Standard Chartered Bank v Sekhonyana and Others (CIV\T 281 of 95) [1998] LSCA 101 (4 November 1998)

1 CIV\T\281\95 IN T HE HIGH C O U RT OF L E S O T HO In the matter of : T HE S T A N D A RD C H A R T E R ED B A NK Plaintiff vs E. R. S E K H O N Y A NA 1st Defendant ' M A L E R O T H O L I J O S E P H I NE S E K H O N Y A NA ' M A S E N A TE A G N ES M O P E LI 2nd Defendant 3rd Defendant R U L I NG ON A P P L I C A T I ON F OR A B S O L U T I ON F R OM T HE I N S T A N CE D e l i v e r ed by t he H o n. Mr Justice M L L e h o h la on the 4 th d ay of N o v e m b e r, 1 9 98 T he instant c a se w h i ch h as eventually led to t he p r e s e nt application for absolution f r om the instance, h as a l o ng history of delay. W i t h o ut alluding in detail to its handling by my other learned b r e t h r en J u d g es of this court a nd for p u r p o s es of a v o i d i ng prolixity I m ay o n ly indicate that the file cover reflects that the matter c a me before me as early as 11th September, 1 9 95 w h en the defendants, at the time represented by Mr B u ys of M e s s rs Du Preez Liebetrau and C o .; appeared seeking an order for withdrawal of an application for s u m m a ry Judgment lodged earlier by the plaintiff. This application for withdrawal w as granted on the s a me d ay to enable the defendants, as w as claimed for t h em by their legal representative Mr B u y s, to file relevant papers. In August 1 9 96 i.e. m o re than a year later the plaintiff obtained an order for costs against the defendants w ho w e re not successful in an application to discover lodged by the plaintiff. On 2 nd September, 1997 the matter w as set d o wn for hearing the m a in trial. Indeed the only witness for the Plaintiff P W1 Mr R a h l ao g a ve only his evidence-in- chief while the cross-examination of this witness w as reserved while the hearing of the matter w as postponed to enable Mr M p h a l a ne the current attorney for the defendants to prepare himself for the cross-examination of P W1 as Mr Mphalane had just shortly been briefed in place of Mr B u ys w ho w as no longer representing the defendants. T he matter w as set d o wn for resumption of its hearing exactly a year later i.e. 2 nd S e p t e m b e r, 1 9 98 w h e r e u p on it p r o c e e d ed until about m i d d ay w h e n, at the close of the plaintiffs case, the defence applied for an absolution f r om the instance. T he ruling on this application w as reserved until 2 8 th O c t o b e r, 1 9 98 but b e c a u se of breach in c o m m u n i c a t i o n, occasioned in part by the political turmoil that interrupted C o u rt business for w e e ks on e n d, the transcripts w h i ch I h ad a s k ed for, t h o u gh h a v i ng b e en f o r w a r d ed to the office of the Registrar by the plaintiffs instructing attorneys never reached my desk until too short a time r e m a i n ed b e t w e en my receipt of the substitute set of the transcripts a nd the date e a r - m a r k ed for delivery of this ruling. Accordingly a further delay h ad to be incurred w h en the delivery of this w as p o s t p o n ed for another w e ek to 4th N o v e m b e r, 1 9 9 8. In their invaluable w o r ks S u p e r i or C o u rt P r a c t i ce (Service 4 M 9 9 5) H J. E r a s m us ef al at B 1 - 2 92 o n w a r ds in reference to R u le 39 of the U n i f o rm R u l es of Court in S o u th Africa h a ve this to say c o n c e r n i ng applications for absolution f r om the instance at the close of the plaintiffs c a se : " W h en absolution f r om the instance is s o u g ht at the close of the plaintiffs case the test to be applied is n ot w h e t h er the e v i d e n ce established w h at w o u ld finally be required to be established, but w h e t h er there is e v i d e n ce u p on w h i ch a court, applying its m i nd reasonably to s u ch e v i d e n c e, could or m i g ht (not should, or o u g ht to) find for the plaintiff'. At p a ge 3 the plaintiff in p a r a g r a ph I requires of the defendants jointly a nd severally the o ne paying the others to be absolved, p a y m e nt of the s um of Ml 8 47 122-94. In V o l u me II at p a ge 2 12 appears a B a nk Statement on w h i ch is reflected the last figure in the a m o u nt of Ml 8 47 122-44 representing the condition of the defendants' account as at the date 23rd