Moeketsi v Chief Magistrate and Another (CIV/APN 136 of 93) [1994] LSCA 116 (12 July 1994)

IN T HE H I GH C O U RT OF L E S O T HO In the m a t t er b e t w e e n: M O L I SE M O E K E T SI vs T HE C H I EF M A G I S T R A TE T H E KO M O F O KA C I V / A P N / 1 3 6 / 93 A p p l i c a nt 1st R e s p o n d e nt 2nd R e s p o n d e nt J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r. J u s t i ce T. M o n a p a t hi on the 1 2 th day of J u l y. 1 9 94 T h is m a t t er came up by w ay of r e v i ew to this Court by the A p p l i c a n t, w ho was P l a i n t i ff in the M a g i s t r a t e 's Court of M a s e r u. T h is file p e r t a i n i ng to the r e v i e w ed m a t t er (under case n u m b er cc 8 5 2 / 9 2) w as called up to this C o u rt in a c c o r d a n ce w i th R u le 50 of the H i gh C o u r t. The h i s t o ry of the m a t er is not c o m p l i c a t e d. T h e re are few t h i n gs or r a t h er d e c i s i o ns of the m a g i s t r a t es w h i ch are s t r a n ge to say the l e a s t. T he m a in m a t t er is an a p p l i c a t i on for d e f a u lt j u d g m e nt m a de by the D e f e n d a nt who is now the s e c o nd r e s p o n d e n t. -2- P l a i n t i ff issued s u m m o ns for d a m a g es in the amount of 19,900.00 for a s e r i o us a s s a u lt and o t h er r e l i ef c o n s e q u e nt upon he a s s a u l t. D e f e n d a nt was duly served w i th s u m m o n s. He did not efend and a d e f a u lt j u d g m e nt was e n t e r ed a g a i n st him for the elief c l a i m e d. Close to two m o n t hs after the s e r v i ce of s u m m o ns writ was issued in the sum of M 1 0 , 2 5 8 . 4 5. It was on the trength of the writ that 2 (two) t r a c t o r s, one gas cylinder and wo freezer of the D e f e n d a nt w e re a t t a c h e d. About four m o n t hs after the m e s s e n g er of Court p r o c e e d ed to r e m o ve four fridges and ne Isuzu v a n. The Court M e s s e n g er and his assistant were a y l a i d, but on s h o w i ng the a t t a c k e rs the w r it with w h i ch they ere armed the a t t a c k e rs left and let f r ee the m e s s e n g e rs to proceed to the M a s e ru M a g i s t r a t e s' Court p r e m i s e s. The a t t a ck as a bad o n e. I need not b u r d en this j u d g m e nt with u n n e c e s s a ry d e t a i l s. It w as not clear what day of the w e ek it was but the messenger s a ys in his a f f i d a v it that he learned that Her W o r s h ip Mrs H l a j o a ne has d i r e c t ed that the goods be released to the judgment d e b t o r. T h e re is a b s o l u t e ly no t r a ce of record, n o t es for m i n u t es of how this was brought a b o u t. T h is was i n d e f e n s i b le and i r r e g u l a r. A M a g i s t r a te Court is a Court of record and is found to g i ve r e a s o ns for its d e c i s i o n s. It was on the 26th F e b r u a ry 1 9 93 w h en the m e s s e n g er removed the g o o ds as a f o r e s a i d. The a f f i d a v it of the P l a i n t i f f 's C o u n s el r e v e a ls that as at he 2nd D e c e m b er 1 9 9 2, the j u d g m e nt d e b t or had filed an -3- a p p l i c a t i on for r e s c i s s i on of j u d g m e nt i n t e n d ed to be m o v ed on the 7th D e c e m b er 1 9 9 2, It w as out of time as he a l l e g e s. On the 7 th D e c e m b er 1 9 9 2, the j u d g m e nt d e b t o r 's C o u n s el m o v ed for p o s t p o n e m e nt of the m a t t er sine d i e. The m i n u te on the c o v er of the Court file shows that it w as by c o n s e n t. M r. M a h l a k e ng P l a i n t i f f 's A t t