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Chicole and Others v The Attorney General of the Republic of Botswana and Another (Civil Appeal No. 15 of 1995) [1996] BWCA 10; [1996] B.L.R. 763 (CA) (1 February 1996)

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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
CIVIL APPEAL NO. 15 OF 1995 [HIGH COURT CIVIL CASE NO. F249/92]
In the matter between:
ALBINO PEREIRA FRANCISCO CHICOLE         1st      Appellant
MANOEL ALBINO FRANCISCO CHICOLE  2nd      Appellant
GLORIA ALBINO FRANCISCO CHICOLE  3rd      Appellant
and
ATTORNEY GENERAL OF THE REPUBLIC
BOTSWANA         1st      Respondent
KEAGETSWE LERATO         2nd      Respondent
Appellants in Person
Mr. T.P. Moipolai for the Respondents
JUDGMENT
CORAM    T.A. AGUDA, J.A.
W.H.R. SCHREINER, J.A. LORD W.I.K. COWIE, J.A.
AGUDA J.A.
In this judgment, I do not find it necessary to give the details of the dispute between the Appellants and the Respondents, for this appeal is concerned only with whether this Court should allow the appeal of the Appellant against the Order of the Court dated January 18, 1995 setting aside the default judgment which had been entered by the Assistant Registrar in

2 favour of the Appellants on July 28, 1992.
On June 26, 1992 the Appellants issued summons against the
Respondents in the High Court, at Francistown claiming a total
sum of P2,252,118.13t and costs for unlawful arrest and detention
and malicious prosecution against the three Appellants, and for
indecent assault on the 3rd Appellant. They filed a declaration
along with the summons. The summons enjoined the Respondents to
enter appearance to defend the suit within 21 days. The summons
was served the same day. It would appear that on the application
of the Appellants judgment in default of appearance was entered
in favour of the Appellants on September 3, 1992. On September
21, 1992, an application was filed for the assessment of damages,
and on October 9, 1992, when the application was being argued,
one Mr. Chamme from the Attorney-General's chambers happened to
be in Court in respect of another matter. It seems clear that
he could not have been allowed to and indeed was not heard in
respect of the application. It should only be noted that
Aboagye, J., on that date made an Order that the Assistant
Registrar was to assess the damages. Mr Chamme was alarmed at
this development since he had by a telephone call on July 28,
1992 instructed one Mrs Sekgoma to file an appearance. Since of
course a judgment had been entered, Mr. Chamme had no alternative
than to file an application to set aside the judgment, which in

3 fact he did on October 13, 1992. Meanwhile he set about finding
out how things had gone wrong. He discovered that in fact there
was in the file of the Court a Notice of Appearance stamped and
initialed by M.T. Mokgadi, a clerk in the Registry, which showed
that it had been filed on the same day, namely July 28, 1992,
that he had asked Mrs. Sekgoma to file it. That was not all.
He also discovered that the Defendant's Special Pleas which he
signed at Gaborone on August 16, 1992, had in fact been shown as
filed on September 18, 1992.

The Respondents' application dated October 12, 1992 was opposed by the Appellants. It was heard by Aboagye, J., who came to the conclusion that the Order which he had made on October 13, had been made in error, and he then ordered that it be set aside. The Appellants thereupon filed an appeal to this Court. When it came before us we discovered that there being conflicting allegations of facts in the affidavits it was necessary that the High Court should have taken oral evidence. In consequence we sent the matter back to the High Court and for another Judge to re-examine it after he must have taken whatever oral evidence the parties were prepared to put before him.
It was as a result of the order of this Court as herein mentioned that the matter went before Cotran, J., for adjudication. The learned trial Judge took oral evidence, after

4
which he wrote a considered Ruling at the end of which he made
an Order setting aside the default judgment. He accepted that pleadings had been closed in the case and that a date should be fixed for a hearing of the Appellants' suit on its merits. It is against that Order of Cotran, J., that the Appellants have once more filed an appeal to this Court.
It must be mentioned that although the Appellants were not represented by Counsel, their case was well presented by the 2nd Appellant who is the son of the 1st Appellant and brother of the 3rd Appellant. The main submission of the Appellants is that since a valid interlocutory judgment had been entered in their favour, this Court must permit that judgment to stand since there is nothing in the case presented by the Respondents which would permit this Court to act under the provisions of Order 31, Rule 13 of the High Court Rules. The submission that the interlocutory judgment was a valid one is based on the suggestion that the Notice of Appearance to Defend alleged to have been filed on July 28, 1992, was not filed on that date at all. It must have been filed after the interlocutory judgment had been entered, but back-dated to that date. The document must have found its way thus back-dated through the conspiracy between some officers of the High Court Registry at Francistown and some other officers of the office of the Attorney-General.

