Shipena v Djuulume (HC-NLD-CIV-ACT-CON 326 of 2021) [2022] NAHCNLD 108 (6 October 2022)

Shipena v Djuulume (HC-NLD-CIV-ACT-CON 326 of 2021) [2022] NAHCNLD 108 (6 October 2022)

The court found that the applicant was not properly served with summons as required by the rules, as the respondent was aware of her actual address but deliberately omitted it, and service was effected on a person who was not her agent. The applicant provided a reasonable explanation for her default and demonstrated a bona fide defence with prospects of success. Therefore, good cause for rescission was established.

Citation
[2022] NAHCNLD 108
Parties
Applicant: Rauna Shipena; Respondent: Daniel Djuulume; Other: Andreas Kalumbu; Other: Second to Seventh Respondents
Court
Northern Local Division
Jurisdiction
Namibia
Judgment Date
6 October 2022
Case Number
HC-NLD-CIV-ACT-CON 326 of 2021
Procedural Posture
Civil Application for Rescission of Judgment / Ruling on Opposed Application for Rescission of Default Judgment
Outcome
application for rescission granted
Legal Topics
Rescission of Judgment, Service of Process, Loan Agreement, Default Judgment, Proper Service, Bona Fide Defence
Source Language
English
Civil Procedure Contract Law Rescission of Judgment Service of Process Loan Agreement Default Judgment Proper Service Bona Fide Defence

Case Brief

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Parties

Rauna Shipena

Applicant

Daniel Djuulume

Respondent

Andreas Kalumbu

Other

Second to Seventh Respondents

Other

Procedural Posture

Civil Application for Rescission of Judgment / Ruling on Opposed Application for Rescission of Default Judgment

Legal Issues

  1. 1 Whether the applicant was properly served with summons in the default judgment proceedings
  2. 2 Whether the applicant has shown good cause for rescission under rule 16
  3. 3 Whether the applicant has a bona fide defence with prospects of success

Ratio Decidendi

The court found that the applicant was not properly served with summons as required by the rules, as the respondent was aware of her actual address but deliberately omitted it, and service was effected on a person who was not her agent. The applicant provided a reasonable explanation for her default and demonstrated a bona fide defence with prospects of success. Therefore, good cause for rescission was established.

Court Disposition

application for rescission granted

Orders

  • The default judgment granted on 22 January 2022 is rescinded.
  • The applicant is granted leave to file notice of intention to defend by 13 October 2022.