o r n ey s a ys in his a f f i d a v it at p a r a g r a ph 5.2 "The m a t t er t h e r e a f t er in the l i m bo u n t il F e b r u a ry 1 9 9 3, w h en the C o u rt was i n s t r u c t ed to r e m o v e .. T h e re was and there is s t i ll no o r d er of C o u rt s t a v i ng e x e c u t i o n ." It is only i m p o r t a nt to m e n t i on that b e s i d es that in the p r a y er (b) of the N o t i ce of A p p l i c a t i on the A p p l i c a n ts a s ks for " s u s p e n d i ng e x e c u t i on of w r i t" no s u ch order had b e en o b t a i n e d. It is e q u a l ly i m p o r t a nt to note that the P l a i n t i ff a l so f i l ed his n o t i ce of i n t e n t i on to o p p o se the D e f e n d a n t 's a p p l i c a t i on for r e s c i s s i on of j u d g m e nt on the 11th D e c e m b er 1 9 9 3, w h i ch n o t i ce was d u ly s e r v ed on the D e f e n d a n t, I n d e ed up to t he 3rd M a r ch 1993 the P l a i n t i ff h as n ot f i l ed any a f f i d a v i ts in s u p p o rt of his o p p o s i t i on to the a p p l i c a t i on for d e f a u lt j u d g m e n t. I need o n ly r e p r o d u ce the w h o le of the p a r a g r a ph six of the A p p l i c a n t 's C o u n s el a f f i d a v it in s u p p o r t, in as m u ch as it s e e ms to e n c a p s u l a te the c a se of the A p p l i c a nt and the g r o u n ds of r e v i e w. H e re it f o l l o w s: "6 I h a ve s i n ce d i s c o v e r ed that a f t er the C o u rt m e s s e n g er had -4- removed the property, and after the Court has released the property as more fully appears from the affidavit of Mr. M a t l a l i, Counsel for the J u d g m e n t - d e b t or went to the Chief Magistrate on the 3rd March, 1993 and misrepresented that he has secured consent of the J u d g m e n t - C r e d i t o r 's Counsel to have Judgment rescinded. I respectfully submit that the order granted by His Worship the Chief Magistrate on the 3rd M a r c h, 1993 was irregular and the Chief Magistrate erred and/or misdirected himself on the following grounds, 6.1 The application was defective and improperly before Court in that it was brought out of time and without a requisite application for extension of time; 6.2 The application was opposed and it could not have been heard without proper notice to the party. 6.3 Counsel for the judgment-debtor appears to have negotiated the Court into granting a rescission by m i s r e p r e s e n t a t i on and in a desperate effort to leave the Court messenger in a dilemma vis-a-vis the o b s t r u c t i on and contempt perpetrated by the Judgment- debtor's a g e n t s ." The m i n u te of the magistrate of the 3rd March 1993 reads "By c o n s e n t, a p p l i c a t i on of A p p l i c a nt w h i ch has no o p p o s i t i on the a p p l i c a t i on for r e s c i s s i on is g r a n t e d ". But then (to this c o m e dy of e r r o r s) there should be e x p l a n a t i on to t h e se q u e s t i o n s: -5- (a) Why d o es it a p p e ar that the m a t t er was b r o u g ht b e f o re the m a g i s t r a te w i t h o ut a n o t i ce of set d o w n? T h e re is no e x p l a n a t i o n. (b) Why did the P l a i n t i f f / R e s p o n d e nt (in the Court a q u o) not f i le his o p p o s i ng p a p e rs or at least set d o wn the m a t t er w i th a v i ew to p r e s e n t i ng his o b j e c t i o ns to the a p p l i c a t i o n? M r. M a h l a k e ng for the P l a i n t i f f/ R e s p o n d e nt says that he w as not bound to m o ve or to take s t e ps to p r o s e c u te w h at e s s e n t i a l ly was his