Bank Windhoek Limited v JP Investment CC (INT-HC-SUMJUD-2023/00189) [2023] NAHCMD 455 (28 July 2023)
Facts
Bank Windhoek (plaintiff) instituted the main action against the respondents for payment of amounts due and payable as a result of them falling into arrears with payments in terms of a commercial agreement. The plaintiff further sought an order declaring four immovable properties executable. When the defendants entered appearance to defend, Bank Windhoek (now applicant) applied for summary judgment which was opposed by the defendants (now respondents).
Issue
Whether or not to declare the immovable properties executable at the summary judgment proceedings.
Determination
‘[48] It is unclear to this court what the exact nature of the properties in question are. According to the respondents’ papers, it would appear that there are tenants in some of the buildings who are not commercial tenants because reference is made to the primary homes of the tenants. There are several returns of service filed and there are references to specific units in the returns of service. It is unclear how many units there are and whether those units occupied by the tenants were all served with the rule 108 application or summary judgment application and if there was compliance with rule 108(2)(b) of the Rules of Court. For the above mentioned reasons, I am not prepared to grant the relief sought in respect of the immovable property at this stage of the proceedings.’
Bank Windhoek Limited vs Khomas Aluminium and Glass CC (HC-MD-CIV-ACT-CON-2023-04812) [2024] NAHCMD 199 (30 April 2024)
Facts
Bank Windhoek (plaintiff) instituted proceedings against the defendants when the first defendant failed to pay its monthly installments as and when they became due. The plaintiff, amongst others, sought payment in the amount of N$30 768 884.21 from the defendant as well as an order declaring certain immovable properties of the defendants, which was bonded as security for the loan and overdraft facilities repayment, specially executable.
The defendants, faced with the combined summons, filed a notice of intention to defend the plaintiff’s claim. This was swiftly met with an application for summary judgment, with the plaintiff contending that the defendants have no valid or bona fide defence to its claims. The plaintiff alleged that the defendants filed the notice to defend for no other purpose than to delay the plaintiff in the enjoyment of the fruits of its judgment.
Issue
Is an order to declare immovable property executable competent in summary judgment proceedings?
Discussion
‘[25] The starting point to the answer of the above question must be rule 60 (1) which I have quoted earlier. Van Winsen & Herbstein reason that summary judgment procedure is designed to enable a plaintiff whose claim falls within a defined category of claims, (claims in respect of: (a) on a liquid document; (b) for a liquidated amount in money; (c) for delivery of specified immovable property; or (d) for ejectment) to obtain judgment without the necessity of going to trial in spite of the fact that an intention to raise a defence has been intimated by the delivery of the of a notice of intention to defend.
[27] …it is thus clear that the procedure provided for under rule 60 is for a limited objective namely, to enable a plaintiff with a clear and unanswerable claim to obtain a swift judgment. It is thus clear that summary judgment procedure was designed to avoid delays at trials. On the other hand, a claim to declare immovable property executable is a post-trial procedure and is governed by rule 108… [36] In Kisilipile the Deputy Chief Justice stated that:‘[17] Shipila does not decide that when a declaration of executability is sought together with an application for default judgment (or summary judgment for that matter), a court is not bound to consider ‘less drastic measures’ than an outright sale in execution. In fact, Shipila states the contrary…’
[37] The phrase ‘or summary judgment for that matter’ in the above quotation is, in my view, a ‘by the way’ remark by the Deputy Chief Justice. It is a statement which is not necessary to the decision and it goes beyond the occasion and lay down a rule that is unnecessary for the purpose in hand. The phrase is therefore what is generally termed dicta or obiter dicta. This court is thus at liberty not to follow that statement. I therefore take a view different from that which my sister takes in Nedbank Namibia Limited v Hallie Investment 116 CC. Since I regard the statement by the Deputy Chief Justice as obiter, I am not bound by the view that an application for summary judgment can be brought together with an application for a declaration of executability… [43] What is apparent from the Kisilipile judgment is that the procedure governing applications for summary judgment and the procedure governing applications to declare immovable property executable are two separate procedures and they must not be conflated. In a summary judgment procedure, rule 60 is clear in that it is procedure available to a plaintiff who regards a notice which the defendant intends to raise as being bogus or a sham. In that instance the defendant is then required under rule 60(5) to set out facts upon which his or her defence is premised. [44] In an application to declare the immovable property executable, the court would already have found for the plaintiff and the plaintiff is simply seeking satisfaction of its judgment and this is where the role of the court comes in. The court plays an oversight role to an ensure that where the immovable property sought to be declared executable is the home of a judgment debtor judicial oversight is required in order to ascertain whether foreclosure can be avoided, having regard to viable alternatives. [45] The oversight process is not a trial, the judgment debtor is not defending anything and the procedure is akin to an inquiry by the court. All that the