January, 1995. T he s u m m o ns s e e ms to h a ve been based on the condition of the account as at that date. This should be so because the s a me a m o u nt appears as the opening a m o u nt for the following m o n th of February that year. T he last figure as at 23-2-95 s h o ws a considerably higher s um of Ml 8 75 4 0 9 - 24 by w h i ch the defendants' account with the plaintiff w as over-drawn. Mr Mphalane 's strong argument is based on the difference of 50 lisente appearing b e t w e en the s um reflected in the s u m m o ns a nd the a m o u nt appearing in the statement for January constituting w h at ought in effect to have f o r m ed the basis of the s u m m o n s. In the light of the evidence heard so far and the principle the a b o ve authorities strongly urge should be applied, it s e e ms to me that saying ditto to the defendants' quest w o u ld go against the requirement that in applications of this nature the court should concern itself with whether there is evidence u p on w h i ch it could or might (not should or o u g ht to) find for the plaintiff. I find solace in my v i ew of the matter f r om a further statement of the a b o ve authorities to the effect that " In deciding w h e t h er absolution s h o u ld be granted at the close of the plaintiff's case, it m u st be a s s u m ed that in the a b s e n ce of v e ry special considerations, s u ch as the inherent unacceptability of the e v i d e n ce a d d u c e d, the e v i d e n ce is true". W h at is plain a nd clear in P W 1 's e v i d e n ce is that the 1st d e f e n d a nt in t e r ms of an a g r e e m e nt with the plaintiff w as granted overdraft facilities a nd m o n e ys w e re a d v a n c ed to h i m. All these m o n e ys a d v a n c ed to h im on overdraft carried interest. B e c a u se it s e e ms the 1st d e f e n d a nt w as given favourable treatment by the plaintiff, he e x c e e d ed the limit of his overdraft. It d o es not s e em to me that the 1st d e f e n d a nt w as not a w a re of this state of affairs. In substantiating the a b o ve v i ew I should presently refer to the "Confidential" letter dated 2 9 th N o v e m b e r, 1 9 94 a d d r e s s ed to the plaintiff with special attention of P W1 being d r a wn to that letter at p a ge 1 03 of the record. It r e a d s: "Att. Mr S. R a h l ao Sir, R e: O v e r d u e - A c c o u n t - E . R. S e k h o n y a na I h a ve r e c e i v ed several letters f r om y ou d r a w i ng me to the gravity of the status of a b o v e m e n t i o n ed a c c o u n t. I am a w a re that I h a ve in the past f ew m o n t hs p r o m i s ed y ou a partial injection of substantive f u n ds t o w a r ds a situation w h e r e by a full settlement c o u ld be realised. I am a w a re that other a t t e m p ts shall o n ly partially m e et my indebtedness to the B a n k, a nd it is the latter situation w h i ch h as led me to a t t e m pt s e c u r i ng o v e r s e as f u n ds to c o v er the a c c o u n t. T h e re is yet no basis to a b a n d on this a t t e m pt a nd I am frantically w o r k i ng for a settlement at the latest by e nd J a n u a r y \ F e b r u a ry 1 9 9 5. of O n ce a g a in p l e a se b e ar w i th me a nd I sincerely a p o l o g i se for w h at m ay s e em to h a ve b e en lack of taking y o ur w a r n i n gs seriously. I t a ke t h em v e ry seriously i n d e e d. Sincerely S i g n e d: E . R. S e k h o n y a n a" On the basis of the s u b s t a n ce of the 1st d e f e n d a n t 's letter referred to a b o ve I am satisfied that he w as a w a re he h ad e x c e e d ed his overdraft limit. T h us if, despite the fact that he h ad r e a c h ed b e y o nd his overdraft limit he k e pt on writing further c h e q u es w h i ch the B a nk m e t, he c a n n ot be h e a rd to s ay that the B a nk is a c c o u n t a b le for the financial e m b a r r a s s m e nt he f o u nd h i m s e lf sinking further a nd further into. Truly s p e a k i ng the B a nk didn't h a ve to give h im facilities in e x c e ss of his overdraft limit but if he w e nt o v er it, a nd the B a nk a l l o w ed h im that, it o n ly s h o ws that the B a nk w as giving h im an i n d u l g e n c e. T h us I am n ot p e r s u a d ed that there w o u ld have been any relevance regarding w h at the limit w as at a ny given date. A n o t