- January 18, 2023
- |Concise Law Reports (CLR), Property Law
Puma Energy NamTwo (Pty) Ltd v NABTA NAHCMD (18 January 2023)
The plaintiff instituted action against the first and second defendants for ejectment. The plaintiff’s cause of action was that of vindication as it claimed to be the owner of the property. The cause of action was related to a cancelled contract of a franchise agreement entered into on 9 March 1995, and terminated on 31 October 1997. A copy of the “agreement”, an internal approval of Caltex Dealer Proposition, was attached to the particulars of claim. The defendant claims that its continued occupation of the property was on the basis of a joint venture agreement attached to the particulars of claim marked annexure “D” and in fulfillment of Annexure “D”, the parties resolved to set up a ‘Secretariat and Service Station for the defendant on the property’.
The plaintiff adduced evidence that the property is registered in the name of Caltex Oil Namibia (Pty) Ltd and that the company had subsequently changed its name to Chevron Namibia (Pty) Ltd. The name was once again changed from Chevron to Puma Energy Namibia Two (Pty) Ltd, the plaintiff. The plaintiff therefore discharged the onus to prove ownership.
The occupation by the first defendant was not been disputed. The onus was thus on the first defendant to prove just cause for its occupancy. The first defendant claimed that its right to occupy is contained in a joint venture agreement between the first defendant and Caltex Oil Namibia (Pty) Ltd. The parties agreed to pursue negotiations with the Windhoek Municipality or any other party in acquiring land for the setting up of a Secretariat and Service Station for the first defendant. The property was indeed acquired from the Municipality of Windhoek and a Secretariat set up for first defendant. The defendant claimed that the right to occupy the property was for an indefinite period. The first defendant claimed that it was supposed to have been a co-owner having the right to perpetual occupation.
TOMMASI J had to determine the single issue of whether the first defendant established that it was in lawful possession of the property. Held that:
- The plaintiff’s predecessor gave consent to first defendant to take occupation such consent was withdrawn by giving first defendant notice to vacate the property on 20 November 2013.
- Held further that the first defendant’s claim of an agreement between Caltex and the first defendant that for co-ownership is not compliant with section 1 of the Formalities in Respect of Contracts of Sale of Land Act, 1969 (Act 71 of 1969).
As a result, the court granted an order ejecting the first and second defendant from the immovable property with costs of suit.