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Modisapitse v Kali Motors (Civil Appeal No. 23 of 204) [2005] BWCA 8 (28 January 2005)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Court of Appeal Civil Appeal No. 23/2004 High Court Misca No. 147/2003
In the matter between:
MOTHOOSELE MODISAPITSE   Appellant
And
KALI MOTORS      Respondent
Mr. T. Dambe for the Appellant Mr. T. Joina for the Respondent
JUDGMENT
CORAM: TEBBUTT JP KORSAH JA AKIWUMI JA
KORSAH JA
This is an appeal from the decision of the High Court (Collins J.) declining to set aside the sale in execution held by the Deputy Sheriff on 22 March 2002, of the appellant's right, title and interest in Plot 02/469 Kgaphamadi Ward, Ghanzi Township, Ghanzi District, together with the buildings thereon.

Before considering the merits of the appeal it is necessary to deal with
one preliminary matter. It is this.
Mr. Joina for the respondent gave notice that at the hearing of the appeal
he would raise a point in limine that the appellant had failed to pay
security for costs, as agreed, in the sum of P10 000.00 contrary to Rules
18 and 19 of the Court of Appeal Act [Cap 04:01]. He submitted as a
consequence of this failure the appeal should be dismissed with costs in
terms of Rule 20 of the said Act. The two Rules provide that:
"18. The appellant shall, within such time as the registrar of the Court below may direct, pay the fees prescribed for preparing the record, calculated at the full cost of one copy for the appellant and one fifth of the cost for each of the five copies for the use of the court."
19. The appellant shall, within such time as the Registrar of the court below shall fix, deposit such sum as shall be determined by such Registrar or give security therefor by bond with one or more sureties to the satisfaction of such Registrar for the due prosecution of the appeal and for the payment of any costs which may be ordered to be paid by the appellant:
Upon non-compliance with either of the above Rules the Court of Appeal
may, in terms of Rule 20, order that the appeal be dismissed with or
without costs.
Mr. Joina made no submission in respect of Rule 18, but contended that the appellant had fallen foul of Rule 19 because he had not provided security in the sum of P10 000.00 as agreed. This argument overlooks the alternative provision that, instead of depositing the agreed amount,
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the appellant may furnish security therefor by bond with one or more sureties - which provision the appellant had complied with. The court held that the point in limine was unmeritorious and dismissed the same. I come then to deal with the appeal itself.
In the court a quo the present respondent (Kali Motors (Pty) Ltd) approached the High Court seeking vindication of a property which it averred it purchased in a sale in execution upon an order of court. The respondent alleged that it bought it per its managing director, Harrish Nayee, Plot 02/469 Kgaphamadi Ward, Ghanzi.
How the plot came to be sold in execution is the following. The appellant is the managing director of, and shareholder in, a company known as A.T.Z. and MOD Trading Company (Proprietary) Ltd ("the company") and he resides at Plot 02/469 Kgaphamadi Ward in Ghanzi ("the property"). He alleged that the property was a Self Help Housing Agency plot and had always been recorded as belonging to the company at the Self Housing Agency Department of the Ghanzi District Council.
The appellant was a defendant in a High Court action CC 1373/99 in which the plaintiff, one Stella Micah, obtained judgment against him, in the sum of P20 000.00 and costs of suit on 31 March 2000. The appellant did not appeal the judgment or apply for rescission thereof.
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Pursuant to the judgment for the amount of P20 000.00, interest and costs, a Writ of Execution against the immovable property in the action was issued on 10 May 2001. The sale in execution of the attached property was advertised in a commercial newspaper on 28 January 2002. One of the conditions of sale in execution indicated that the attached property, although it was to be sold to the highest bidder, had a stipulated reserve price of P50 000.00. No explanation was stated in the papers as to the reason for such reserve.
The respondent, or more accurately its managing director, the said Nayee, bid the sum of P50 500.00 at the sale on 22nd March 2002 which bid was successful and the property was knocked down to him. An annexure to the founding affidavit of the said Nayee in the court a quo indicates that the Ghanzi District Council transferred ownership of the plot to the respondent i.e to Kali Motors on 3rd December 2002. Despite the repeated requests for him to vacate the property and give possession to the respondent, the appellant refuses to do so. Hence the respondent's application to the High Court.
It is not in dispute that in an action for rei vindicatio, the plaintiff must allege and prove that (a) he is the owner of the property in question and (b) the defendant is in possession of the property. The latter is not in
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dispute; it is the former which is in dispute and is the crux of this appeal.
The appellant disputed the respondent's ownership of the property on two grounds. I shall deal with each of them separately. The first is that the acquisition of the property was defective by reason of certain alleged irregularities in the sale in execution and therefore ownership did not pass to the respondent. The basis for this contention is the following.