h er vital factor to bear in m i nd w h en considering the question of an absolution at the e nd of the plaintiff's case appears at B 1 - 2 92 of the w o r ks of E r a s m us et al as follows : "Questions of credibility should not normally be investigated at this stage of the proceedings, except w h e re the witnesses h a ve palpably b r o k en d o wn a nd w h e re it is clear that w h at they h a ve stated is not true". I do not recall P W1 breaking d o wn on a material or important point of relevance in the instant proceeding. E v en at the cost of being repetitive I find it important to highlight the importance attached by different authorities to absolution at the e nd of the plaintiffs case. For instance at paragraph 3 14 of T he L aw of S o u th Africa V o l u me 3 part I by W . A. Joubert et al reference is m a de to the fact that in terms of High C o u rt Rules R u le 3 9 ( 1 0) " At the close of the case for the plaintiff the defendant m ay apply for absolution from the instance absolution from the instance If has b e en refused a nd the (and that) m ay briefly defendant h as not closed his case, the d e f e n d a nt outline the facts intended to be p r o v e d, a nd the d e f e n d a nt m ay then p r o c e ed to the p r o of t h e r e o f. T he learned authors p r o c e ed to re-iterate the test to w h i ch E r a s m us et al referred earlier a nd go a step further to indicate that A n o t h er a p p r o a ch is to enquire w h e t h er the plaintiff h as " m a de out a p r i ma facie case. T he application is akin to a nd stands on very m u ch the s a me footing as an application for the discharge of an a c c u s ed at the e nd of the state c a se in a C r i m i n al trial". I agree entirely w i th this c o m p a r i s o n. T he learned authors go further to indicate that "the C o u rt h as a discretion to grant or refuse absolution f r om the instance". I m ay just a dd that the exercise of this discretion h as to be judicial. In this is implied that the exercise s h o u ld be u n d e r t a k en w i th appreciation a nd k n o w l e d ge of w h at is right a c c o r d i ng to l a w. Of vital i m p o r t a n ce are the r e m a r ks of these authors to the effect that "In the exercise of this discretion it ( m e a n i ng the C o u r t) will not n o r m a l ly h a ve regard to the credibility of witnesses unless the plaintiffs witnesses are so obviously lying or h a ve so palpably b r o k en d o wn that no reasonable m an could place reliance u p on t h e m. As I pointed out earlier, in my hearing of this matter, I w as far f r om f o r m i ng e v en the r e m o t e st impression that P W1 w as obviously lying or h ad b r o k en d o wn so p a l p a b ly as to r e n d er his e v i d e n ce irretrievable in t he e y es of a r e a s o n a b le m a n. A p p l y i ng the a b o ve principles to t he facts of t he c a se w o u ld m a ke it u n n e c e s s a ry to c o n s i d er in detail other points raised in m o t i v a t i ng this application. I n e ed p ut the m a t t er in perspective by r e f e r e n ce to t he plaintiffs declaration a nd the d e f e n d a n t s' plea. P a r a g r a ph 3 p a ge 7 of t he declaration sets o ut that in t e r ms of an oral a g r e e m e nt entered into b e t w e en the plaintiff a nd First D e f e n d a nt at M a s e r u, a nd at first defendant's special instance a n d \ or r e q u e s t, plaintiff lent a nd a d v a n c ed m o n ey to D e f e n d a nt f r om t i me to t i me on overdraft facility, w h i ch oral a g r e e m e nt also p r o v i d ed for the p a y m e nt of said m o n ey on d e m a n d. In r e s p o n se to this declaration the p l ea e n t e r ed on b e h a lf of 1st, 2 nd a nd 3 rd d e f e n d a n ts r e a ds at p a ge 66 " AD P A R A G R A P HS 1,2 A ND 3 T H E R E O F: T he contents of these paragraphs are admitted". In p a r a g r a ph 5 t he plaintiff states that " On the 9th D e c e m b e r, 1 9 9 4, a nd again on the 31st J a n u a r y, 1 9 9 5, a nd at M a s e ru in the K i n g d om of L e s o t h o, Plaintiff d e m a n d ed in writing f r om First D e f e n d a n t, p a y m e nt of the s um of Ml 8 47 1 2 2 - 9 4, b e i ng m o n i es a d v a n c ed in t e r ms of a f o r e m e n t i o n ed oral a g r e e m e n t, b ut notwithstanding s u ch d e m a n d, first D e f e n d