Molise Transport & Plant Hire & Another v Mokoma (CIV/T 23; C of A (CIV)) [2017] LSCA 9 (12 May 2017)

IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU In the matter between C OF A (CIV) 23/2015 CIV/T/153/2016 MOLISE TRANSPORT AND PLANT HIRE 1ST APPELLANT KATISO MOKHAHLI 2NDAPPELLANT And LUCY NYAMATSANE MOKOMA DEFENDANT CORAM: LOUW AJA MUSONDA AJA MAKARA AJA (ex officio) HEARD: 26 APRIL, 2017 DELIVERED: 12 MAY, 2017 JUDGMENT SUMMARY The Appellants applied for a postponement from the bar after it emerged that they have committed breaches of the mandatory Court of Appeal Rules commencing with their failure to lodge the record of the trial proceedings within a mandatory period of three months. Resultantly, by operation of the applicable Rule, the appeal had lapsed. To augment that foundational mistake, they did not utilize the Rules in-built remedial avenues. These constitute of securing of the consent of the Respondent to have the filing duration extended or filling of a formal application accompanied with reasons, to consider that indulgence; Bringing before the Court a formal application with an explanation for a condonation of any breach. On the other hand, they had offended the Rule requiring them to make arrangement with the Registrar for the security of costs on appeal before filing the record. This had not been complied with on the day scheduled for the hearing which was suddenly interrupted by the application launched from the bar for postponement. The move was vigorously opposed by the Respondent for the stated none compliance with the applicable Rules. Held: 1. The Appellants’ none compliance with the Rules renders the appeal to be struck off the roll to maintain professional standards and ascertain progress towards finalization of cases. 2. Appellants to pay costs of the appeal. MAKARA AJA [1] The Appellants have lodged an appeal against the decision of the High Court in which they were individually and collectively ordered to pay the Respondent damages in the amount of M49, 916, 60 together with 18.5% and costs. This was premised upon the finding of the Trial Court that the Respondent had on the balance of probabilities, proven her case for damages against the duo. [2] A foundation of the appeal is that the Learned Judge in the Court of first instance had erred and misdirected herself in that she: 1. Despite the fact that quantum relating to costs of repairs was disputed, found that failure for the Respondent to provide proof of repair, was irrelevant; 2. Did not follow the law and principles governing motor vehicle collision in awarding the Respondent damages for reasonable costs of repairs in the amount of M47, 116.60 when there was clear evidence and it was not disputed that those costs of repairs, should not have been granted and it would have been economical to repair that said vehicle since the cost of its repair would exceed its fair market value - hence it should have been written off; 3. Granted the Respondent M2, 800.00 for expenses on transport yet there was no evidence before Court to substantiate this claim, how much she paid, to whom and for how long; 4. Concluded that the 1st Appellant is vicariously liable for the cause of the accident yet the Respondent failed to prove on the balance of probabilities that the Appellants were in any way negligent while it is clear that the cause of accident could not be established - hence why even the investigator did not prosecute the Appellants and left it up to them to negotiate an amicable settlement. [3] The appeal is opposed on both merits and procedural grounds. The latter is premised on the contentions that: 1. The appeal has elapsed since it was lodged against the judgment of the High Court sometime in July 2015. The 1st and 2nd Respondents failed to file the record of appeal within three (3) months in terms of the Court of Appeal Rules 2006, thereby resulting in the lapsing of the appeal in accordance with Rule 5 (3) of the same Rules. They have further failed to lodge an application for its reinstatement; 2. The Appellants have further failed to lodge a condonation application for the late filing of the record in terms of Rule 15 (1) as they had already filed the record on the 4th August 2016 neither has the Respondent consented to the extension of time limit for the late lodging of the record in terms of Rule 5 (2) of the Court of Appeal Rules, 2006; 3. The Appellants have failed to file security for costs as contemplated by rule 8 (1) of the Court of Appeal Rules 2006 and there is no condonation application for this breach in terms of Rule 15 (1); 4. The Appellants have dismally failed to lodge condonation application for the breach of the Court of Appeal Rules despite several warnings by this Honourable Court on the