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REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: I 92/2014

DATE: 22 JUNE 2016

In the matter between:

ANNANIAS IITA..................................................................................................................PLAINTIFF

And

JOHANNES KAMATI.....................................................................................................DEFENDANT

Neutral citation: Iita v Kamati (I 92/2014) [2016] NAHCNLD 43 (22 June 2016)

Coram: CHEDA J

Heard: 07/07/2014; 12/03/; 13/04; 15/09/2015; 14-16/03; 19/04; 21/04/2016

Delivered: 22 June 2016

Flynote:  Law of Property - Defendant sold property to plaintiff.  Defendant had no authority to do so as he had not acquired ownership from the previous owner.  A party can only sell and pass transfer to the other when he has a right to the said property.  Since defendant had no right to sell the property, the agreement between defendant and the initial owner of the property was cancelled by lapse of time.  Plaintiff’s claim against defendant for his refund of the purchase price succeeded.

Summary: Defendant purportedly bought land from one Laina, but, did not fully pay the purchase price.  Before he could take title, he sold it to plaintiff when he had no right to do so.  Plaintiff paid defendant N$45 000, but, was unable to take title as defendant was not capable of transferring the property since he was not the owner.

ORDER

1. The agreement between Laina and defendant is cancelled.

2. Plaintiff is granted judgment in the amount of N$ 45 000.00.

3. Interest on the aforesaid amount tempore morae at the rate of 20% per annum from 02 January 2014 to date of final payment.

4. Costs of suit.

JUDGMENT

CHEDA J:

[1] In this matter plaintiff sued defendant for the sum of N$ 45 000.00 which was payment made to defendant when defendant sold property to him, while he had no authority to do so. Plaintiff is a Pastor at Evangelical Lutheran Church in Namibia and a lecturer at University of Namibia. Defendant is a male adult and resident at Ongwediva. Both of parties are Namibians.

Plaintiff’s case

[2] Plaintiff testified that defendant placed an advertisement in the National Newspaper, wherein, he sought purchasers of land situated at Omatando Village 2 (hereinafter referred to as “the property”). Plaintiff responded to this advertisement and made contact with defendant who indicated to him the property. He was satisfied with the property. Having been shown the beacons, the property was then pegged by defendant.  The property was for N$45 000 which he fully paid to defendant.  However, after a while, he noticed that the pegs had been removed and it subsequently came to his knowledge that the pegs had been removed by Laima Hamutenya (hereinafter referred to as “Laina”) who infact was the owner of the said property.

[3] From the discussion with Laina he gained knowledge that defendant had previously entered into an agreement of sale with Laina, wherein, a certain deposit was paid, but, a balance remained outstanding. As he desperately wanted the property he entered into a new agreement of sale with Laima and the said sale was legitimized by the Headman as per the requirements of the Traditional Authority in general and in particular Headman Kanisius Shiindi (hereinafter referred to as “the Headman”).

[4] Under cross-examination he maintained that he was misled by defendant into purchasing the property as he believed that it was his. It is for that reason that he was now claiming his purchase price and hence this law suit.

[5] In support of his case he called Laina. Her evidence was that indeed she was the owner of the property in question.  She had initially sold it to defendant on the 15^th of April 2009 for N$ 4 000, for which he paid a deposit of N$ 1 500 leaving a balance of N$ 2 500.

[6] Sometime in 2013 she noticed that someone had started pegging her property and it turned out that it was plaintiff. Upon enquiry from plaintiff he advised her that the property was sold to him by defendant. This surprised her as defendant had not paid the balance of the purchase price for the past 5 years.

[7] According to her, the agreement she had entered into with defendant had lapsed due to his failure to settle the balance within a reasonable period. She also stated that at one time defendant had visited her in the company of one William Mbangula.  He attempted to pay the balance, but, she refused as she had already sold the property to plaintiff. She denied that defendant had title to the property as she was not paid the balance of the purchase price and hence had not taken him to the Headman as per the requirement when selling or disposing of communal land.  She vehemently denied that defendant was the owner of this property.

[8] The next witness was Kanisius Shiindi the Headman of Omatando Village 2. In his evidence he told the court that he was appointed Headman in the Uukwanyama Traditional Authority and letters of appointment were produced. He is still the Headman of that area. He confirmed that Laima introduced plaintiff to him as a purchaser of her property as per the procedure when transacting communal land. As there was no lawful impediment he legitimatized the transaction.

[9] He denied that his appointment was unlawful, although, he admitted that there were some people, defendant and William Mbangula included, who did not recognize him.

This was the gist of plaintiff’s evidence before the court.

Defendant’s case

[10] Defendant gave evidence and stated that he and Laina entered into a sale agreement wherein he bought the land for N$ 4 000 and he paid a deposit of N$ 1 500 on 15 April 2009, leaving a balance of N$ 2 500. It was agreed that the balance was to be paid on the 20 April 2009. However, he could not pay by that date and he advised Laina of his failure which she accepted.

[11] On the 31^st of May 2014 he together with his friend William Mbangula went to Laina in order to give her the balance, but, she refused. It is also his evidence, that although Laina subsequently entered into a second sale agreement with plaintiff, this agreement was null and void because Headman Kanisius Shiindi was no longer a Headman of Omatando Village 2 as the place now fell under the jurisdiction of Ongwediva Town Council (hereinafter referred to as “the Council”).

