- July 25, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The plaintiff sought payment of N$725,235.58, compounded interest at its Prime Lending Rate, an order to declare specific immovable property executable, costs of suit, and alternative relief. The plaintiff’s claim against the first defendant originates from a loan agreement, alleging breach due to non-payment of agreed instalments. The claim against the second defendant arises from a suretyship agreement. Both defendants entered an appearance to defend, and the plaintiff applied for summary judgment after the first defendant’s late filing of an opposing affidavit, along with a condonation application.
In his opposing affidavit, the first defendant asserts that the plaintiff breached an oral agreement, rendering compliance with the loan agreement impossible. He also contends that the plaintiff unlawfully cancelled repayment terms and raised concerns about the property’s declaration as especially executable. The first defendant argued for a bona fide defence, seeking leave to defend the action.
The plaintiff’s argument centred on the defendants’ failure to provide a valid defence, and their non-compliance with procedural rules. Despite the first defendant’s claims, the plaintiff maintained the breach of the loan agreement and argued against the existence of a genuine dispute.
USIKU J:
Upon thorough consideration of the submitted documents, it was evident that the defendants have failed to present a defence that meets the requisite standard for avoiding the grant of summary judgment. The defendants’ attempt to assert an oral agreement by the first defendant lacks legal validity due to the non-variation clause present in the written loan agreement. As such, this defence lacked legal merit and could not alter the terms of the written agreement.
In respect of the second defendant’s claim of usufruct over the property, it was notable that this claim was waived in favour of the first defendant’s mortgage bond, rendering it insufficient grounds to obstruct summary judgment. The defendants’ contention that the plaintiff failed to comply with rule 60(3) due to a missing mortgage bond copy is unfounded, as the document is attached to the particulars of claim and part of the case record.
Furthermore, the defendants’ argument about non-compliance with rule 108 lacks substance, as they failed to provide supporting material facts or propose alternative measures to the sale in execution of the immovable property. It is The Court’s assessment that the defendants did not successfully establish a bona fide defence against the plaintiff’s claim, warranting the granting of the summary judgment application.
Regarding the first defendant’s request for condonation for late affidavit filing, such request is denied based on the lack of prospects for success in challenging the summary judgment application’s merits.
As a result, the summary judgment that was granted in favour of the plaintiff against the first and second defendants, jointly and severally, with one paying the other to be absolved; the immovable property was declared especially executable, subject to its existing conditions, with costs of the legal proceedings, calculated on a scale as per the attorney and client basis.