REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case number: HC-MD-CIV-ACT-CON-2024/02561
In the matter between:
LUDMILLA HABATTE DOÉSES APPLICANT
and
BANK WINDHOEK LIMITED RESPONDENT
Neutral citation: Doéses v Bank Windhoek Limited (HC-MD-CIV-ACT-CON-2024/02561) [2025] NAHCMD 293 (21 May 2025)
Coram: Ndauendapo J
Heard: 07 February 2025
Delivered: 21 May 2025
Flynote: Practice – Rescission of judgment – Applicant to show good cause for failure to defend action and prospects of success – Service of summons on domicilium citandi et executandi-Applicant’s domicilium citandi changed – Failure to notify respondent of change in domicilium citandi not a defence/good cause-Application dismissed.
Summary: The applicant and respondent entered into an Instalment sale agreement whereby the respondent loaned and advanced monies to the applicant to purchase a vehicle. Applicant defaulted on payments and respondent obtained a default judgment. Summons was served on the chosen domicilium citandi of the applicant, being Erf 6162 Hornbill Street Khomasdal. The applicant no longer resides at the chosen domicilium citandi and therefore did not receive the summons and did not defend the action. Applicant failed to notify respondent of the changed domicilium citandi as per the instalment sale agreement. Applicant brought a rescission application.
Held, that service of summons on a domicilium citandi chosen by applicant is proper service even if she no longer resides at that address as long as respondent has not been notified of the change of domicilium citandi as per the instalment sale agreement.
Held that, applicant has not shown good cause for failure to defend the action.
Held further, that the application for rescission is dismissed with costs.
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ORDER
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The application for rescission of judgment is dismissed.
The applicant is ordered to pay the costs of the respondent’s legal practitioner.
The matter is finalised and removed from the roll.
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JUDGMENT
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NDAUENDAPO J:
Introduction
[1] This is an application for the rescission of judgment granted on 16 August 2024 in favour of the respondent.
The parties
[2] The applicant is Ludmilla Habatte Doéses, an adult female, with her home domicilium citandi erf 6162, Hornbill Street, Khomasdal, Windhoek, Republic of Namibia.
[3] The respondent is Bank Windhoek Limited a public company with limited liability, with its principle place of business situated at 262 Independence Avenue, Windhoek, Republic of Namibia.
Background
[4] On 16 August 2024, this court granted default judgment against the applicant in the amount of N$ 877 897, 41 in respect of a written instalment sale agreement where the applicant purchased a new motor vehicle from the respondent. The purchase price of the vehicle amounted to N$1 477 797, 47.
[5] On 14 November 2024, the applicant filed a rescission application to rescind the default judgment granted on 16 August 2024.
The relief prayed for as set out in the notice of motion is as follows:
(a) Staying and or setting aside the writ of execution of movable properties granted by this court on 23 august 2024 under Case number: HC-MD-CIV-ACT-CON-2024/02561 pending the determination of the applicant’s application for rescission of default judgment granted on 16 August 2024;
(b) Rescinding the court order handed down by this court on 16 August 2024 under case number: HC-MD-CIV-Con-2024/02561;
(c) Setting aside and or rescinding any and all actions pursuant to the aforesaid order, including setting aside the writ,
(d) Granting the applicant leave to defend the main action within 10 days from the date of judgment
(e) Costs of suit.
[6] The application is opposed by the respondent.
Applicant’s case
[7] The applicant admits that she entered into an instalment sale agreement with the defendant to purchase a motor vehicle. In the beginning she honoured the monthly payment, however during 2023 she became unemployed and she fell in arrears with the payment as at 2023 the arrears amount was N$ 164 070.97.
[8] She avers that she never received the summons in this matter. According to the return of service dated 18 July 2024, the summons was served on a certain Immanuel Namwandi at Erf 6162, Hornbill Street, Khomasdal, and Windhoek.
[9] She further states that she previously owned that property between 1999 and 2021. She sold the property to Immanuel Namwandi and relocated to Swakopmund.
[10] When her legal practitioner informed her that the summons was served on a certain Namwandi, she called Immanuel Namwandi to enquire whether he received the summons. Mr Namwandi informed her that he never received the summons, but recall an incident when a certain man came at the house, stood outside the yard and inquired about her whereabouts and, he told him that she did not reside there anymore and the man left without handing the document to him. Mr Namwandi filed a confirmatory affidavit in this regard.
[11] The applicant further states that she has found employment from the end of 2024 and she is now in the position to fully pay the monthly instalment and also the arrears.
The Respondent’s case
[12] The respondent raised a preliminary point that the applicant has not provided security as required by rule 16(2), nor did the respondent waived security nor has the applicant applied to this court to be exempted from paying security.