5
In support of their allegation of the existence of such a
conspiracy the Appellants rely heavily on the conduct of the
Assistant Registrar, Mr. Godfrey Nthomiwa, in the whole
proceedings. It was he who entered interlocutory judgment in
favour of the Appellants on September 3, 1992. On March 3, 1993,
he swore an affidavit which was filed on the following day to the
following effect:
"[2] I entered judgment in default of plea in the case of A.F.P. Chicole v. Attorney General.
[3] At the time of entering judgment the Notice of Appearance to defend was filed by the defendant.
[4] My interpretation of the rules of the High Court was that if the defendant defaults to enter plea after 14 days of entering appearance to defend, judgment can be entered against him."
According to the evidence which he gave in Court on May  19,
1994, although he had first said that he entered judgment        for
non-appearance, he later, under cross-examination by     1st
Appellant, said:
"I checked the file before I entered interlocutory judgment and the appearance to defend was definitely there. I saw it. I saw it. I mean folio 48. At that time it was shortly after my appointment and I was finding my way. I thought at the time that since the Attorney-General had not entered a plea that was enough for me to enter a default judgment or rather interlocutory judgment in favour of the plaintiff."
Under further cross-examination, Mr. Nthomiwa admitted that

6
he went straight from graduation from the Law School to the
Magisterial bench and from there to the Registry. He had done
very little civil work. He did not know the difference between
"judgment in default of appearance" and "judgment in default of
plea." Then he was asked:
"Why did you not write then v I enter judgment in default of plea?'"
Ans: "I realised later that that judgment should not have been entered at all."
In argument before us the 2nd Appellant drew our attention to the fact that in continuation of his cross-examination the witness had said: "I did agree with your affidavit and I did not sign it." In the affidavit which the Appellants had wanted the witness to swear, appears a paragraph in which the witness was alleged to have agreed that "I perused the case file and found no appearance on record. I accordingly entered interlocutory judgment as prayed for." However, as stated, the witness refused to sign the affidavit, and it was never part of the evidence until we permitted the document to be put before us during argument. It was argued that the witness had agreed with this allegation which is somewhat different from the facts which he had alleged in the earlier affidavit.
At this point it is very important to note that the case put forward by the Appellants is that the Notice of Appearance was

7 back-dated and surreptitiously put in the file as a result of
some conspiracy or collusion between some members of the Court's
Registry and some other members of the Attorney General's
Chambers. This has been succintly put in their written
submissions filed on June 2, 1994 thus:
"2.20 There is no doubt but that in this case, there was a conspiracy between the defendant/ applicants, Mr. Nthomiwa and Mr. Mokgadi [who is the Senior Clerk of the Court], to subvert the cause of justice in order to achieve miscarriage of justice, taking advantage of the 1st plaintiff/respondent's class and status..."
Mr. Chamme representing the defendant gave evidence denying
the existence of such a conspiracy. Mr. Nthomiwa and Mr. Mokgadi
who filed the Notice both gave evidence similarly denying the
existence of such a conspiracy. They were both cross-examined
by the Appellants. Apart from the bare assertions by the
Appellants and questions put to the witnesses, there was no
direct proof whatsoever of any such collusion or conspiracy. The
Court was called upon to infer such a conspiracy, and
unfortunately Cotran, J., was willing to make such an inference.
In his Ruling now on appeal he said:
"Here there was prima facie evidence of
conspiracy of a criminal nature but whether it
was in fact committed cannot be decided on
preponderance of probabilities as if it was a

