Seedad and Another v First National Bank (Civil Appeal No. 7 of 1994) [1994] BWCA 27 (15 July 1994)

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Seedad and Another v First National Bank (Civil Appeal No. 7 of 1994) [1994] BWCA 27 (15 July 1994)

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IN THE HIGH COURT OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CIVIL APPEAL NO. 7/94 HIGH COURT MISCA. NO. 32/93
In the matter between:
-       1st Appellant
-       2nd Appellant
MOHAMED ANVER ABDUL SEEDAT HYPER MANAGEMENT SERVICES
and
FIRST NATIONAL BANK      - Respondent
Mr. E.M. Patel for the Appellants Mr. P. Kgalemang for the Respondent

JUDGMENT
CORAM: T.A. AGUDA, J.A.
W.H.R. SCHREINER, J.A. P.H. TEBBUTT, J.A.
TEBBUTT, J.A:

The Respondent instituted provisional sentence proceedings against First Appellant, Mohamed Anver Abdul Seedat, and Second Appellant, Phikwe Hyper Management Services (PHMS), by way of a provisional sentence summons dated 25th March 1993. In the summons the Respondent's name is set out as First National Bank of Botswana Limited and it is described as "The Plaintiff". It claimed as against both Appellants payment of an amount of P173,625.02, with interest and costs. Its cause of action against Seedat was said to be the balance owing at 31 January 1993 of monies lent and advanced "by plaintiff" to Seedat during 1985 to 1992 "in terms"of a Certificate signed by the Manager of Plaintiff" under a notarial bond No. 834/85. PHMS's indebtedness was said to arise from a surety bond No. 837/86 "for first defendant (i.e. Seedat) in favour of plaintiff "for Seedat's

2
indebtedness" "to plaintiff" (my emphasis). Both the notarial
bond and the surety bond were entered into by the Appellants in
favour of the Bank of Credit and Commerce (Botswana) Limited. The
surety bond was for an amount of P40 000.00.
When the matter came before Aboagye J. in the High Court,
there was no appearance for the Appellants, due to a
misunderstanding as to the date of hearing. Aboagye J. granted
provisional sentence as prayed i.e. in favour of First National
Bank. The Appellants then applied for a stay of execution before
Cotran J, contending, apart from the fact that judgment should
not have been granted in their absence, that there was no
evidence of any cession of the bonds by the Bank of Credit and
Commerce to the plaintiff in the Court below i.e. First National
Bank and that, therefore, the latter had no title to sue for the
relief granted. Cotran J. refused to grant a stay of execution.
In doing so he said:

"It is a notorious fact that the International Bank of Credit and Commerce branches in many countries of the World (but not all) have been put under liquidation a couple of years or so ago, but the fact of the matter is that the Botswana entity survived when a change of name of this Bank by the Board of Directors was adopted and business continued as usual in the new name of First National Bank of Botswana Limited. In other words there was no seizure of assets and liabilities either by the Government Financial Institutions Regulator or by the creditors of the Bank by, way of an application to its liquidation (sic) to ensure and safeguard the interests of depositors. Business was continued in the normal way to this day."

He added.

"As far as Botswana is concerned the creditors of that Bank allowed it to survive under another name."

Appellants now appeal to this Court against both the order granted by Aboagye J. and the ruling by Cotran J. Should the first of these succeed, the latter will obviously in consequence fall away.

There is, indeed, no evidence of any cession by the Bank of Credit and Commerce to First National Bank. It is trite law that in an application for provisional sentence the document upon which provisional sentence is sought must speak for itself. If it does not and extrinsic evidence is required to prove plaintiff's title to sue then the document is not a liquid document (see Pepler v. Hirpffrfr^-rq 1920 CPD 438, Union Share Agency v Spain 1928 AD 74, Morganster Development and Finance v Metlarkamp and Others 1986 (2) SA 446 (C) at 445).

The right and capacity for the plaintiff to sue must appear

ex facie the documents. Moreover in a provisional sentence claim

based on a notarial bond annexed to it, the two must be read

together (see Harms: Civil Procedure in the Supreme Court para

H.12 p.227 and cases there cited). As was said in Bank of Africa

Ltd v Harpur (4) EDC 252 -

" there must be a title in the

plaintiff which can be ascertained without extrinsic guidance."

In Bowman Leasing (Ptv) Ltd v Muller 1982 (2) SA 759 (C) at 761
F-G, Berman AJ (as he then was) said:

"... as the deed of suretyship did not itself without recourse to extrinsic evidence, identify plaintiff as a creditor, it was not a liquid document capable of founding an action for provisional sentence."

The documents sued on in this case show that the Appellants
granted the notarial and surety bonds to the Bank of Credit and

4 Commerce. It was to the latter that any amounts were owed. The summons says the amounts were owed to the plaintiff i.e. First National Bank. They were not. It is also clear that the latter was not the holder of the bonds.

Without evidence of cession of the indebtedness and bonds or other extrinsic evidence to establish such title, the plaintiff ex facie the documents had no title to sue.

It was argued that the Bank of Credit and Commerce had
merely changed its name to First National Bank. There is no
evidence to that effect. In any event, there is no evidence that
the assets and liabilities of the former were transferred to the
latter. Aboagye J. should therefore, despite the absence of
appellants, mero motu have refused provisional sentence. Indeed
Mr. Kgalemang, who appeared for the Respondent, conceded that.
He should have done so for two further reasons: (i) Order 14
Rule 4 of the Rules of the High Court provies that:

"Copies of all documents upon which the claim is founded shall be annexed to the summons and served with it."

The rule is peremptory. The certificate of indebtedness referred to in the summons was not so annexed or served on the Appellants. This was therefore a fatal defect in the summons. (ii) Provisional sentence was granted against the second appellant, PHMS, for P173,625.02, whereas its liability under the surety bond was limited to P40,000.00.

The appeal against Aboagye J' s order must therefore succeed, with costs, and it follows that the appeal against Cot ran J's refusal of a stay of execution must also succeed, with costs.

As to the latter I would add that the matters set out by

Cotran J. and quoted above could not have been the subject of judicial notice. The general rule is that a judge may not act on his personal knowledge of the facts (see Cross on Evidence 7th Edn p. 69 and cases there cited) unless they are of common knowledge. The facts to which the learned Judge adverted were not such. Indeed, none of the members of the Court were aware of them.

In the result the following orders are made.

1. The appeals against both the orders granted
by Aboacrye J. and the ruling of Cotran J.
suceed, with costs.

2. (1) The order of Aboacrye J. dated

23rd April 1993 granting provisional sentence is set aside and there is substituted for it the following order:

"Provisional sentence is refused, with costs."

(ii) The order for costs granted on 20th August, 1993 by Cotran J. against the appellants on an attorney and client scale is set aside and there is substituted for it the following order:

"Respondent/Plaintiff is ordered to pay the costs of appellants/ First and Second defendants in these proceedings."

Delivered in open court this 15^th day of July, 1994.
P.H. TEBBUTT JUDGE OF APPEAL
T.A. AGUDA JUDGE OF APPEAL
W.H.R. SCHREINER JUDGE OF APPEAL

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