[13] The respondent submitted that the combined summons was served on the chosen domicilium citandi et executandi of the applicant as per the instalment sale agreement. That address is Erf 6162 Hornbill Street, Khomasdal and it was served on Immanuel Namwandi.
[14] When she sold the property to Immanuel Namwandi and moved to Swakopmund, she did not inform the respondent that she changed her domicilium as required by the agreement. Accordingly, there was proper service as per the agreement.
[15] The respondent further avers that the applicant does not deny her indebtedness to the respondent and that she admits that she is in arrears to the tune of N$164 070,97 due to the fact that she was unemployed. The fact that she is now employed and able to pay the loan is not a defence to her breach of the agreement.
Submissions by applicant
[16] Mr Mwakondange submitted that the applicant paid the N$5000 security, although not at the commencement of launching the application. He submitted that rule 16(2) does not state at what stage security must be paid.
[17] He further submitted that the applicant was not served with the summons at the property, Erf 6162 Hornbill Street, Khomasdal, that is stated in the return of service, as she had sold the property to Immanuel Namwandi in 2021 and the applicant does not reside there as she moved to Swakopmund.
[18] He further submitted that Mr Namwandi, the new owner of Erf 6162 Hornbill Street Khomasdal, did also not receive the summons. He therefore argued that there was no service on the applicant. He referred this court to Knowds v Josea and Another1 where the court held that:
“If short service is fatal a fotiori, non-service cannot be otherwise. Where there is complete failure of service it matters not that, regardless the affected party somehow became aware of the legal process against it, entered appearance of defence and is represented in the proceedings. A proceeding which has taken place without service is a nullity and it is not competent for a court to condone it.”
[19] He further submitted that the reason why the applicant was in arrears with her payment, is because she was unemployed, but she has now found employment and she is in the position to pay the instalment and also pay off the arrears.
Submissions by the respondent
[20] Ms Beets submitted that the applicant failed to comply with rule16(2) by failing to provide security or applying to court to be exempted from providing security.
[21] She submitted that the applicant was served at her domicilium, erf 6162 Hornbill Street Khomasdal, as per the instalment sale agreement. The return of service states that the summons was served on Mr Immanuel Namwanti(sic) at Erf 6162 Hornbill Street, Khomasdal, being the chosen domicilium citandi et executandi of the applicant and that constitute proper service as per the instalment sale agreement. She further submitted that the onus was on the applicant to inform the respondent of her new address in Swakopmund and she failed to do that.
[22] She further submitted that, the applicant admitted her liability to the respondent and her breach of the agreement. The fact that she is now employed and promised to pay the instalment, is not a defence to the breach of the agreement. She therefore submitted that the application for rescission of judgment be dismissed.
Discussion
[23] The applicant averred that the reason why she did not defend the matter is because she did not receive the summons in this matter. In terms of the instalment sale agreement the applicant chose Erf 6162 Hornbil Street, Khomasdal, Windhoek as her domicilium citandi et executandi.
[24] In terms of clause 16.2 of the instalment agreement the duty was placed on the applicant to inform the respondent of any change in her domicilium citandi et executandi, but the applicant failed to inform the respondent that she moved to Swakopmund and therefore her domicilium citandi had changed.
[25] The respondent complied with the agreement by serving the summons on Erf 6162 Hornbill Street, Khomasdal. The return of service clearly states that it was served on Immanuel Namwandi(sic) who bought the property from the applicant. In my respectful view, there was proper service on the applicant as per the agreement. The applicant must carry the blame by not having informed the respondent of the change in her address. In my view the applicant has not shown good cause why she did not defend the action.
[26] In MLN Extreme Safety Wear cc v Rockstar Footwear and Others2 the court held that:
“Service of summons or court process on a domicilium citandi chosen by a defendant or respondent is proper service even if he/she is no longer at that address as long as plaintiff and/or applicant has not been notified of the change of domicilium citandi.”
I fully agree with that dictum.
[27] In view of the finding that there was proper service, there is no need to consider the submission that that the applicant is now employed and is able to pay the instalment and the arrears, in any event, that is not a defence to the breach of the agreement.
[28] In conclusion, the applicant had not shown good cause why she did not defend the matter nor has she shown any prospect of success.
[29] In the result and for the reasons given above, I make the following order;
The application for rescission of judgment is dismissed.
The applicant is ordered to pay the costs of the respondent’s legal practitioner.
The matter is finalised and removed from the roll.
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N Ndauendapo
Judge
APPEARANCES
Applicant: E. Mwakondange
Instructed by Mwakondange & Associates Inc.
Respondent L- L Beets
Instructed by Engling, Stritter & Partners, Windhoek
1 Knowds v Josea and Another [2007] (2) NR 792 HC.
2 MLN Extreme Safety Wear cc v Rockstar Footwear and Others (351 of 2013) [2014] NAHCMD 49 (14 February 2014)