[12] He further stated, that, even if he went back to pay his balance in 2014 this arrangement was in order as it had been agreed to by the parties.  He produced documents to show that the Headmanship of Omatando Village 2 was in dispute.  He also provided a Government Gazette showing that the property had been designated as falling under the jurisdiction of the Council.  In addition he produced minutes and letters from the Council were produced which indicated that the property is now a Council property.

[13] In support of his case defendant called one William Mbangula whose evidence, was that he accompanied defendant when he went to pay the balance to Laina, but, she turned it down.  William Mbangula also produced documents which showed that the Headmanship of Omatando Village 2 of which his father was the Headman from 1959 to 2003 under dispute. His father was the Headman until he died in 2003.  He also did not recognize that Kanisius Shiindi was the Headman.

[14] What falls for determination is:

Determination

1. Whether or not Laina was the owner of the property and if so whether she had the right to sell the said property;

2. Whether or not defendant had a right over the property; and

3. Whether or not defendant had the authority to sell the property

[15] Laina proved that the property was hers and that it fell under the jurisdiction of Oukwanyama Traditional Authority. She had authority to sell it and initially sold it to the defendant with the understanding that defendant was to pay a deposit and the balance at the stipulated date. However, defendant, defaulted and she then sold it to plaintiff. As this property was under the jurisdiction and purview of the Traditional Authority she went through the motions of transfer with the Headman who legitimized it.

[16] Defendant indeed entered into an agreement of sale with Laina but, however, he failed to pay the balance within a reasonable time. In order to legitimize the contract it is a requirement to either obtain authority from the Headman as the property was at the relevant period under the Uukwanyama Traditional Authority. If, he did not recognize him, then he should have produced a Title Deed or some such other title from the Council to show that he was the owner of the property and as such he had the authority to sell it to plaintiff.  Defendant has failed to produce evidence to show that he had assumed title in this property, which bestowed him the right to deal with it in the manner he deemed fit, selling not excepted. He, therefore, has no right over the property.

[17] Ms Kishi argued that in the absence of evidence, that defendant had authority to sell the property, his agreement with plaintiff should be cancelled and he be ordered to refund plaintiff the purchase price.

[18] I find that Laima was the legitimate owner of the property and she, therefore, had to deal with the property in general and sell it in particular.  This she did it on both occasions by going through the Headman for legitimacy. On the other hand, defendant had no right to sell the property as he, firstly, did not acquire the right of ownership which was necessary in order to own property under the Traditional Authority or under the Council.

[19] Ms Kishi for plaintiff further argued that the agreement between Laima and defendant lapsed due to defendants breach by failing to settle the balance as agreed.

[20] I agree with Ms. Kishi’s submission.  It is a fact that defendant breached the contract and in my view the breach is sufficiently serious as it goes to the root of the contractual terms and as such Laima was entitled to cancel it. This is the law as laid down in Oatorian Properties (Pty) Ltd v Maroun 1973 (3) SA 779 (A) 784 F-G:

“according to the well- known principles there enunciated rescission of a contract is only permissible if a breach occurred of a term which goes to the root of the contract and the materiality of the breach is according to those authorities also a relevant factor in the determination of whether rescission should be ordered or not.”

[21] Defendant’s breach goes to the root of the contract and the said breach destroyed the foundation of the said contract. Therefore, there was no contract left. Since he was in breach Laima was legally entitled to cancel the contract, see Oatorian Properties (Pty) Ltd (supra)

[22] Defendant argued that his failure to pay the balance timeously was due to the fact that he had no money and he appraised Laina of his predicament and she had agreed to give him time to pay, thereby altering the terms of the sale agreement. This, Laina vehemently denied and in fact it would not have made any economic sense to wait for 5 years for a partly sum of N$ 2 500.  Defendant’s assertion is accordingly rejected.

[23] The second point is that in order for one to be an owner of land in Namibia one takes title either through the Headman or by Title Deed. Defendant did neither of these.  Therefore, he had no right to transact this property.

[24] Defendant submitted for my perusal various documents which I have done.  The documents seek to prove that Headman was not properly appointed and as such he disregards his authority.  In fact he treats him with a lot of disdain and contempt by his reference to “the-so-called” Headman. His various documents do not help in as far as his breach of the contract and lack of ownership of the property is concerned. In these respects he is found wanting.  They are, therefore, rejected as they do not enhance his case any further.

[25] In the absence of proof that he was bestowed with ownership by Laina through the Headman or that he was so entitled by virtue of a Title Deed from Ongwediva Town Council, he cannot successfully defend plaintiff’s claim. It is clear, therefore, that defendant sold property of which he had no authority and/or right to.

[26] I find that plaintiff proved his case on a balance of probabilities and as such his claim succeeds and defendant’s defense is dismissed with costs.

Order:

1. The agreement between Laina and defendant is cancelled.

2. Plaintiff is granted judgment in the amount of N$ 45 000.00.

3. Interest on the aforesaid amount tempore morae at the rate of 20% per annum from 02 January 2014 to date of final payment.

4. Costs of suit.

M Cheda

Judge

APPEARANCES

PLAINTIFF: F. Kishi

Of Dr. Weder, Kauta & Hoveka Inc., Ongwediva

DEFENDANT: Johannes Kamati

The Defendant (In Person)

Erf No. 2668, Hanoever, near Sunshine Kindergarden

Ongwediva

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