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Mekgwe v First National Bank of Botswana Ltd. and Another (Civil Appeal No. 19 of 1995) [1996] BWCA 22; [1996] B.L.R. 12 (CA) (2 February 1996)

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1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL
CIVIL APPEAL NO. 19/95
In the matter between:
EMMANUEL MEKGWE  - Appellant
and
FIRST NATIONAL BANK OF BOTSWANA - 1st Respondent formerly FINANCIAL SERVICES COMPANY OF BOTSWANA LIMITED
MEKGWE SMALL ENTERPRISES (PTY) - 2nd Respondent LIMITED
Mr. C. Chopamba for the Appellant
Mr. J. Carr-Hartley for the 1st Respondent
JUDGMENT
CORAM: A.N.E. AmiS3ah, J.P. Lord N. Wylie, J.A. Lord W.I.K. Cowie, J.A.
Lord Cowie:
This is an appeal against a decision of the High Court of Botswana at Lobatse granting summary judgment in an action instituted by the first respondent against the appellant and another party namely Mekgwe Small Enterprises (Pty) Limited (hereinafter called the company).
The action arose out of an agreement entered into between the
predecessors of the first respondent and the company in 1990 for
the lease of a truck in return for the payment of a specified
rental. It was further provided that:-
"In the event the First Defendant failed to pay any rental on due date or failed to observe or perform any of the terms of the agreement entered into, the

2
Plaintiff would have the right, inter alia, to cancel the agreement and take repossession of the aforesaid truck, sell same and retain as forfeited any and all payments already made by the First Defendant to the Plaintiff, whether by way of rentals, deposit or otherwise, and to proceed against the First Defendant in respect of any short fall after the sale of the truck;"
The company defaulted in the rental payments and in due course the first respondent repossessed the truck and duly sold it. The first respondent then claimed the outstanding balance of rental on the truck plus interest, from both the company and the appellant. The latter was involved because it was alleged by the first respondent that he had signed a suretyship attached to the lease binding himself as co-principal debtor and surety for the due fulfilment of the company's obligations.
In due course a Writ of Summons was issued against the company and the appellant in respect of the truck which had been sold, but appearance to defend was only entered by the appellant, the company having gone into liquidation in 1991.
On 16th March 1995 an application for Summary Judgment in the action was served on the appellant for hearing on 31st March 1995. By consent and at the instance of the appellant's attorneys, the application was postponed to 7th April 1995 to enable the appellant's attorneys to file an opposing affidavit.
By that date the opposing affidavit had not been filed but the appellant's attorney had it in her possession, and asked leave of the Court a quo to hand it in from the Bar. The attorney for

3 the respondent opposed that motion and after hearing the attorneys for the parties the learned judge a quo refused the motion and granted summary judgment against the appellant.
Unfortunately he did not give his reasons in writing for refusing to allow the appellant's opposing affidavit to be received and filed, but it must be assumed that he did so because the appellant's attorneys had been given an extension of time to file the opposing affidavit, but had still failed to do so. But the fact is the learned judge a quo has not told us his reasons.
The appellant filed a notice of appeal against that judgment and sought an order that it be set aside and the appellant given leave to defend the action.
When the appeal came before this Court, Mr. Chopamba for the appellant put forward criticisms of the learned Judge a quo's decision based on the terms of the Declaration attached to the Writ of Summons; the Application for Summary Judgment, and the fact that the learned judge a quo had refused to receive his opposing affidavit on 7th March 1995. On the last point he maintained that if that had been done it would have disclosed a bona fide defence to the action.
He accepted that the learned judge a quo had a discretion whether to allow the late filing of the opposing affidavit or not but he submitted that he had not exercised his discretion properly, and in any event that it was not possible to say whether the learned

4 judge a quo had done so in the absence of any written reasons.
In these circumstances he argued it was for this Court to exercise its own discretion in the matter. He further submitted that if we did that, we would reach the conclusion, that the opposing affidavit should have been received and that it disclosed a bona fide defence entitling the appellant to a full hearing of the case.
In my opinion this was the only point that was of any merit in this appeal and I have considered it very carefully.
On behalf of the respondent Mr. Carr-Hartley made a very eloquent and persuasive submission to the effect that, although the learned judge a quo had not given his reasons in writing for refusing to allow the opposing affidavit to be filed and granting summary judgment, it was to be presumed that he made his decision properly and judiciously, and it could not be maintained that he had exercised his discretion wrongly, first in refusing to allow the opposing affidavit to be filed at the Bar, and second, in the absence of the opposing affidavit, in granting summary judgment.
He emphasised that the only explanation given to the Court a quo on 7th March 1995 for failing to file the opposing affidavit timeously, was that the attorneys for the appellant could not obtain instructions, because the appellant was in the bush.
He argued that the learned judge a. quo had decided that that was

5 an unacceptable excuse, since the attorneys had already received a postponement of the hearing for seven days to enable them to contact the appellant and had failed to do so in time to file the opposing affidavit before the postponed hearing.

Furthermore he maintained that the learned judge a quo had in these circumstances exercised his discretion properly in granting summary judgment, because extensive and unacceptable delays were occurring in Court proceedings throughout the country as a result of dilatoriness and delaying tactics by, defendants and their legal advisers and that something had to be done to deal with that situation. In his view that was the principal reason for the decision of the learned judge a quo granting summary judgment in this case and he may very well be right, but there is nothing in writing to say so. It was pointed out very forcibly that he was in the best position to appreciate the seriousness of the situation and weight should be given to his decision. Accordingly, Mr. Carr-Hartley submitted, that we should not interfere with his decision and should dismiss the appeal.
While I have the highest regard for the judicial expertise of the learned judge a quo and I have no doubt that he applied his mind properly to the matter before him on 7th March 1995 and acted entirely judiciously, the absence of his written reasons for reaching the decision which he did, puts this Court in a difficulty when there is a dispute as to the proper exercise of his discretion.

6 In the light of the opposing submissions of the attorneys for the parties and in the absence of a written judgment we are unable, in a situation like this, to adjudicate properly on the issue. It is, in my opinion, always necessary where a judge is exercising a discretion in reaching a decision which may be appealed, that he should express his reasons for that decision in writing. So that there can be no dispute about them, and therefore the issue about whether he exercised his discretion properly can be clearly focused.
In the present case in the absence of such a written judgment the issue is not clearly focused, and so this Court as a Court of Appeal is bound to consider the facts for itself and exercise its own discretion in the matter.
As explained at the close of the hearing of this appeal the court decided, notwithstanding the serious problems to which Mr. Carr-Hartley referred, that having regard to all the circumstances of this case we should exercise our discretion in favour of the appellant, and allow the appellant to file his opposing affidavit.
In addition having regard to the opposing affidavit itself, we are satisfied that, without going into details, it sets out a bona fide defence so far as the effect of the alleged suretyship is concerned, and we would accordingly set aside the summary judgment of the Court a. quo and grant leave to the appellant to defend the action.

Finally" we would order the costs of the appeal and the application for summary judgment to follow the costs of the final hearing.

2nd
Delivered in open court this ... l. day of February, 1996
LORD W.I.K. COWIE JUDGE OF APPEAL

I agree.
A.N.E. AMISSAH JUDGE PRESIDENT


I agree.
LORD N. WYLIE JUDGE OF APPEAL

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