Haw retailers cc t/a ark trading 1st applicant

NOT / REPORTABLE

REPUBLIC OF NAMIBIA


HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT

Case no: A 151/08

In the matter between:

HAW RETAILERS CC t/a ARK TRADING 1^st APPLICANT

COASTAL HIRE CC 2^nd APPLICANT

and

TUYENIKELAO NIKANOR t/a

NATUTUNGENI PAMWE CONSTRUCTION CC RESPONDENT

Neutral citation: HAW Retailers CC t/a Ark Trading v Tuyenikelao Nikanor t/a Natutungeni Pamwe Construction CC (A 151-2008) [2013] NAHCMD 121 (17 April 2013)

Coram: SCHIMMING-CHASE, AJ

Heard: 19 March 2013, 27 March 2013, 17 April 2013

Delivered: 17 April 2013 ex tempore
Flynote: Practice – interlocutory application to interdict respondent from executing claim against first applicant, and for an order declaring that the respondent’s claim has been set off against the claim of the first applicant.

Res judicata – requirements – restated – first applicant obtained default judgment in magistrate’s court against respondent. Respondent obtained costs order in its favour against first applicant in the High Court. Respondent alleged that judgment debt in magistrate’s court substantially paid. First applicant raised defence of res judicata on the basis that respondent’s application for rescission of the default judgment in the magistrate’s court was unsuccessful. The question the court had to decide, namely whether the first applicant can set off its debt to respondent against respondent’s debt to it, is not res judicata. It is not the same subject matter or based on the same ground of action.
Summary: The first applicant applied to set off the respondent’s claim in respect of a costs order made against it against monies owing by the respondent to the first applicant in respect of a default judgment granted in favour of the first applicant in the magistrate’s court. The respondent’s claim against applicants was N$64,601.85, the first applicant’s aliquot share being N$32,300.92. The amount for which default judgment was obtained against the respondent was N$173,753.81. The respondent, some considerable time after the default judgment was granted applied for rescission of that judgment. As part of the allegations in support of the rescission, respondent alleged that N$150,000.00 had already been paid, leaving a balance of N$23,753.81. The court dismissed the application for rescission on the grounds that a reasonable explanation for the default had not been provided by the respondent. The court also found that the respondent had not provided sufficient proof of payment of the N$150,000.00 as alleged. However, a later application for default judgment (in respect of the same parties and the same cause of action and debt) by the first applicant clearly indicated that an amount of N$150,000.00 had been paid. It was submitted on behalf of the first applicant that the issue of whether or not the N$150,000.00 had been paid was res judicata, and the respondent’s application for rescission was unsuccessful. Furthermore, it was submitted that the second application for default in the lesser amount was null and void, because it was granted in error by the Clerk of the Magistrate’s court after the first applicant abandoned that application. Thus the judgment for the greater amount stood.
Held: For purposes of establishing whether the amounts claimed by the respondent should be set off against the claim of the first applicant, res judicata did not come into play. The cause of action in this court and the subject matter is not the same even though the parties are the same. The defence of res judicata accordingly failed.
Held: It was clear on the papers that the respondent paid N$150,000.00 in respect of the default judgment, leaving a balance of N$23,753.81. Thus the first applicant still owed the respondent N$8,547.11 which it was ordered to pay.


ORDER

1. 
   The first applicant’s application is dismissed with costs.
   

2. 
   The first applicant is directed to pay the amount of N$8,547.11 to the respondent.
   

JUDGMENT


SCHIMMING-CHASE, AJ

1.