Lawyers argue over declaration

PATRICIA MAGANU-EDWIN
Staff Writer | Friday June 17, 2011 00:00

Plaintiff's attorney Isaac Seleka of Isaac Attorneys said that the case would have gone to trial if it were not for the fact that the defence decided to file their papers a month late.

Seleka applied to the court for default judgement, stating that reason and putting blame on the defendant's attorney Wada Nfila for not applying for condonation from the court.  'They took the court for granted,' he said. 

Seleka further said that they were applying for default judgement according to Order 25 Rule 11 of the High Court which sums up that if the other party fail to file their papers on time the other party may taken certain actions, including applying for judgement against the other party.

The civil matter was heard before Justice Dr Kholisani Solo. The issues are that the defendant wrecked the plaintiff's car and now the plaintiff is suing for costs of repairing the vehicle. Seleka said that because the respondents failed to timely file their papers the file is not ready for trial.

He said that if they had filed they could have met and discussed but now they do not even know what the issues are. 'They were other things we needed to do before we came to court but we failed to do anything because the defendant partly did not comply with the rules. The defendant failed to file the declaration on time and eventually the trial date arrived,' said Seleka.  Consequently, they were applying for the judgement.

'As a result we made an application that judgement be made against them because they did not comply or timeously file,' he said.

Seleka told the court that the order was that the plaintiffs' file at the end of March while the defendants were supposed to file by April 7 but they only did so on May 20.  ' More than a month later without even applying for condonation,' submitted Seleka.  He stated that they further wrote a letter pursuing the settlement issue, but the letter was never replied to. Justice Dr Solo said that the attorneys needed to be aware that he (the judge) had options as to how he could handle the matter.  He said that he could grant the judgement, could extend the time for compliance or make another order as suitable for settlement of the case. The defendants' attorney Wada Nfila submitted that they were indeed in mora in respect of filing the papers.

He further told the court that they wanted to pursue out of court settlement but also the defendants were slow in giving him instructions.  'The reason why we filed late was because the defendants were slow in giving me instructions on their proposal,' he said.

He said that instructions and pleas were slow and apologised to the court for not taking the judge's order of March 10 seriously.  'We pray for condonation for the delay,' he added.  Nfila further stated that his clients have always offered to pay costs for the judgement application made before court. He added that he was against the judgement being granted to the plaintiffs because their declaration also did not comply with some High Court rules. He said that the quotation to repair the vehicle was obtained six months before the application.

Nfila added that they also had been chasing the plaintiffs for invoices so they could settle.  'For most of last week we wanted invoices from the plaintiffs as proof so we could see the cost of the repairing for the purposes of settlement and we realised that the invoices had not been annexed,' he said. 

He said that if they obtained the invoices chances were that they would have settled.  The judge ordered that as suggested by Nfila they needed to meet for case management, the defendants should pay for the cost of the judgement application and that the relevant invoices be annexed by the plaintiffs.