a nt h as failed a n d \ or r e f u s ed and\or neglected to p ay said full a m o u nt or part t h e r e o f. In r e s p o n se it is reflected on b e h a lf of the d e f e n d a n ts at p a ge 67 that " T he D e f e n d a n ts d e ny a nd p ut the Plaintiff to the p r o of thereof. T he D e f e n d a n ts specifically d e ny that the I st D e f e n d a nt is i n d e b t ed to the Plaintiff in the a m o u nt of Ml 8 47 1 2 2 - 94 or a ny other a m o u nt a nd p ut the Plaintiff to the p r o of t h e r e o f. In p a r a g r a ph 6 the plaintiff states that " On the 18th J u n e, 1 9 9 3, a nd as continuing c o v e r i ng security for the i n d e b t e d n e ss a nd obligations of First D e f e n d a nt as principal debtor, S e c o nd D e f e n d a nt as a surety a nd co-principal d e b t o r, s e c u r ed p a y m e nt of aforesaid i n d e b t e d n e ss of First D e f e n d a nt by w ay of registration of a continuing covering D e ed of H y p o t h e c a t i on N o . 2 3 7 24 in favour of Plaintiff in the office of the D e e ds Registry, M a s e r u, u n d er the D e e ds Registry A ct of 1 9 6 7. A c o py of s u ch c o n t i n u i ng c o v e r i ng D e ed of H y p o t h e c a t i on is a n n e x ed hereto, m a r k ed ' A ' ". In r e s p o n se the d e f e n d a n ts s ay Ad P a r as 6 t h r o u gh 14 " T he D e f e n d a n ts a d m it that M o r t g a ge B o n ds w e re registered o v er t he property reflected in the D e c l a r a t i on a nd the D e ed of S u r e t y s h ip w as s i g n ed by the 3 rd D e f e n d a nt b ut the D e f e n d a n ts p l e ad that the 1st D e f e n d a nt denies indebtedness t o w a r ds the Plaintiff, the Plaintiff is n ot entitled to reply (sic) on the security set o ut in the M o r t g a ge B o nd or in regard to the Suretyship". T he plaintiff h a v i ng stated that the three d e f e n d a n ts h a ve failed to p ay their i n d e b t e d n e ss to the plaintiff the latter c l a i ms against t h em jointly a nd severally p a y m e nt of the s um of Ml 8 47 1 2 2 - 94 plus interest at 1 8 . 5% calculable f r om 9th D e c e m b e r, 1 9 94 to d a te of p a y m e n t. T he plaintiff p r a ys for an o r d er declaring the f o l l o w i ng properties especially m o r t g a g ed u n d er t he aforesaid D e e ds of H y p o t h e c a t i on executable. T h e se are Plot N o. 1 7 6 8 4 - 0 09 situated at L o w er M o y e n i, Q u t h i ng U r b an A r e a . .. h e ld u n d er D e ed T r a n s f er N o . 2 2 8 8 1, as registered on 15th N o v e m b e r, 1 9 9 1. N e xt Plot N o. 1 2 2 8 1 - 0 08 situated at M a s e ru W e s t, M a s e ru U r b an A r ea h e ld u n d er lease N o. 1 2 2 8 1 - 0 0 8, as registered on 2 9 th J u n e, 1 9 8 1. As stated earlier the a b o ve scenario is o n ly cited in this ruling to p r o v i de b a c k g r o u nd relevant to the context in w h i ch the application for absolution h as b e en m o v e d. A l t h o u gh E r a s m us et al point o ut at B 1 - 2 93 that in a c a se w i th multiple defendants as in the instant o ne the a p p r o a ch is s o m e h ow different in the s e n se that w h e re there is o n ly o ne d e f e n d a nt the inference is that at the stage w h en plaintiff h as c l o s ed its c a s e, the court h as h e a rd all the e v i d e n ce w h i ch is available against the defendant, thus a ny further e v i d e n ce that w o u ld be f o r t h c o m i ng if the c a se c o n t i n u ed w o u ld be likely to operate o n ly to the d e t r i m e nt of the plaintiff; a nd that b e i ng so it is considered u n n e c e s s a ry in the interests of justice to a l l ow the c a se to c o n t i n ue a ny longer if, after the plaintiff h as c l o s ed its c a s e, there is no p r i ma facie c a se against the d e f e n d a n t; h o w e v er w h e re the plaintiff h as cited t wo or m o re d e f e n d a n t s, e a ch of t he d e f e n d a n ts m i g ht h a ve a c c e ss to e v i d e n ce a d v e r se to the o ne or other d e f e n d a n t. B ut in the instant c a se since d e f e n d a n ts 2 a nd 3 h a ve p i n n ed their c o l o u rs to the 1st d e f e n d a n t 's m a st t h ey h a ve virtually r e d u c ed t he n u m b er of the d e f e n d a n ts to o n e, n a m e ly the I st d e f e n d a nt in that t h ey said " T he defendants a d m it that the b o n ds w e re