court does is to, on the basis of information presented to it by the judgment debtor under oath, determine whether or not there are less drastic measure than a sale in execution. The inquiry process is, in terms of rule 108 initiated by the judgment/execution creditor who must apply to court and give notice on Form 24 (by way of personal service effected by the deputy-sheriff) to the execution debtor that an application will be made to the court for an order declaring the property executable and must call upon the execution debtor to provide reasons to the court why such an order must not be granted. [46] In addition to the fact the two processes are distinct I do not see how it is practical and legal to bring both process under one application. I express my doubts on the legality of combining the two process on the basis of rule 60(1) to (3). This rule requires of a plaintiff who wishes to bring an application for summary judgment to deliver a notice of the application which must be accompanied by an affidavit made by plaintiff or by any other person who can swear positively to the facts, first verifying the cause of action and the amount, if any, claimed; and stating that in his or her opinion there is no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay. [47] Rule 60(5) in turn requires a defendant who is faced with an application for summary judgment to either give security to the plaintiff to the satisfaction of the registrar for any judgment including interest and costs. Alternatively, a defendant satisfy the court by affidavit or by oral evidence, given with the leave of the court, of himself or herself or of any other person who can swear positively to the fact, that he or she has a bona fide defence to the action and the affidavit or evidence must disclose fully the nature and grounds of the defence and the material facts relied on. [48] The practical difficulty is that the affidavits envisaged under rule 60 must contain only that information as prescribed by the rule. So practically speaking, how will a plaintiff who is applying for summary judgment apply in that same affidavit for the immovable property to be declared executable without falling foul of rule 60(2)? Similarly, how will a defendant who intends to provide reasons to the court as to why his or her property must not be declared executable do so in the affidavit contemplated under rule 60(5), without falling foul of that rule. [49] For the reasons that I have set out in this ruling, I find that as a general rule an application for summary judgment and an application to declare immovable property especially executable cannot be brought in one application or together…’
Determination
Held further that: the procedure provided for under rule 60 is for a limited objective namely, to enable a plaintiff with a clear and unanswerable claim to obtain a swift judgment. It is thus clear that summary judgment procedure was designed to avoid delays at trials. On the other hand, a claim to declare immovable property executable is a post-trial procedure and is governed by rule 108.
Held that: an order declaring an immovable property executable is as a general rule a post-trial procedure, in other words it is a procedure setting out how judgment debt can be satisfied.
Held further that: the procedure governing applications for summary judgment and the procedure governing applications to declare immovable property executable are two separate procedures and they must not be conflated.
Held further that: as a general rule, an application for summary judgment and an application to declare immovable property specially executable cannot be brought in one application or together.
Court order
The prayer to declare the immovable property executable was refused because there was no application in accordance with rule 108 before the court.
Nedbank Namibia Limited v Omuthiya Classic Investments CC (HC-MD-CIV-ACT-CON-2024/00221) [2024] NAHCMD 288 (5 June 2024)
Facts
In the main action, the plaintiff (Nedbank) sued the defendants for payment of sums of money arising out of an agreement, and an order declaring certain immovable property executable. When the defendants entered appearance to defend, Nedbank brought an application for summary stating that the defendants had no bona fide defence to the claim and have entered appearance solely for the purpose of delaying the matter. The application was opposed.
Issue
Is an order to declare immovable property executable competent in summary judgment proceedings?
Discussion
‘Rule 108 applications vis-a-vis summary judgment applications
[31] … I see no reason why a summary judgment and a rule 108 application should be brought in one go for the same reasons advanced in the Khomas Aluminium judgment. A summary judgment application is a means available to a plaintiff to avoid delays before judgment where there is no bona fide defence, while a rule 108 application is a post-trial process to settle a judgment debt. The said judgment debt may emanate from a summary judgment, which, in my view, supports the finding that a summary judgment must precede the rule 108 application.’
Court order
The prayer to declare the immovable property specially executable was refused.
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FOLLOWING the summary judgment granted in its favour on 28 July 2023 (first case above), Bank Windhoek returned to court with a rule 108 application in Bank Windhoek Limited v JP Investment CC (HC-MD-CIV-ACT-CON-2023/00487) [2024] NAHCMD 313 (13 June 2024) to have the immovable property specially executable. The application was opposed but after weighing the rights of the parties, the court was convinced that the respondents failed to provide sufficient evidence that the substantial debt could be satisfied in a reasonable manner without the drastic consequence of declaring the mortgaged property executable.
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