need to apply for condonation whenever it is realized that the Rules of this Honourable Court have been breached; 5. Failure so to lodge a condonation application in this regard necessitates the striking-off the appeal from the roll. [4] In support of the proposition that the appeal be struck off for the tabulated procedural improprieties, reference was made to the cases in Neo Adreas Motake v Bereng Moqhoai 1 and Mohapi v Sekasha 2 . What is, however, found lacking and unhelpful to the Court is that 1 C of A (CIV) No. 5 / 2009 2 C of A (CIV) No. 37 / 2014 the cited cases through which the Applicants seek to persuade the Court to take the proposed measure, has been done without any reference to the applicable facts and the law therein, for a precise guidance of the Court and its consideration. Counsel should not refer this Court to a text in a manner analogous to the way a law school professor assigns students to case law or legal literature. This is not healthy even to the other Counsel to precisely react to the argument. Perhaps, there should be an improvement on the Rules governing the content and the form of the Heads of Argument to be submitted to the Court. The Respondent’s Case Background [5] Her case as the Plaintiff in the Court aquo is comprehensibly stated in her declaration and reiterated in the judgment against which the appeal has been taken. Both documents reveal that her claim was founded upon an accident in which her Honda Balade car bearing registered numbers D 8886 got involved with the 1st Appellant’s truck registered A8180. The car was at the material time driven by the Respondent herself while the truck was driven by the 2ndAppellant. The latter was acting within the scope of his employment as a driver of the same truck. The Appellants’ Case Background [6] Their case as the Defendants in the Trial Court proceeded from the onset, denial by the 2nd Appellant that he is liable for the damages occasioned by the collision. He specifically in his plea, maintained that the truck he was driving never encountered a collision with the Respondent’s car. His version was that the truck he was driving was stationary at the pedestrian crossing when suddenly, the Respondent fast drove her car from behind and squeezed it between the truck and a vehicle registered A8325. Resultantly, she lost control of it and then crashed with that vehicle together with the one bearing registration numbers AA775. He attributed the cause of the accident to her failure to have kept a proper look out. In the same vein, he adamantly denied that the truck was involved in the accident and that there was a 4 x 4 van in front of it which slowed down and caused him to swerve to the outer lane to avoid a collision with same. [7] After the Respondent closed her case, the Appellants reacted by applying for absolution from the incidence. In motivating the application they charged that the Respondent has advanced inadequate evidence which has not proven her claim that the accident was caused by a negligent driving of the 2nd Appellant. To illustrate the point, they pointed out that hitherto there are no criminal proceedings instituted against the man for negligent driving. [8] Appreciably, the denial by the 2nd Appellant that the truck was involved in the accident with the Respondent’s car and thus, rendering him and the 1st Appellant liable for the consequent damages, is indicative of the reason the latter denies vicarious liability for same. [9] The Appellants further justified their application for absolution upon the reasoning that the Respondent had not proven her case on damages she incurred when repairing her car. They specifically charged that she did not adduce receipts to support her case on the subject. Besides, they contested the quantum of the damages relating to its repair by raising an objection that it exceeds the current market value of the car and, therefore, that it would be uneconomical to repair it. Instead, they suggested that it ought to have been written off. [10] It should suffice to be recorded that eventually, the Learned Judge who presided over the trial, dismissed the application for lack of merit and foundation in law. In that regard, she solicited for guidance from a postulation of the law in Lesotho National General Insurance v Bushman3 and Zaymes v Facos & Co. 4. Here it was stated that for an application of absolution from the incidence to succeed, the evidence led must be contradictory or palpably false that no reasonable man could put any reliance on it. She then determined that this was not the case with the evidence led by the Respondent and that it was of a nature that the Appellants ought to have responded to it since the Court might on its prima facie presentation find for her. Deliberations