registered a nd that the d e ed of suretyship w as s i g n ed b ut the d e f e n d a n ts p l e a d, as the first d e f e n d a nt d e n i es i n d e b t e d n e ss t o w a r ds t he plaintiff." Plainly t h ey rely on the 1st d e f e n d a n t 's denial. T h us the distinction a nd the attendant caution a d h e r i ng in r e s p e ct of multiple d e f e n d a n ts falls a w a y. It is in this c o n t e xt that it b e c o m es i m p o r t a nt that the C o u rt s h o u ld t a ke into a c c o u nt "that w h e re the plaintiff h as first a d d u c ed e v i d e n ce b e c a u se the b u r d en of p r o v i ng s o me of the issues w as on h i m, b ut the b u r d en of p r o v i ng other issues w as on the d e f e n d a n t" absolution f r om the instance c a n n ot be d e c r e ed at the e nd of the plaintiff's c a s e. T h is b e c o m es e v en m o re relevant in the light of the fact that the b o n ds a nd s u r e t y s h ip are c o m m on c a u se in t e r ms of the p l e a d i n gs referred to a b o v e. F u r t h e r m o re P W 1 's letters written to the 1st d e f e n d a nt are n ot p l a c ed in dispute. T he only issue regarding t h em w as h o w, a c c o r d i ng to the defendant's attorney, P W1 c o u ld p r o ve the 1st defendant got t h e m. N e e d l e ss to s ay e v i d e n ce of p o s t a ge to the addressee is held to be sufficient p r o of of receipt of s u ch p o s t a ge by the addressee. B e c a u se the version of the 1st d e f e n d a nt w as not p ut to P W1 c o n c e r n i ng w h a t, in contrast to P W 1 's evidence, he claims to be rather the a m o u nt o w e d, given that there w as no dispute in the statements, a nd that in a ny c a se a c c o r d i ng to P W 1 's evidence, they w e re delivered in the n o r m al w ay the C o u rt w o u ld do well to stand p o i s ed to hear w h at the 1st defendant is g o i ng to say. T h at is only natural a nd therefore fair; coupled with the fact that it w as n e v er s u g g e s t ed to P W1 that the 1st defendant didn't write various letters in w h i ch he w as b e g g i ng for time a nd further a nd further indulgence as his d e bt swelled like a c u c u m b e r. I h a ve h ad regard to C. Of A ( C I V) N o . 4 \ 98 Phori vs Elna Duro r/a J& e Enterprises (unreported) a nd h a ve discovered that the case w as o ne of a S u m m a ry J u d g m e nt in respect of w h i ch by virtue of its peculiarity as s u ch the learned B r o w de J A. very fittingly said at p.7 : " An application for S u m m a ry J u d g m e nt is an extraordinary r e m e dy since it enables a Plaintiff to obtain j u d g m e nt against a D e f e n d a nt without a trial despite the D e f e n d a nt h a v i ng entered an a p p e a r a n ce to defend. It is for this reason that Courts will be reluctant to refuse leave to defend w h e re the transactions b e t w e en the parties are c o m p l i c a t ed a nd the q u a n t um of the Plaintiffs claim is not so clear as to be readily ascertainable. A c c o r d i n g ly C o u r ts h a ve w i d e ly a nd consistently held that the affidavit of the Plaintiff m ay only contain those matters w h i ch are expressly provided for in the R u le of C o u rt w h i ch deals w i th S u m m a ry J u d g m e n t ". In the instant c a se the C o u rt is not dealing w i th cold, rigid a nd inflexible affidavits w h i ch c a n n ot be c r o s s - e x a m i n ed a nd therefore w h i ch call for strict application of the express provisions of a particular R u l e. H e re the C o u rt is dealing with oral e v i d e n ce w h e re issues are ventilated a nd witnesses are subject to cross- e x a m i n a t i on w h i ch s h o u ld e n a b le the C o u rt to d e c i de w h at w e i g ht to place on w h a t e v er discrepancies in, qualifications to a nd retractions f r om statements w h i ch o c c ur during that process. T he unreported c a se I w as referred to i.e. C I V \ T \ 5 8 6 \ 85 B a r c l a ys Bank vs Khoboko d o es not a d v a n ce the defendants' application o ne iota b e c a u se like Phori a b o v e, t h o u gh it dealt w i th s o m e t h i ng slightly different, n a m e ly provisional s e n t e n c e, it is nonetheless in the s a me category in that it w as b a s ed on inflexible affidavits as against oral e v i d e n ce w h e re the truth ultimately c o m es to surface