On 15 March 2002, that is a week prior to the sale in execution, the appellant (through its attorneys of record) wrote a letter to the attorney of the judgment creditor, Stella Micah, in the action, Mr. Joina, who was also the attorney of record of Kali Motors the respondent herein. In that letter the said attorneys indicated that they acted for the appellant and protested that their client had paid off the judgment debt as well as a portion of the interest. They were able to demonstrate in the answering affidavit, by reference to receipts issued by Mr. Joina, that an amount of P21 500.00 had been paid. With regard to costs of the action (including deputy sheriffs costs) still owing, the appellant's attorneys required same to be taxed.
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The letter went on to express the view that the attachment of the immovable property, Plot 02/469 in Ghanzi was improper for the following reasons:
" 1. No proper attachment was ever done of our client's movable property. According to our client, there is an allegation that the Deputy Sheriff attempted to serve the Writ of Execution against movables on 27th December 2001. However our client states that this is clearly untrue as there is always people at the house and they would have been able to confirm any attempted service.
2.     
The property under attachment is not registered in the name of our client but in the name of a company called "ATZ & MOD Trading Company (PTY) Limited.
3.     
The Writ of Execution against immovable property has not been served upon our client in accordance with the Rules of Court."
As regards the information imparted to Mr. Joina that a substantial part of the judgment debt and interest had been paid, there was no legal onus placed on Mr. Joina to take any action, nor did he. The remedy available to the judgment debtor was to apply to the Court out of which the writ was issued to stay the writ of execution. The same principle applies to the first allegation that the Deputy Sheriff did not comply with the Rules regulating execution on a judgment debtor in terms of Order 52.
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In Impendle Properties CC v Comrie & Another 1993 (3) SA 705 at
710 C - H: where counsel argued that the provisions of Rule 46 (5) (the equivalent of Order 52 Rule 12 (5) of the Botswana High Court Rules] are peremptory and therefore a failure to comply with the Rule renders the sale invalid, Thirion J., whose view on the issue I humbly subscribe to, said at 710 E -
As to the test to be applied to determine whether a statutory provision is peremptory or merely directory, reference may be made to Phone A - Copy Worldwide (Pty) Ltd v. Orkin and Another 1986 (11 SA 729 (A) at 749. It may well be that Rule 46 (5) is peremptory - within its proper field of application. The fact that it is peremptory cannot however entitle the judgment debtor for whose benefit the sub-rule was not made to rely on it. It is clear from Rule 46 (5) that the execution creditor or the local authority need not react to the notice. They would therefore also be entitled to waive compliance with the requirements of the Rule.."
Similarly, the appellant cannot invoke non-compliance with Order 52
Rule 12 (5) to declare the sale invalid.
In Strime v Strime 1983 (41 SA 850 C Tebbutt J, with reference, inter
alia, to Graham v Graham 1950 (11 SA 655 (Tl at 658 held that a
Court did have a discretion to stay a writ of execution and , in doing so
said the following at 852 A:
Execution is a process of the Court and the Court has an inherent power to control its own process subject to the Rules of Court. It accordingly has a discretion to set aside or stay a writ of execution (See Williams v Carrick 1938
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TPD 147 162; Graham v Graham (supra); Cohen v Cohen 1979 (3) SA 420 ( Rl at 423 D - C. The court will, generally speaking grant a stay of execution when real and substantial justice requires such a stay or, put otherwise, where injustice would otherwise be done."
On the facts of the complainant in the present case, Marais v Aldridge
and Others 1976 (II SA 746 [TPD] was a case in point . I quote from
the headnote:
"In that case the relief sought was the setting aside of the attachment of the applicant's right, title and interest in an action between the applicant and the second respondent and the setting aside of the sale in execution of such right, title and interest. The attachment was attacked on the grounds that in effecting such attachment the deputy sheriff had failed to comply with the provisions of Rule 45 (8). This attack failed (see at 751 A - 752 D). In so far as setting aside the sale in execution is concerned, the applicant had alleged that it was his belief that the first and second respondents had acted in collusion in order to defeat his claim against the second respondent and that it would be inequitable and result in irreparable harm to him if his right of action which was in excess of RIO 000, was sold for R500.
It was held, further, even if there had not been sufficient compliance with Rules of Court 45 (8) (C) (i) (a) in regard to the giving of notice of the attachment to all interested parties, that the court would condone any such failure to comply with the Rules under the inherent jurisdiction of the Court or under the provisions of Rule of Court 27 (3) as there had been no possible prejudice to the applicant by virtue of such non-compliance with the rule. The application was accordingly dismissed."
All the above cases are illustrative of the fact that whenever a judgment -debtor is dissatisfied with regard to how a sale in execution is being conducted, his attorneys must approach the courts for the exercise of the discretion of the court if a stay of the sale in execution is what is desired.
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There is no onus on the attorney for the judgment creditor to petition the court on behalf of the judgment debtor for whom he does not, in any case, hold a power of attorney. There is a two -pronged answer to the complaint that the property attached was registered in the name of someone other than the appellant. Firstly, as already pointed out it was the duty of the attorney of record of the judgment debtor, and not that of Mr. Joina, to do something about it. Secondly, it was open to the person in whose name the property was registered to commence interpleader proceedings to stop the sale of his property. No duty was cast by law on Mr. Joina, to whom the complaints were made, to do anything. In fact, as explained above, it was the court out of which the Writ of Execution was issued which was seized with the power to stay its own order. And it is the person who alleges that the Rules of Court have not, or are not being followed, to apply to the Court to invoke its jurisdiction to order a stay of execution. This was not done by or on behalf of the appellant.
