- April 27, 2023
- |Concise Law Reports (CLR), Contracts
This was an action for damages in respect of property that the defendant allegedly removed unlawfully from a premises that the plaintiff leased from him. The plaintiff and the defendant entered into a written lease agreement in terms whereof the plaintiff leased an unfurnished flat from the defendant. The plaintiff was unable to make a timeous payment and informed the Defendant of that fact. While the plaintiff was away, the defendant entered the flat, by breaking the door and removing the plaintiff’s belongings. The plaintiff attempted to resolve the issue to no avail. He remained effectively evicted from the flat. The defendant later sold the plaintiff’s belongings. The plaintiff claims the delivery of his property, alternatively, N$132 620, being the value thereof. In his plea, the defendant did not deny removing the plaintiff’s belongings but denied the value of the plaintiff’s belongings as alleged. He pleaded that the plaintiff abandoned his belongings and denied that he acted unlawfully. The defendant also filed a counterclaim of N$31 900 for storage, arrear rental, and repainting and repairs to the flat.
There is no question that the plaintiff was late with the rental payment that was due in August 2019. Clause 4 of the lease agreement stipulates that payment should occur on or before the 25th of each month. The plaintiff testified that he informed the defendant during the last week of August 2019 that there was difficulty with the payment and as a result, it would be delayed. On 2 September 2019, the defendant entered the flat occupied by the plaintiff, without prior notice to the plaintiff, and effectively evicted him. In my view, this was an unlawful eviction. I do not accept that the defendant could reasonably have thought that the plaintiff abandoned his belongings and his occupation of the flat under the circumstances.
COLEMAN J concluded that:
‘[6]… It is trite that for the termination of a lease, proper notice must be given, and eviction should occur through the courts (W E Cooper, Landlord, and Tenant 2nd Ed (1994) p363-364). Here, the parties agreed to the jurisdiction of the Walvis Bay Magistrate’s Court. The defendant did not give notice of the termination of the lease, nor did he evict the plaintiff through the judicial process. He arbitrarily and unlawfully evicted the plaintiff.
‘[7]… The defendant’s legal practitioner submits that the plaintiff did not prove the value of his belongings. The plaintiff bears the onus. He sets out the value of each item he alleges was removed from the flat in annexure ‘FO2’ to his particulars of claim. He confirmed it under oath. He was not cross-examined in any detail about these items and their value. In my view, the plaintiff’s evidence of the value of his belongings was not challenged adequately nor contradicted in any significant way.[1] It is the best evidence.
Accordingly, they ordered the defendant to pay the plaintiff N$132 620 plus interest at the rate of 20% per year calculated from the date of the order the plaintiff’s counterclaim was dismissed.
[1] Abner v K L Construction and Another (I 1676-2011) [2013] NAHCMD 139 (27 May 2013) para 7.