Mbuende and Another v Hoffmann and Another (123 of 2009) [2010] NAHC 189 (15 November 2010)

Mbuende and Another v Hoffmann and Another (123 of 2009) [2010] NAHC 189 (15 November 2010)

The suspensive condition for obtaining a loan was not fulfilled within the stipulated period and no written waiver or variation was proven. The agreement lapsed and plaintiffs are not entitled to specific performance. The claim for improvements is premature and precluded by the lease. Plaintiffs are entitled to reimbursement of the amount paid to the conveyancer as the transfer did not occur.

Citation
[2010] NAHC 189
Parties
Plaintiff: Mr Abraham Mbuende; Plaintiff: Mrs Adolfine Mbuende; Defendant: Mr Theo Hoffmann; Defendant: Mrs Johanna Hoffmann
Court
High Court
Jurisdiction
Namibia
Judgment Date
15 November 2010
Case Number
123 of 2009
Procedural Posture
Civil / Judgment
Outcome
partly allowed
Legal Topics
Specific Performance, Suspensive Conditions, Non Variation Clauses, Lease Improvements, Unjust Enrichment
Source Language
English
Contract Law Property Law Enrichment Specific Performance Suspensive Conditions Non Variation Clauses Lease Improvements Unjust Enrichment

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Parties

Mr Abraham Mbuende

Plaintiff

Mrs Adolfine Mbuende

Plaintiff

Mr Theo Hoffmann

Defendant

Mrs Johanna Hoffmann

Defendant

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether plaintiffs are entitled to specific performance for transfer of property under a lapsed agreement due to non-fulfilment of suspensive condition
  2. 2 Whether plaintiffs are entitled to compensation for improvements made to leased property
  3. 3 Whether plaintiffs are entitled to reimbursement of monies paid to defendants' conveyancer for transfer

Ratio Decidendi

The suspensive condition for obtaining a loan was not fulfilled within the stipulated period and no written waiver or variation was proven. The agreement lapsed and plaintiffs are not entitled to specific performance. The claim for improvements is premature and precluded by the lease. Plaintiffs are entitled to reimbursement of the amount paid to the conveyancer as the transfer did not occur.

Court Disposition

partly allowed

Orders

  • Claim for specific performance dismissed with costs
  • Claim for N$175,000 for improvements dismissed with costs