9
do not amount to any proof of conspiracy at all. They disclose
no more that suspicion of possible conspiracy between Mr. Nthomiwa and Mr. M.T. Mokgadi and some un- named person from the Chambers of the Attorney-General. And what is even more odd in this case is that the learned trial Judge himself had come to the conclusion that the serious errors made by Mr. Nthomiwa, the Assistant Registrar in entering the judgment was more likely to have been due to the lack of experience by the Assistant Registrar, than to any criminal act.
My conclusion on this aspect of this case is that, put at its highest level, the evidence of conspiracy offered constitutes nothing more than a possibility of its existence. Therefore the erroneous statement of the learned trial Judge as set down above cannot be held to vitiate the order which he finally made.
This then takes me to the main issue in this case namely,
whether upon the totality of the evidence the Court could set
aside the interlocutory judgment entered on September 3, 1992
under Order 31, Rule 13 of the High Court Rules. The Rule reads,
in part as follows:
"[1] In all cases where judgment has been given ... in default under Order 30 ... such judgment may be set aside by the Court, and leave given to defendant .. .
[2] Such leave shall only be given on good and

8
normal civil case but beyond reasonable doubt as
it must."
He then goes on to say that the evidence falls short of that
standard of proof. The 2nd Appellant pointed out quite correctly
that the learned Judge erred in his proposition of law on this
point. In his submission the Appellant relied on a passage which
appears in Elliot and Phipson, Manual of the Law of Evidence, 12th
edition at page 75 thus:
"It used to be thought that there was a rule that the criminal standard of proof beyond reasonable doubt is required for any allegation of fraud or crime. fNEW YORK V PHILLIPS' HEIRS T193 91 ALLER 952. AT 9541 . However this is no longer the case. The standard is the civil one of preponderances of probabilities [LEK V MATTHEWS T19271 27 LLR 141; HORMAL V NEUBERGER PRODUCTS
T1957]   1 OB 247 AT PP 262,      2 11 , what is
"probable" depends upon the heinousness of what is alleged."
It is quite clear that the 2nd Appellant is right in saying
that the learned trial Judge was in error when he held that the
facts disclose a prima facie evidence of conspiracy of a criminal
nature, and also that proof beyond reasonable doubt is necessary
to establish such a conspiracy. Even if there was such a
conspiracy of a criminal nature what is required to satisfy the
Court of its existence is proof on preponderance of
probabilities. It seems quite clear, that the facts of this case

10
sufficient cause ..."
The question for determination here is: Did the Respondents show "good and sufficient cause?" entitling them to the Court's exercise in their favour, of its discretion to set aside the interlocutory judgment? It should be noted that the power of the Court to set aside an interlocutory judgment under the provision is not limited to a situation in which a Defendant had in fact filed a notice of appearance before the time limited for such entry of appearance. The Court has a discretion to set aside such a judgment even after the time so limited had expired provided good and sufficient cause is shown. In this case there is no doubt that there is in the Court's file "Notice of Appearance to Defend" dated July 28, 1992 and the date stamp is initialled by Mr. M.T. Mokgadi. Despite the challenge by the Appellants as to the actual date of filing of the notice, the Court cannot shut its eyes to the existence of the document, especially in a case such as this which is not one for liquidated demand. The Court is bound to look at it and as well at the contents of the defence shown to have been filed on September 18, 1992, to see if the Defendants had or did not have a viable defence. In this particular case the Defendants, now Respondents, have shown in their plea that they have quite a viable defence. I do not think that to shut the door against the

11
Defendants as has been strongly canvassed by the Appellants in this case would be in accord with the primary duty of the Court to administer justice as between the litigants before it. It may be pertinent, at this point to give a summary of the facts and circumstances. [1] This is claim in a sum of money in excess of P2,250,000; [2] not being a liquidated demand but in respect of various delicts; [3] there is a clear manifestation on the record of the Defendants/Respondents intention to resist the claims; [4] as soon as the Defendants/Respondents got to know on October 9, 1992, that summary judgment had been entered against them, they on October 13, 1992, filed their own application to set aside the judgment; [5] the grounds upon which they intend to resist the claims are not frivolous but cogent and viable and [6] the only point in dispute is whether or not notice of appearance was filed within the period stipulated. Basing myself upon all these facts and the circumstances of this case, I have not the slightest doubt in my mind that there exists good and sufficient cause warranting the setting aside of the summary judgment entered in this case.
For all above reasons the appeals by the Appellants fail and the Orders made by Cotran, J., on January 18, 1995, are hereby affirmed, with costs.

12 DELIVERED IN OPEN COURT AT LOBATSE THIS DAY OF FEBRUARY, 1996.
 T. A. AGUDA [JUDGE OF APPEAL]
I agree  W. H. R. SCHREINER
[JUDGE OF APPEAL]

I agree
LORD W.I.K. COWIE [JUDGE OF APPEAL]

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