- May 17, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The plaintiff’s claim and relief sought were outlined in the court’s judgment dated 8 March 2023, which denied the plaintiff’s absolution from the instance application. It is unnecessary to reiterate those details here. It’s important to note that the defendant counterclaimed. Due to the dismissal of the absolution, it is established as a matter of law that the plaintiff has presented a prima facie case. Consequently, in the current proceedings, the defendant bears the responsibility of providing evidence to challenge this prima facie case.
Represented by Mr. Small, the plaintiff abandoned item 7.5 in Claim 1 and fully abandoned Claim 2 and Claim 3. The remaining claims are item 7.1 (N$48,023), item 7.2 (N$72,000), item 7.3 (N$110,469.11), and item 7.4 (N$25,000), all within Claim 1.
PARKER AJ:
In assessing the defendant’s efforts to meet this burden, it’s crucial to consider the evidence presented before the court. In his initial testimony, the defendant denied owing the claimed amounts to the plaintiff. However, during cross-examination, the defendant acknowledged his indebtedness concerning item 7.3, after being confronted with relevant documentation.
Indeed, the defendant partially repaid the N$110,469.11 debt, totaling N$80,000. These payments were made on 1 May 2017 (N$15,000), 8 September 2017 (N$25,000), and 31 January 2019 (N$40,000). Consequently, the argument made by Mr. Mukondomi, the defendant’s counsel, asserting that the defendant was only obligated to repay the debt when financially capable, is rejected as lacking merit.
Furthermore, the submission made by Mr. Mukondomi was rejected. Counsel argued that the plaintiff had voluntarily paid N$25,000 in legal fees (item 7.4) on behalf of the defendant without any prompting from the defendant. The payment was related to an action initiated by the defendant to evict a tenant from his abattoir, and the plaintiff’s interest in the abattoir was cited as the reason.
The accepted evidence indicated that the defendant’s intention to evict the tenant was motivated by two factors: the tenant’s prolonged failure to pay N$30,000 monthly rent resulting in financial loss for the defendant, and the plaintiff’s offer to pay N$50,000 monthly rent if he were to rent the abattoir, which would financially benefit the defendant. The court concluded that the defendant, being an adult businessman, did not require persuasion from the plaintiff to pursue the eviction action for his own financial gain. It was determined that the defendant failed to counter the N$25,000 debt, thus rejecting Mr. Mukondomi’s submission.
Additionally, the defendant argued that he had the right to refuse payment of the debt due to the plaintiff’s alleged failure to grant him a 50 percent share in the plaintiff’s farming business, despite discussions of a ’50/50′ share arrangement prior to the defendant working for the plaintiff. However, it was clear from the defendant’s testimony that the plaintiff consistently deferred negotiations and the formalization of a contract for the business sharing. The defendant’s defence lacked legal validity, as a mere agreement to negotiate does not constitute a binding contract due to its inherent uncertainty.
Mr. Mukondomi urged the court to reject the debt of N$72,000, but the plaintiff’s particulars of claim reveal that the tractor was sold for N$72,000, reducing the outstanding balance. The plaintiff’s concession resolves the defendant’s counterclaim.
As a result, considering Mr. Mukondomi’s argument, the plaintiff’s abandonment of two items in Claim 1, Claim 2, and the entirety of Claim 3 at a late stage of the proceedings has warranted cost implications. Judgment was granted in favour of the plaintiff, amounting to N$111,492.11, with interest at a rate of 20 percent per annum from the judgment date to the full and final payment date. The defendant’s counterclaim was dismissed, and the defendant is liable for 50 percent of the plaintiff’s costs, which encompass the fees of one instructing counsel and one instructed counsel.