Court name
High Court
Case number
3965 of 2011
Title

Nghidinwa v Shiindi (3965 of 2011) [2012] NAHC 320 (27 November 2012);

Media neutral citation
[2012] NAHC 320
Coram
Parker AJ













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: I 3965/2011








In the matter between:








BENJAMIN NDEVAFA
NGHIDINWA
.............................................................PLAINTIFF



and



THOMAS SHIINDI
.......................................................................................DEFENDANT








Neutral citation:
Nghidinwa v Shiindi (I 3965/2011) [2012] NAHCMD 85 (27
November 2012)








Coram: PARKER AJ



Heard: 27
November 2012



Delivered: 27
November 2012








Flynote: Contract
– For sale of goods – Plaintiff alleges defendant’s
breach of oral contract resulting in plaintiff’s suffering
damages in the amount of N$101 000.








Flynote: Practice
– Trial – Plaintiff not appearing in person or by counsel
– Court applying rule 40(3) of the rules of court.








Summary: Contract
– for sale of goods – Breach – Plaintiff alleging
defendant’s breach of oral contract for sale of goods –
Claim for amount paid to and received by defendant – Defendant
claiming no contract between him and plaintiff was concluded.








Summary: Trial –
Rule 40(3) of the rules of court – Application of – Court
satisfied that plaintiff was served with all relevant process and
documents, including set down trial date – Court applying rule
40(3) – Counsel for defendant led evidence and satisfied the
court that final judgment be granted in the defendant’s favour
– Court having being so satisfied dismissed plaintiff’s
claim with costs.





ORDER










The plaintiff’s
claim is dismissed with costs.










JUDGMENT










PARKER AJ:








[1] The plaintiff’s claim is for
damages suffered in the amount of N$101 000 for breach of oral
contract of sale of goods, to wit, bottles of whisky. In his plea and
the summary of his evidence, the defendant denies he entered into any
oral contract to supply the bottles of whisky to the plaintiff.








[2] In the course of events the
plaintiff’s legal representatives filed a notice of withdrawal
as the plaintiff’s legal representatives of record. I am
satisfied that subsequent to the withdrawal, all necessary court
papers, including the set down date, were served by registered post
on the plaintiff at his last known postal address.








[3] At the commencement of trial the
plaintiff was called and did not appear in person or by counsel.
Thereafter, as is the practice of the court, his name was called many
times by the court orderly through the corridors of the court, but
there was no response. That being the case, Ms Sikongo, counsel for
the defendant, requested the court to deal with the matter in terms
of rule 40(3) of the rules of court. She chose to lead evidence with
the view to satisfying the court that final judgment should be
granted in the defendant’s favour.








[4] In this regard,
counsel led evidence along the lines set out in the defendant’s
brief summary of evidence filed with the court in terms of rule
37(11)(c)(iv) of the rules of court. From the evidence I am satisfied
that the defendant has established that no contract for the sale of
goods, to wit, bottles of whisky – oral or written – was
concluded between the plaintiff and the defendant. That being the
case the plaintiff’s claim must fail. Whereupon, I make the
following order:








The plaintiff’s
claim is dismissed with costs.




























----------------------------



C Parker



Acting Judge






































APPEARANCES








PLAINTIFF: No appearance













DEFENDANT: N Sikongo



Of Nambahu & Uanivi Attorneys,
Windhoek