on Appeal 3 CIV/T/255/1996 4 1940 CPD 477 [11] At the commencement of the hearing of the appeal, Adv. Molapo for the Appellants gave the Court an impression that there was a consensus reached between him and Adv. Lesaoana for the Respondent that the case be postponed. He attributed their attitude to what he termed their common realization that the Appellants have hitherto due to the continuing circumstances beyond their control, failed to file a full record of High Court proceedings within three months as prescribed under Rule 5 (1). [12] The Counsel then hastily explained that the commitment of the Appellants to have long filed a complete record of the proceedings within three months continues to be frustrated by a report by the Registrar that the tapes used for their recording are missing. To demonstrate the bona fides of the Appellants, they informed the Court that the account by the Registrar about the tapes, was sequel to a letter they had earlier addressed to him over the matter and the Counsel for the Respondent was made aware of it. [13] Against the backdrop of the narrated representations, the Appellants applied for a postponement of the case to enable both counsel to reconstruct the record by reconciling their manuscript notations of the proceedings while simultaneously expressing optimism that the tapes could in due course be recovered. In the meanwhile, the Court interjected by raising a concern over the fact that the postponement was being applied for from the bar without any formal application and evidentially supported reasons for its consideration. This was complemented with emphasis that since the Trial Judge determined the merits, it would be indispensable that a full record or its agreed reconstructed version be filed. [14] In motivating the application for postponement, the Counsel for the Appellants asked for a double indulgence by proposing that the Court may make an order which ascertains that the dispensation sought for, would not occasion further delay towards the hearing of the case or prejudice the Respondent. In that perception, he suggested that the postponement order would be ideal if it puts parties to terms including the expedient reconstruction of the record of proceedings. In the alternative, he asked that for the sake of ensuring progress in few days time, the appeal could be re scheduled for hearing within the current sitting of the Court. This was expressed with the optimism that in the meanwhile, there would be a dedication to sooner provide the Court with the full record or its mutually agreed version. [15] The representations made for the Appellants on postponement were intended to give the Court an impression that they had not wilfully delayed to prepare and file the record within the time provided for in the Rules. The underlining message was that this was authored by the logistical challenges which fall within the preserve of the Registrar for solution. Thus, in their view, Farlam AJP, had in May 2016, while sitting as a single Judge in the Dismissal Roll Session, postponed the hearing to the October 2016 sitting in appreciation of the current insurmountable predicament militating against their timeous filing of the record. [16] The Appellants further implied that Farlam AJP had, despite want of their application for condonation of their late filing of the record, logically sanctioned it through his postponement of the case on the basis of the narrated reality. Nevertheless, the Counsel fairly conceded that the Acting Judge President could not with great respect to him, make an order binding another sitting of this Court over the matter and that as such this Court is at large to make its own determination on postponement. [17] In conclusion, it was submitted for the Appellants that they have made a case for their case to remain in the roll pending their filing of the complete record from the tapes or through the one reconstructed from the manuscript notes of the counsel for the parties. [18] Adv. Lesaoana for the Respondent intriguingly and rather paradoxically kick started her response by denying that there was never an agreement that the hearing be postponed upon the reasons advanced by her counterpart. On the contrary, she surmised that there could have been a misunderstanding in the course of the discussion on the subject of postponement. In that regard, she even specifically refuted the statement that she was ever a party to any prior sitting where postponement was addressed correspondingly with the condonation for late filing of the record. [19] To demonstrate that she never subscribed to either or both of the two indulgences under consideration, she referred the Court to the Respondent’s Heads of Arguments filed on the 25th August 2016 in