Collins J found it surprising, as I do, that the dispute in respect of this property, which was before the court a quo, was at the instance of the innocent purchaser of the property at the sale in execution in order to enforce its rights as purchaser, rather than any application by he appellant or ATZ and MOD Trading Company (Proprietary) Ltd with a view to nullifying the sale in execution. Collins J. expressed the view, with which I am in agreement, that:
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'The application presently before the Court (to enforce the innocent purchaser's right to the property) was launched a full year after the sale in execution took place. If the appellant was genuinely concerned about the illegality of the sale in execution, which he had threatened a year previously one wonders why it remained supine all that time,"
As demonstrated above, it was always open to the appellant to approach the court from which the Writ of Execution issued by way of Notice of Motion praying for a stay of execution. This the appellant failed to do. There is authority for the proposition that an application to set aside a writ should be by way of notice of motion directed to the judgment creditor - not by letters addressed to the judgment creditor; for only the court from which the writ was sued has the discretion to set aside its order. Where the judgment creditor had no notice of the application, the court refused to set aside the writ even though there was sufficient evidence to show that the writ had been wrongly taken out. See Mosenthal Bros v Coghlan & Coghlan (1888) 5 HCG 87; Shandling & Another v Southern Union Manufacturing Co. Ltd. 1933 CPD 607.
The appellant at no time applied by way of notice of motion, directed to the judgment creditor, praying the court from which the writ was issued to set aside the writ. In the absence of such an application the writ of execution cannot be set aside, nor can the resulting sale in execution.
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For as long as that judicial sale stands, ownership of the property has legally passed to the respondent. That challenge to the respondents right to bring an action to vindicate his right to the property falls away.
The second challenge to respondent's right to a vindicatory order by the appellant is that the respondent lacks the locus standi to bring such an action because the vindicatory application was brought by the respondent - a limited liability company. But the property was purchased by an individual, the aforesaid Harrish Nayee, who bound himself as "the purchaser of the hereinbefore mentioned property to pay the purchase price and to perform all and singular the conditions above." Nayee deposed to the founding and replying affidavits in support of the respondent's vindicatory application as the managing director of the respondent. It was contended that because he did not declare in the affidavits that he was duly authorized to depose to the affidavit and/or attach a resolution to confirm his authority to make the affidavit there is no proof that the property was purchased for the company and that the company was the true owner of the property. The appellant concludes that as a result the company has not, in these proceedings, laid a claim to the property which is the subject matter of the dispute. It therefore follows, so the submission went that the company has no locus standi to bring this application as it has failed to allege and prove ownership of the
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property, ownership, as set out above, being one of the essential elements an applicant for reis vindicatio must establish.
It has long been established that an undisclosed principal, which the
respondent was at the sale in execution, can sue or be sued on the
contract of his agent. Duke of Norfolk v Worthy (1808) 1 Camp 337;
Browning v Provincial Insurance Co. (1873) L R 5 PC 263. 272. The
law on the subject was expounded by Lord Lindley in Keighley,
Maxsted & Co. v Durant (1901) A.C. 240 at 261 thus:
"The explanation of the doctrine that an undisclosed principal can sue and be sued on a contract made in the name of another person with his authority is, that the contract is in truth, although not in form, that of the undisclosed principal himself. Both the principal and the authority exist when the contract is made; and the person who makes it for him is only the instrument by which the principal acts. In allowing him to sue and be sued upon it, effect is given, so far as he is concerned, to what is true in fact, although that truth may not have been known to the other contracting party."
In this case Nayee was only the instrument by which Kali Motors acted in acquiring ownership of Plot 02/469 Kgaphamadi Ward in Ghanzi Township and that establishes the ownership of Kali Motors in the property in dispute. As stated above it is common cause that the appellant is in possession of the property. Thus the respondent has established the two requirements for success in an action for rei vindicatio. Lambinion v Du Toit 1952 (4) SA 431 on which the appellant relies to resist the respondent's claim was decided on its own
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peculiar facts, which can be gleaned from the head note of the report of that case. In that case the identity of the buyer was in issue. In the present case the identity of the respondent was in no way relevant to the concluding of a binding agreement between the Deputy Sheriff and Harrish Nayee on behalf of the respondent..
The appeal against the order of Collins J. is without substance, and it is accordingly dismissed with costs including the costs of the application for leave to appeal.
DELIVERED IN OPEN COURT AT LOBATSE THIS 28TH DAY OF JANUARY 2005.
R. A. K0RSAH JUDGE OF APPEAL

I agree
P. H. TEBBUTT JUDGE PRESIDENT


I agree
A. M. AKIWUMI JUDGE OF APPEAL

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