Rajele v Rajele and Another (CIV/APN 224 of 87) [1990] LSCA 55 (23 February 1990)

CIV/APN/224/87 IN THE HIGH COURT OF LESOTHO In the Application of: PAULOSE MOTLATSI RAJELE ...... Applicant and BELINA 'MALERATO RAJELE DEPUTY-SHERIFF (Mr. L. 'Nyane) 1st Respondent. 2nd Respondent J U D G M E NT Delivered by the Hon. Mr. Justice B. K. Molai on the 23rd day of February, 1990. The applicant herein has moved the court for an order, against the Respondents, framed in the following terms: "(a) Staying the execution of judgment in CIV/APN/224/87 pending the determination of the appeal therein; (b) Directing second Respondent to release forthwith tD Applicant the property attached and/or removed by him on 8th January, 1990. (c) Directing Respondents to pay the costs hereof only in the event of opposition; (d) Granting Applicant such further and/or alternative relief." The Respondents intimated their intention to oppose the application. Affidavits were duly filed by the parties. Very briefly, it is clear from the affidavits that the gist of the relief sought by the applicant is the stay of execution of maintenance order which the first defendant has obtained, 2/ pendente -2- p e n d e n te lite, against the a p p l i c a n t. Assuming t he correctness t h at the order was o b t a i n ed p e n d e n te lite, it stands to reason that the proceedings in which the o r d er was g r a n t ed w e re interlocutory. It is trite law that no appeal lies against t he d e c i s i on given in interlocutory p r o c e e d i n gs u n l e s s, of c o u r s e, it is by leave of t he court of a p p e a l. It is common c a u se t h at although the appeal has been lodged to t he court of appeal a g a i n st the decision of the High Court granting m a i n t e n a n ce o r d e r, pendente l i t e, the former court has not g i v en a d e c i s i on in t he m a t t e r. That being s o, t he d e c i s i on of t he High Court still stands good. It w as on t he basis of a valid d e c i s i on of t he High Court that a writ of e x e c u t i on had been issued and the Deputy Sheriff carried it o u t. The fact t h at an appeal has been lodged to the court of appeal does not automatically render a judgment of t he High Court invalid. I am not c o n v i n c e d, t h e r e f o r e, t h at it would be proper for this court to o r d er stay of e x e c u t i on w h i ch is being carried out on the basis of a valid judgment of the High Court merely because an appeal has been lodged for leave to appeal against an o r d er granted in interlocutory p r o c e e d i n g s. It has, h o w e v e r, been pointed out t h at at t he t i me he attached and removed a p p l i c a n t 's property in e x e c u t i o n, the Deputy Sheriff's a t t e n t i on w as drawn to the fact t h at some of t he p r o p e r t y, t h us attached and r e m o v e d, belonged to certain people and not the a p p l i c a n t. That being s o, it seems to me t h at b e f o re he could sell the property by auction sale to satisfy t he j u d g m e nt for m a i n t e n a n ce o r d er agains t he a p p l i c a n t, the second Respondent would first h a ve to comply with the p r o v i s i o ns of Rule 51 of t he High Court Rules 1980 i.e. institute 3/ inter-pleader ........ -3- inter-pleader s u m m o n s / p r o c e e d i n gs a g a i n st t he c l a i m a n ts of t he attached p r o p e r t y, o t h e r w i se t h is a p p l i c a t i on is not granted in t e r ms of prayers (a) and (b) of t he notice of m o t i o n. It is worth m e n t i o n i ng t h at y e s t e r d ay w h en t he judgment was delivered in o p en court I m i s t a k e n ly said t he a p p l i c a t i on w as granted in t e r ms of p r a y er (a) and (b) of t he n o t i ce of m o t i o n. T h is m o r n i ng I t o ld t he A s s i s t a nt Registrar (Miss S e l l o) to call the t wo c o u n s e ls b e f o re me in o r d er to advise t h em of t he c o r r e c t i on I w i s h ed to m a ke in t he j u d g m e n t. Neither of t h em appeared b e f o re me and I p r o c e e d ed to m a ke t he necessary c o r r e c t i on so that t he d e c i s i on r e a d s: a p p l i c a t i on is "not g r a n t e d" instead of "granted" in t e r ms of prayers (a) and (b) of t he n o t i ce of m o t i o n. T h is being a f a m i ly d i s p u te I would not m a ke an o r d er as to c o s t s. B. K. MOLAI J U D GE 23rd F e b r u a r y, 1990. For A p p l i c a nt : M r. Pheko For R e s p o n d e nt : M r. M a q u t u.