BoB wants P28m default judgement quashed

Mpho Mokwape | Thursday January 28, 2016 16:11

Senior counsel for BoB, Christopher Loxton, in a legal battle that took two days before Justice Zein Kebonang of Gaborone High Court, said the judgment was subject to review as it was not given legally.

He argued that the judge under certain rules and orders of the High Court had the powers to review the judgment and declare it null and void because it was not given by the learned judge but rather by a Registrar.

He maintained that it was not a review application but still a rescission application, saying under common law practice the judgement was subject to review without presenting it as a review application.

“This is still rescission application but we would like to persuade the judge to review the judgement; he has the powers to determine whether the judgment is legally binding and if it should stand,” he said.

Loxton explained that the judgment was given at the request of the applicants and not in court therefore it should be reviewed.

“The court should determine whether the Registrar had the powers to give the judgment especially without any attempts to contact the other party,” he said.

Before the rescission application, Loxton had made an application for leave to file a supplementary affidavit, saying it had additional information regarding the appearance to defend.

He argued that the application should be allowed as it had a bearing on the whole case, though maintaining that they were in agreement that indeed appearance to defend was never filed.

Loxton said BoB and its lawyers, Collins Newman & Co, could no longer rely on the version of the senior counsel who was handling the matter at the time especially after the emergence of emails indicating that there was no appearance to defend that was filed.

“The court should take into account that there was never an intention for the bank not to file any appearance and it had trusted its attorney to do so, therefore they could not be held liable for the senior counsel’s mistakes as the law firm has already distanced their association with her, which was the best possible way to deal with the matter,” he said.

However, EBC who are the creditors of the collapsed Kingdom Bank, said if the bank wanted a review of the judgment they should have done so through a review application.

EBC Senior Counsel Panayiotis Stais said the application had to be brought and the Registrar cited as one of the parties.

He said in terms of certain rules and orders of the court it was possible for the application to be brought but argued that it could only be done at least four months after the judgment was handed.

“The applicants are now talking about a review but they had not filed any review application for the court to deal with and even if the judge was to allow the review it would have to be brought properly therefore the application should be dismissed,” he said.

On leave to file, Stais said there was no way the application should be allowed because the applicants had known well on time and they should have filed by then.

He said the bank had a turning point where they knew there were issues with the appearance to defend, therefore they should have disclosed that in the first affidavit long back when they filed their replying affidavit.

Stais said they had filed around five affidavits and the bank decided to file only one having known as far back as August that there was no appearance to defend, therefore they should have dealt with the details in the affidavit by then.

He said all applications should be dismissed at a cost as they had been done accordingly.

Kingdom Bank was closed in May last year after an inventory of its balance sheet compiled by Delloite Botswana found the offshore bank’s liabilities to be outweighing its assets by approximately $17 million (P171 million), leading to the BoB, as the regulator, to petition the courts for an order to liquidate the bank.

Justice Kebonang will give judgment at a later date.