[1]
The plaintiff instituted an action against first to seventh defendants in which, in the main, he
avers that he was induced by fraudulent misrepresentation by the second defendant into signing an agreement of sale with the first
defendant, represented by the second defendant, for the sale of farm Sandfontein (now called Remaining Extent of Farm Santfontein),
No. 468 (the farm), Gobabis District, of which the plaintiff was at all material times the owner, to the first defendant, of which,
according to the declaration, the second defendant was at all material times the sole shareholder and managing director (Annexure
“JK4” to the plaintiff’s particulars of claim).
[2]
The pleading sets out further that the second defendant is also the sole shareholder and managing
director of the third defendant; fourth and fifth defendants are married in community of property; sixth defendant is a company limited
by liability, of which the plaintiff is a shareholder; seventh defendant is a juristic person; and eighth defendant is the Registrar
of Deeds. The pleading also states that the third, sixth, seventh and eighth defendants have been cited because they might have an
interest in the outcome of the present dispute, and no substantive relief is, therefore, claimed against them.
The plaintiff’s particulars of claim
[3]
The plaintiff’s main claim, entitled “VOIDABLE SALE OF THE FARM”, is couched in
the following terms:
21.
The parties to the joint venture agreement were not able to continue with it and PLAINTIFF and SECOND DEFENDANT agreed orally during about April/May 2001 at Windhoek that:
21.1
PLAINTIFF would sell the farm to FIRST DEFENDANT at a purchase price of N$ 540,000.00 that does not reflect the true value of the farm because in reality only 50% of the ownership
is acquired.
21.2
The said sale was conditional upon PLAINTIFF acquiring 50% of the shareholding in the FIRST DEFENDANT and that PLAINTIFF would remain in possession and control of the farm; and
21.3
This oral agreement supersedes JK1 as amended.
22.
PLAINTIFF never intended to relinquish his entire ownership of the farm, nor that the farm be sold to third parties.
23.
SECOND DEFENDANT fraudulently represented to PLAINTIFF at the time that:
23.1
He would comply with the terms of the agreement referred to in paragraph 21.1 supra, while he had no
intention of doing so; and
23.2
The “purchase price” of N$540,000.00 represents consideration for 50% of the farm while his
intention was to acquire the entire ownership of the farm for that price.
24.
PLAINTIFF was induced by these misrepresentations to sign an agreement of sale with FIRST DEFENDANT on 31 May 2001, selling the farm for N$540,000.00. A copy is annexed, marked “JK4”.
25.
As a result the said agreement is voidable and should be declared void on the basis of fraud.
26.
The farm was registered in the name of FIRST DEFENDANT on 14 December 2001 in terms of deed of transfer T7666/2001. A copy is annexed, marked “JK5”. This deed should equally be declared void, alternatively be set aside.
27.
PLAINTIFF tenders to repay the N$540,000.00 or any amount the court may find he received as a result of this voidable transfer.
FURTHER SALE OF FARM:
28.
On 8 July 2003 FIRST DEFENDANT, represented by SECOND DEFENDANT entered into a deed of sale with FOURTH and FIFTH DEFENDANT in respect of the farm. A copy is annexed, marked “JK6”.
29.
On 9 September 2003 PLAINTIFF caused a summons in respect of the disputed ownership of the farm to be served on, amongst others, FIRST, SECOND and FOURTH DEFENDANTS.
30.
Despite knowledge of the disputed ownership the said defendants entered into the said deed of sale
and proceeded with the transfer of ownership of the farm into the names of FOURTH and FIFTH DEFENDANTS on 9 December 2003. A copy of the deed of transfer number T6728/2003 is annexed, marked “JK7”
31.
FIRST DEFENDANT could not transfer ownership in the farm to FOURTH and FIFTH DEFENDANTS alternatively transferred it subject to PLAINTIFF’S rights.
32.
Furthermore, the sale and transfer were effected by SECOND DEFENDANT in collusion with FOURTH and FIFTH DEFENDANTS with the fraudulent intent to frustrate PLAINTIFF’S claim to the ownership of the farm.
33.
As a consequence this transfer should also be set aside.
[4]
The plaintiff’s first alternative claim, entitled “50% SHAREHOLDING IN FIRST DEFENDANT”,
contains eight paragraphs:
34.
In the event the court finds that the sale of the farm by PLAINTIFF to FIRST DEFENDANT is not voidable: PLAINTIFF repeats paragraph 21, supra and alleges that he complied with his obligations under the agreement.
35.
As a result PLAINTIFF was since 31 May 2001, when he signed the deed of sale (JK4), owner of 50% of the shareholding in FIRST DEFENDANT, alternatively, deemed to be such owner.
36.
In the premises SECOND DEFENDANT or directors appointed by him only represented 50% of the voting power, or decision-making, of FIRST DEFENDANT.
37.
FIRST DEFENDANT had to decide by 75%, alternatively 51%, of its voting to (sic) power to sell the farm.
38.
PLAINTIFF, or a director appointed by him, would never have agreed to FIRST DEFENDANT selling the farm and as a result no valid decision to sell the farm could have been taken by it.
39.
Consequently, FIRST DEFENDANT could not enter into the deed of sale (JK6) with FOURTH and FIFTH DEFENDANTS and as a result the said deed is void, alternatively voidable.
40.
FOURTH and FIFTH DEFENDANTS knew at all material times that PLAINTIFF is entitled to 50% ownership in FIRST DEFENDANT, alternatively 50% of the farm, and fraudulently colluded with SECOND DEFENDANT to deprive PLAINTIFF of his ownership of the farm.
41.
In the premises the deed of sale (JK6) and the transfer (JK7) in respect of the farm by FIRST DEFENDANT to FOURTH and FIFTH DEFENDANTS
.RTF of original document