t h r o u gh the age-old a nd d e p e n d a b le process of cross-examination w h i c h, a m o ng others, has the merit of enabling the C o u rt of first instance to o b s e r ve a nd study the d e m e a n o ur of witnesses giving oral e v i d e n ce - an a d v a n t a ge c o m p l e t e ly lacking in e v i d e n ce on affidavits. In fact in the light of e v i d e n ce a d d u c ed on behalf of the plaintiff I derive a fair a m o u nt of c o n f i d e n ce a nd p e r s u a s i on f r om t he s t a t e m e nt of J o u b e rt et al to which deserved merit is to be ascribed that " T he C o u rt m ay also h a ve r e g a rd to t he possibility that t he plaintiffs c a se m ay be s t r e n g t h e n ed by e v i d e n ce e m e r g i ng in t he d e f e n d a n t 's c a s e ". A n o t h er criticism levelled at the plaintiffs c a u se of a c t i on by l e a r n ed c o u n s el for t he d e f e n d a n ts is that t he c l a i ms to h a ve t he properties e x e c u t a b le a re n ot c o u c h ed in the alternative. T he e s s e n ce a nd m e r it of this s u b m i s s i on s i m p ly e s c a pe me in the light of the fact that b e c a u se the 2 nd d e f e n d a nt h as b o u nd herself as surety a nd co-principal d e b t or in the first b o nd w h i ch is c o n t i n u i ng c o v e r i ng b o n d, t he plaintiff is at large to e x e c u te on the property d e c l a r ed e x e c u t a b l e. T he w h o le p o i nt of m o v i ng C o u rt to d e c l a re p r o p e r ty e x e c u t a b le is to e n a b le t he plaintiff to satisfy its claim against property so declared unless the surety a nd co-principal d e b t or p a ys the a m o u nt reflected on the writ on presentation thereof. It will be o n ly if the surety a nd co-principal d e b t or fails to p ay that e x e c u t i on will t a ke p l a c e. A plaintiff will n o r m a l ly s e ek an o r d er permitting e x e c u t i on against p r o p e r ty in o r d er to a v o id h a v i ng first to e x e c u te against m o v a b le property. I n d e ed w h e re there is a b o nd this is standard on all a c c o u n t s. F u r t h e r m o re i n a s m u ch as the 3 rd d e f e n d a nt h as b o u nd herself as surety a nd co-principal d e b t or (see p a ge 3 2) it is p e r m i s s i b le to e x c u ss all sureties a nd co-principal d e b t o rs as o ne e x c u s s es the principal debtor. While on this point it might be fruitful to make a brief reference to the principle of Excussion in its original form. The full text of the principle is called Beneficium Ordinis Seu Excussionis. This principle has to do with benefit of order or excussion and refers to the right of defence given to a surety, when called upon for payment by the Creditor, whereby he claims that the principal debtor shall first be excussed. However this benefit may be renounced tacitly or specially. Furthermore it cannot be pleaded after joinder of issue. It calls for emphasis to state that sureties are not entitled to plead non-excussion of the principal debtor. See Moosa vs Mahomed T PD 271 where after the defendant had denied in his plea that there was any contract of money loan at all between him and the plaintiff, alleging that the document placed in proof of the debt on the loan contract was by way of a jest only, the Court had found that it had been given by the defendant in pursuance of an undertaking of suretyship by the defendant, the plaintiff at a late stage amended his pleading by alleging facts showing that the transaction was in fact one of suretyship. The defendant sought to amend his plea by adding one of non-excussion. The Court, properly held that the defendant had had an opportunity of pleading the true facts in reply to plaintiffs original declaration, and should not be permitted at this stage to raise a defence which normally should be taken in initio litis. Finally I m ay just w a rn that an application for a b s o l u t i on or for a ny inter- l o c u t o ry relief s h o u ld n ot be u s ed as a m e a ns of s e c u r i ng the p o s t p o n e m e nt of an evil d ay F or the a b o ve r e a s o ns the C o u rt declined to grant absolution f r om the instance w i th costs. A nd it is so o r d e r e d. J U D GE 4th N o v e m b e r, 1 9 98 F or Plaintiff: A d v. H o f r m an For D e f e n d a n ts : Mr M p h a l a ne