Abubaker v Magistrate Quthing (C of A (CIV) 19 of 2015) [2016] LSCA 5 (29 April 2016)

Abubaker v Magistrate Quthing (C of A (CIV) 19 of 2015) [2016] LSCA 5 (29 April 2016)

Execution of the ejectment order was suspended by the noting of appeal and any purported execution during suspension was a nullity; rescission application does not suspend order unless court directs; execution against a party not named in the order is invalid.

Citation
[2016] LSCA 5
Parties
Appellant: Afzal Abubaker; Appellant: Messenger of Court - Quthing; Respondent: Magistrate Quthing; Respondent: Officer Commanding Police – Quthing; Respondent: Commissioner of Police; Respondent: Attorney General; Respondent: Thabang Lechela; Respondent: 'Makhafo Mohlekoa; Respondent: Mantsoe Matle Makhetha
Court
Court of Appeal
Jurisdiction
Lesotho
Judgment Date
29 April 2016
Case Number
C of A (CIV) 19 of 2015
Procedural Posture
Civil Appeal / Judgment
Outcome
Appeal against dismissal of main application dismissed; appeal against counter application succeeds in part.
Legal Topics
Execution of Judgments, Appeals, Rescission, Joinder, Possession
Source Language
English
Civil Procedure Property Law Execution of Judgments Appeals Rescission Joinder Possession

Case Brief

Summary, issues, holding and outcome

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Parties

Afzal Abubaker

Appellant

Messenger of Court - Quthing

Appellant

Magistrate Quthing

Respondent

Officer Commanding Police – Quthing

Respondent

Commissioner of Police

Respondent

Attorney General

Respondent

Thabang Lechela

Respondent

'Makhafo Mohlekoa

Respondent

Mantsoe Matle Makhetha

Respondent

Procedural Posture

Civil Appeal / Judgment

Legal Issues

  1. 1 Whether execution of an order subject to appeal is suspended pending outcome of appeal
  2. 2 Whether rescission application automatically suspends order sought to be rescinded
  3. 3 Whether execution against a party not named in the order is valid

Ratio Decidendi

Execution of the ejectment order was suspended by the noting of appeal and any purported execution during suspension was a nullity; rescission application does not suspend order unless court directs; execution against a party not named in the order is invalid.

Court Disposition

Appeal against dismissal of main application dismissed; appeal against counter application succeeds in part.

Orders

  • Appeal against dismissal of main application is dismissed.
  • Appeal against orders granted in respect of counter application succeeds in part; counter application granted except paragraph (a).