Court name
Northern Local Division
Case number
HC-NLD-CIV-ACT-DEL 107 of 2021
Title

Ongandjera Traditional Authority v IIyambo (HC-NLD-CIV-ACT-DEL 107 of 2021) [2022] NAHCNLD 57 (30 May 2022);

Media neutral citation
[2022] NAHCNLD 57
Case summary:

Practice – Special Plea - Defective Service – Complete failure of service distinguished from irregular service which may be condoned – Court to consider whether purpose of service has been achieved – Prejudice suffered – Overriding objectives of the Rules of Court.

Practice – Special Plea - Jurisdiction – Exclusion of High Court Jurisdiction - To be gleaned from legislation in the clearest terms.

Practice – Special Plea – Non-Joinder – Generic Prayer by Plaintiffs – Not meant to suggest existence of other Defendants – Defendants failed to identify parties to be joined.

 

Headnote and holding:

The plaintiffs seek an eviction order against the defendants. The defendants raised three special pleas. The defendants’ first contention is that the service of summons in the matter constitutes a nullity as the summons had been served on the defendant’s legal practitioner. Secondly, the defendants argued that the court lacks jurisdiction to hear and determine the matter because there had been non-compliance with a statutory provision requiring ratification of the decision to allocate customary land rights. Such ratification lies with the relevant Communal Land Board and not this court. It is further alleged that there is an appeal noted with the Appeal Tribunal in respect of the land in question, thus a statutory body is seized with the matter which renders the action before this court premature. Lastly, the defendants’ raised the issue of non-joinder of parties. This was gleaned from the plaintiffs’ prayer seeking to evict the defendants and ‘all those’ in occupation of the units, which according to the defendants’ suggests that there are other parties in occupation of the land and such parties have not been cited. The Court after having considered the arguments held as follows:

 

Held: that there is a distinction between cases in which there has been a complete failure of service, which cannot be condoned because service is a nullity, and cases in which there has been a less serious form of non-compliance (service that is not so irregular as to constitute a nullity), which may be condoned.

Held that: there was no complete failure of service in the matter. The purpose of service was achieved as the defendants were aware of the case they were required to meet.

Held that: there was no prejudice suffered by the defendants as a result of the manner in which service was effected.

Held further that: The parties had participated in all pre-trial stages of the matter. To order for the process to start afresh in the absence of prejudice and in circumstances where the purpose of service had been achieved would not only be a waste of time and money but would go against the overriding objectives of the rules of court which is mainly to facilitate the resolution of the real issues in dispute justly and speedily, efficiently and cost effectively.

Held: that for this court not to exercise jurisdiction in respect of a specific matter, the court’s jurisdiction must be excluded in unequivocal terms. Further, as stated in Katjiuanjo and Others v Municipal Council of the Municipality of Windhoek (I 2987/2013) [2014] NAHCMD 311 (21 October 2014), for the High Court not to entertain a matter, it must be clear that the original and unlimited jurisdiction it enjoys under article 80 of the Constitution and s 16 of the High Court Act has been excluded by the legislature in the clearest terms.

Held that: as was submitted by the plaintiffs, the prayer to have all other persons occupying the units evicted was a generic prayer, and the defendants had failed to identify any persons that ought to have been joined.

 

The Court in turn dismissed the special pleas altogether - with costs.

Coram
Munsu AJ