Ashipala v Nashilongo and Another (3583 of 2007) [2011] NAHC 225 (28 July 2011)

Ashipala v Nashilongo and Another (3583 of 2007) [2011] NAHC 225 (28 July 2011)

The plaintiff paid the full purchase price, including the amount owed to the Council, as corroborated by independent evidence. The first defendant failed to prove impossibility of performance. The plaintiff is entitled to specific performance, and the Council must transfer the property to the first defendant, who must then transfer it to the plaintiff.

Citation
[2011] NAHC 225
Parties
Plaintiff: Wilbard Ashipala; First Defendant: Thusnelde Sonia Nashilongo; Second Defendant: Ongwediva Town Council
Court
High Court
Jurisdiction
Namibia
Judgment Date
28 July 2011
Case Number
3583 of 2007
Procedural Posture
Civil Action / Judgment After Trial
Outcome
judgment for plaintiff
Legal Topics
Specific Performance, Sale of Immovable Property, Impossibility of Performance, Joinder of Parties
Source Language
English
Contract Law Property Law Specific Performance Sale of Immovable Property Impossibility of Performance Joinder of Parties

Case Brief

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Parties

Wilbard Ashipala

Plaintiff

Thusnelde Sonia Nashilongo

First Defendant

Ongwediva Town Council

Second Defendant

Procedural Posture

Civil Action / Judgment After Trial

Legal Issues

  1. 1 Whether the plaintiff paid the full purchase price for the property as per the sale agreement
  2. 2 Whether the plaintiff is entitled to specific performance compelling transfer of the property
  3. 3 Whether the first defendant established impossibility of performance due to lack of title

Ratio Decidendi

The plaintiff paid the full purchase price, including the amount owed to the Council, as corroborated by independent evidence. The first defendant failed to prove impossibility of performance. The plaintiff is entitled to specific performance, and the Council must transfer the property to the first defendant, who must then transfer it to the plaintiff.

Court Disposition

judgment for plaintiff

Orders

  • The second defendant (Council) is directed to pass transfer to the first defendant.
  • The first defendant is directed to take all necessary steps within 10 days, including paying transfer costs, to pass transfer of Erf 3627 Ongwediva from the Council to her, and thereafter to pass transfer to the plaintiff within 10 days, failing which the deputy sheriff is authorised to act.