which the Appellants’ intended late filling was contested. Moreover, she rejected an indication that she saw a copy of the letter which the Counsel for the Appellants had written to the Registrar concerning the tapes used for the recording of the trial proceedings. [20] She later developed her reaction by straightening up the record that she is resisting the postponement since it would be unfair to the Respondent who got judgment in her favour in June 2015. On that note, she charged that the Appellants were employing delaying tactics to frustrate realization of the judgment. In support of the assertion, it was canvassed that despite their insistence on postponement for them to make a late filing of the record of proceedings, they have not satisfied the Rule 8 (1) mandatory requirement for ensuring security of the Respondent’s costs on appeal. It was then submitted that the omission per se was fatal to the case and that this justifies a decision for its striking off from the roll. A Survey of the Determinative Rules Matrix [21] The exploration is imperative for a presentation of the applicable Rules’ matrix for a ruling on the emergent question regarding whether the appeal should be maintained in the roll by simply postponing it to enable the late filing of the complete record or struck it off. [22] Rule 5 (1) is of key significance. In paraphrased terms, it details the appellant who has in every appeal filed a Notice of Appeal or a Certificate of the Judge of the High Court, to lodge with the Registrar within three months, seven copies of the record of the proceedings of the High Court..... Rule 5 (2) allows for a dispensation to have the period extended by consent of the parties. Rule 5 (3) complements the scheme by giving a final direction that if the appellant fails to lodge the record within the prescribed three months, or the extended period, the appeal shall lapse.(Highlighted by Court). [23] Rule 8 appears under a Sub heading, “Security for costs of appeal”. This denotes the devotion of the provisions and their intention there under. It stands: (1) where the judgment appealed from in a civil matter has not been carried into execution by the respondent, the appellant shall, before lodging with the Registrar copies of the record, enter into security to the satisfaction of the Registrar for the respondent’s costs of the appeal. (2) ..... ..... ..... [24] Rule 15 delineates its scope and purpose under the Sub heading, “Effect of Breach of Rules”. It bears an over arching direction on the consequences of a contravention of any Rule. In that respect, Rule 15 (1) states a principle position that a breach of the provisions of the Rules may occasion the appeal to be struck off. This is, however, diluted by Rule 15 (2) which gives the Court discretionary power to condone any breach on the application of the Appellant. Application of the Relevant Rules to the Facts [25] It transpires from the judgement of the High Court and the papers before this Court that the Appellants did not, contrary to Rule 5 (1), file the record within three months. To illustrate the point, the appeal was lodged in July 2015 and the deadline for compliance with the Rule was sometime in October 2015. On the 26th April 2017 when they made the application from the bar, they still had not filed it. It is clear from the papers and the counter explanation by the Counsel for the Respondent that they had also not approached the Respondents for the extension of the prescribed period by consent in line with a dispensation under Rule 5 (2). [26] The Appellants had not complied with Rule 5 (1) or utilized Rule 5 (2) to seek for the Court’s discretionary extension of the period for the filling. In addition they failed to use Rule 15 (2) which permits them to apply to the Court on Notice of Motion for its discretionary condonation of any breach of the Rules. Furthermore, they have not alternatively solicited the consent of the Respondent in support of their application for condonation in terms of Rule 15 (4). [27] Ultimately, the failure of the Appellants to have filed the record within the prescribed duration has triggered the application of Rule 5 (3). The Rule provides that if the Appellant fails to lodge the record within three months or within the extended period, the appeal shall lapse. (Court’s emphasis). Now that the Appellants have not lodged the record within the three months or extended the period in terms of Rule 5 (2), the appeal is found to have lapsed. So, by necessary implication there had to be a formal application for its reinstatement. [28] Since the Appellants did not contrary to the mandatory direction under Rule 8 (1), provide for the security of the possible costs for the Respondent, it follows that there is merit in