The government financial lender, Citizen Entrepreneurial Development Agency (CEDA) has been given an opportunity to continue its fight to recover over a million Pula assets from a default borrower.
The agency that has been struggling through the years to recover some of its money from borrowers is seeking to recover P1 326 653.62 from Shikas Express to no avail and having suffered at the High Court when the matter was dismissed.
The Court of Appeal (CoA) has reinstated the matter and taken it back to the High Court for continuation. This is after CEDA had made an application appealing the decision of the High Court that was handed on October 9, 2019 dismissing the agency’s application for rescission.The rescission application was against an order of dismissal for want of prosecution under the order of the High Court rules after the Court concluded that either party had taken no steps for six months or more regarding the matter.
When making deliberations on the matter, the CoA Judges said the Registrar’s notice was erroneous in so far as it purported to convey an impression that no steps were taken by the parties to progress the case.
“As the Registrar’s action in listing the matter for dismissal was erroneous, any further step taken pursuant to that order was a nullity and this court need not to concern itself with issues arising from the purported judgment on rescission,” said Justice Leatile Dambe.
Justice Dambe explained that the rule was that it was only when no step had been taken by either party for a period of six months or more that the Registrar was permitted by the rule to list the matter before a Judge for dismissal. She pointed out that it meant that the notice issued by the Registrar before the expiry of six months after the last process was prematurely sent therefore was in violation of the governing provision.
“The order used by the High Court is therefore, set aside and the matter is remitted for continuation,” she said.
According to the background facts contained in the Court documents, the parties had entered into a written agreement on June 29, 2003 and in terms of the agreement the agency loaned Shikas an amount of P1, 265,000.00 and the monthly repayment was P25, 348.00 for a period of five years. Then the loaned party failed to make timely repayments as was expressly agreed, the last payment being July 2, 2009. Accordingly, CEDA decided to issue a summons on October 2014 seeking that the respondents pay the amount and that an order declaring Tribal Lot 2931 Mochudi, be executed. The respondents then entered a notice to defend on April 10, 2015 and that CEDA delivered its declaration on June 10, 2015. “The period between June 10, 2015 when the declaration was issued and October 21, 2015 was four months and not six months,” states the paper.
According to CEDA’s case it was that the said notice for dismissal of action was never served on either party as to afford the lender the opportunity to show cause why the said action should not be dismissed and it filed an application for rescission.The borrower then entered a notice to oppose the said application and delivered preliminary points with effect that the matter had been adjudicated by a competent court by reason that a final judgement was given on October 14, 2016. “The respondent’s points were upheld and the rescission application was dismissed by the High Court prompting CEDA to lodge an appeal before Court challenging the decision,” read the papers.