M o o r o si Constituency Candidate without opposition. T he trouble started w h en the National executive C o m m i t t ee of the first respondent refused to accept the results and reconvened and rescheduled the M t. M o o r o si Constituency Conference. T h e se are the facts w h i ch appear in the affidavits. T he applicant has a clear cause of action against the respondents. He w as nominated or elected as first respondents's candidate in the M t. M o o r o si Constituency. In the result the rule is confirmed in terms of prayers (a), (b) and (c). J . L . K H E O LA CHIEF JUSTICE 15th m a y, 1998 For Applicant F or Respondents - Mr M a t a b a ne - Mr Phafane