the submission made by the Respondent that the omission is fatal to the appeal. Decision [29] The analysis which this Court assigned to the applicable Rules and its application to the facts, leads to a final conclusion that the Appellants breached the Rules and did not resort to any of the inbuilt remedial avenues in the Rules. A synopsis of them starts with the one which provides for application for the extension of the time for filing of the record, condonation of a breach of any Rule and securing of a consent of the Respondent for any of the indulgence they may sought for. Independent of these breaches which are rooted in the failure to lodge the record within the prescribed duration, the Appellants committed a fatal mistake by failing to approach the Registrar to settle the security of costs. [30] There is case law precedent of this Court which details guidance on the destiny of the appeal in which the Appellant has transgressed the Rules. Amongst the precedents of that is the case of Maki Mohapi v Lipuo Lydia Sekhasha5. Here the appellant had not complied with a number of Rules. The first was 7 (2) for not filing a certificate on the correctness of the record signed by him or his attorney; followed by Rule 8 (1) already quoted in extenso above, Rule 9 (1) governing the forms and times for the filing of the Heads of Arguments and the said Rule 15 (1) and (2). In that precarious situation, her Counsel had not bothered to exploit Rule 15 (2) which 5 C of A (CIV) No. 37/ 2014 (unreported) contemplated application for a condonation of those regulatory breaches. [31] Against the backdrop of the identified breaches of the Rules, the Court ruled that the appeal should be struck off the roll. A dimensional order on costs was made on a note that the costs on appeal were unnecessary. Thus, the Appellant was ordered to pay costs for the gross negligence of her Attorney. Amongst the several decisions which inspired the decision, a statement by Centlivres CJ in Commissioner of Inland Revenue v De Burger6 cautioned with precision that: Whenever an appellant realizes that he has not complied with a Rule of Court he should, without delay, apply for condonation7. [32] A catalogue of other cases relied upon for the striking off of the appeal for the breach of the Rules and failure to apply for their condonation were an old one of Koaho v Solicitor General 8 ; Rev. Father Khang v Bishop Mokuku & Ors NNO 9 ; CGM Industrial (Proprietary) Limited v Adelfang Computing 61956 (4) SA 446 (A) 7 At 449G 8 1980 – 84 LAC 35 9 2000 – 2004 LAC 600 (Proprietary) Limited; 10 and Neo Andreas Motake v Bereng Moqhoai11. [33] This Court finds a precedent set in Libuseng Lesesa v Lebalang Khutlisi & Ano12 to be of assistance in that it specifically relates to a situation analogous to the present case. There the appellant had equally failed to file the record within the mandatorily prescribed three months period under the Rule 3 (7) of the Court of Appeal Rules13. Instead, he had taken one year and nine months before filling it. It just happened that after that time he suddenly filed the record. This was done without having lodged a prior application for condonation of his late filing and commensurately, the advancement of any explanation for that none compliance. The underlying narrative is that similar to the instant case, the Court was not given the opportunity to consider the merits or otherwise of the reasons for the delays in the filing of the record within the time mandatorily expected in the Rules. Also, as in the case under consideration, the appellant 10 C of A (CIV) No. 5/ 08 11 C of A (CIV) No. 5/ 2000 12 C of A (CIV) No. 18/ 2004 13 Legal Notice No. 10 of 1980 had for no reason given, failed to set down the appeal for hearing in the preceding session. [34] The breaches were in a nutshell described as indications of ineptitude with serious consequences. To demonstrate its displeasure, the court struck off the case from the roll and punished the attorney responsible for the breaches by ordering him to pay the costs de bonis proporis. [35] We are persuaded that the stated legal principles which this Court has maintained throughout in deciding the destiny of appeals where the breaches under consideration were committed, should be adhered to. This is intended to anchor professional standards and facilitate for expediency towards the conclusion of a case. [36] In the premises, we make an order. 1. The appeal is struck from the roll with costs. _______________________ E. F. M. MAKARA ACTING JUSTICE OF APPEAL __________________ W. J. LOUW ACTING JUSTICE OF APPEAL __________________ DR. P. MUSONDA ACTING JUSTICE OF APPEAL I agree I agree Counsel for the Appellants: Adv. N. S. Molapo Counsel for the Respondent: Adv. T. A. Lesaoana