o p p o n e n t 's a p p l i c a t i o n, W h en the c i r c u m s t a n c es c o n c e r n i ng the c o n d u ct of the p a r t i es are w e i g h ed the f i r st one e x h i b i ts m o re a b s e n ce of fair p l a y, and m o re a b s e n ce of good f a i th t h an the o t h e r. It is i n t e r e s t i ng to n o te the r e p ly to the A p p l i c a n ts p a r a g r a ph 6 by the R e s p o n d e n t s' A t t o r n ey in his a f f i d a v i t. It is as f o l l o w s: "7 7.1 C o n t e n ts of this p a r a g r a ph as far as they refer to me -6- are most unfortunate to say the least. I never and could never make such a serious misrepresentation to the court. This is a very serious aspersion on my integrity for which my learned friend owes me an apology. 7.2 It is my humble submission that the application was made and moved timeously and that there was no irregularity for which at least the 2nd respondent and I can be blamed, I deny having misled or negotiated the court into doing anything wrong." It is clear this reply is merely emotive and answers nothing issuably. It is unable to answer as to the need to have given notice to the other party even by informal means or i n v i t a t i o n, if it was difficult to issue a formal notice of set down. But in any event how would the court be approached without notice. I cannot accept this approach by. the Respondents' Counsel (Applicant/Defendants Counsel in the Court a q u o ). Notice and service on the opposite party is the bedrock of our civil procedure and the very foundation of natural justice which Counsels can only ignore at their peril. I agree that this granting of rescission of judgment of the 3rd March 1993 was grossly irregular and indefensible. It clearly militates against fair play. -7- I am not p e r s u a d ed that the m e re f i l i ng of an a p p l i c a t i on for r e s c i s s i on of j u d g m e nt and for s u s p e n s i on of the w r it h as the e f f e ct s t a y i ng of e x e c u t i o n. It is not w i t h o ut m e r it or w i s d om that an a p p l i c a nt for r e s c i s s i on of j u d g m e nt w i ll u s u a l l y, o u t r i g h t ly and i n s t a n t ly a p p ly u r g e n t ly for an o r d er for s t ay of e x e c u t i on p e n d i ng h is a p p l i c a t i on for r e s c i s s i on of j u d g m e n t. T h is the 2nd R s p o n d e nt did not d o. It is in t h is ideal c i r c u m s t a n c es that an a p p l i c a nt w i ll a l so j o in the m e s s e n g er of C o u rt as a R e s p o n d e n t. T h is a p p l i c a t i on s h o u ld s u c c e e d. In the p r e m i s es I w o u ld m a ke the f o l l o w i ng o r d e r s: (a) T he d e f a u lt j u d g m e nt in CC 8 5 2 / 92 b e t w e en the A p p l i c a nt and S e c o nd R e s p o n d e nt is r e - i n s t a t ed u n l e ss r e s c i n d ed in t e r ms of the r u l es of C o u r t. (b) T he w r it of e x e c u t i on in CC 8 5 2 / 92 b e t w e en the A p p l i c a nt and the R e s p o n d e nt is r e i n s t a t ed u n l e ss s t a y ed in t e r ms of r u l es of C o u r t. (c) T he r e s p o n d e nt s h a ll pay the c o s ts of the C o u rt a q uo up to the s t a ge of i r r e g u l ar r e l e a se of the a t t a c h ed g o o d s. O t h e r w i se a d d i t i o n al c o s ts s h a ll be l e v i ed for any f r e sh a t t a c h m e nt and r e m o v a l. (d) T he R e s p o n d e n ts shall pay the costs of this a p p l i c a t i o n. -8- 1T. MONAPATHI JUDGE 12th J u l y, 1 9 94 For the A p p l i c a nt : M r. M a h l a k e ng For the 2nd Respondent : M r. M p o b o le