Prohibited Splitting Of Claims, Prescription In Litigation And Land Ownership, Fencing Of Land, And Principles Of Awarding Costs In Namibian Courts

Prohibited Splitting of Claims

1 Section 40 of the Magistrate’s Court Act 32 of 1944 prohibits the splitting of claims. With reference to case law, explain the improper splitting of claims.

2.1A party to litigation who invokes prescription shall do so in the relevant document filed of record in the proceedings....” Having due regard to the latest case law and the relevant sections of the applicable legislation on the topic, explain and discuss this statement.

2.2 When amending a pleading, the question often arises whether the amendment introduces another cause of action that has prescribed. Briefly discuss this statement and whether such amendments should be allowed or refused.            

3. Your client advises you that he is the owner of a certain farm, Alberta, which on one side neighbors two farms, being Nauchas and Nauams. It appears that during the 1920’s the previous owners of these 3 farms decided to fence in their land, as this had not yet been done. They did so by using the beacons, which indicated the borders of the farms. Throughout the years 1927 and 1928 the three neighbors worked together to fence the borders of the farms. Because they did not use a land surveyor to indicate the correct beacons, they deviated from the true borders at some arrears. It appears that where the 3 (three) farms come together, the wrong beacon was used, which lies approximately 714 meters south of the true beacon, which is on a mountain top, and which was not visible from the foot of the mountain. The effect was that the border was fenced south from the true southern fence of Alberta. Due to this, a section of approximately 179 hectares, and a bordering section of Nauchas, of approximately 319, 5 hectares, were cut off and fenced and enclosed as a part of Alberta. The three owners were unaware of this mistake, and since 1928 until recently, everyone accepted the fences were erected correctly. The previous owner of Alberta, as well as your client, his predecessor in title, used the farm as enclosed without realizing part of it was indeed sections of the farms Nauams and Nauchas, as described in their title deeds. During 2011, the current owner of Nauams bought the farm. Shortly thereafter he started to insist that the fence should be moved to the correct position.

What advice would you give your client in respect of his situation, and specifically advise him on the applicable legislation, and would facts you would need to allege and prove in the legal proceedings that you would have to institute.

4. With reference to applicable Namibian case law discuss the key principles courts consider when awarding costs. In your answer briefly define costs and the types of costs we find.

The Magistrates Courts Act disallows splitting of claims by providing that a substantive claim that goes beyond jurisdictional limits of the Magistrates Courts ought not to be split with the aim of recovering the same in more than one suit, especially where the litigants to all such suits would be similar and that the issues of determination in such suits would also be similar. The Act recognizes jurisdiction through consent of parties, by requiring that with the exception of statutory matters beyond the jurisdiction of Magistrate Courts, the courts ‘shall have jurisdiction to determine any action otherwise beyond the jurisdiction’ subject to the consent of both parties. The Act further avoids splitting of claims by providing that in the event of a counterclaim that exceeds jurisdiction by a defendant, the court, instead of dismissing the claim, on prima facie grounds stay the initial claim and allow the defendant to lodge a claim in a court of competent jurisdiction. The case of Southern Investments (Pty) Ltd v Taga Investments (Pty) Ltd and Another which involved a Conflict of Laws issue, made the court dismiss the case with costs because a claim of the smaller amount had been instituted at a Namibian Court. Another case where the defendant consented to an improperly split claim, was Genesis Medical Scheme v McCarthy Ltd [2009] unreported, where the defendant impliedly consented to the plaintiff’s averment. The obligation to avoid improper splitting of claims on the lower courts is therefore not only the court’s obligation but it is also upon the affected parties to stay vigilant.

Prescription is defined as the possession of a thing by a person, as its owner, where ‘he has possessed openly as if he were the owner thereof for uninterrupted period of thirty years, or for a period which together any periods for which such a thing was possessed’ by his previous generation in life constitute a thirty-year period of strictly no interruption. The cases which this doctrine was discussed in detail and applied are Seaflower Whitefish Corporation v Namibia Ports Authority, Seaflower Whitefish Corporation Ltd v Namibian Ports Authority, and Bank Windhoek Ltd v Kessler where the courts in the respective cases were confronted with not only the interpretation but also the application of prescription clauses. In the context of land ownership, therefore, prescription involves the acquisition of land by a person, as the bona fide owner of that land after possessing it for a thirty-year period or more, with no interruption whatsoever.

Prescription in litigation and land ownership

Amendment of pleadings is a vital process in a civil suit. Courts have had an opportunity to discuss this issue at length as evident in Moongold Properties CC v The Estate Agents Board where the court affirmed that an amendment ought to be allowed so as to allow proper ventilation of issues between the parties, and thus to determine the real issues between the litigating parties in order to serve justice. The court did not, however, hesitate to point out that even with amendments allowed, such amendments must not be prejudicial to the opposing party, such that it cannot be cured even by an order as to costs. As guided by this case, therefore, amendments to pleadings ought to be allowed in order to enable the court to achieve justice by delving into the real issues at dispute.  

In this matter, the applicable legislation would include the Constitution of the Republic of Namibia, Flexible Land Tenure Act, the Civil Proceedings Evidence Act which covers procedural civil matters and Squatters Proclamation that prohibits the unlawful presence of persons or activities and their removal thereof.

The facts which ought to be alleged and proved in the legal proceedings to be instituted are that: the client is the bona fide owner of the Alberta Farm by adducing title to it, the decision to fence the farm and the two other adjacent farms was obtained by mutual consent from all the concerned parties, the beacon used occasioned faulty boundaries which led to the honest mistake of fencing based on that bearing, the previous owner of the farm legally and validly transferred the farm's title to the client and that the predecessor in title also used the land as enclosed without realizing that part of it was sections of the other two farms.

A similar incident occurred in the case of where, three pieces of land, adjacent to each other had been negligently fenced off without a surveyor and this resulted to over three hundred hectares of land going to one of the three, cut off from the other pieces of land. The bona fide owner of one of the two pieces of land which had been downsized had acquired it through prescription and thus sold it to a new owner. The new owner thus discovered the error from the title and sought to get the land back. It was the decision of the court that new fences be erected on the actual boundaries as opposed to the initial boundaries made through an honest mistake. On the side of my client, however, such land can be acquired through prescription provided that he has lived on it uninterruptedly for more than thirty years, as required under the Prescription Act.This is because the land was not acquired by fraudulent means and a lot of activities had since been carried on it.

Fencing of land

Costs are monetary allowances awarded to a successful litigant, obtained from a judgment debtor, owing to the finances and resources spent in the lodging of or defending a case, or in a separate independent determination within the case. Type of costs includes punitive costs which are awarded by the courts with intent to punish a contemnor as was in Hessel-Enke v Sindlegruber and Others. There is also a party to party costs where the losing party pays the winning party as established in Handl v Handl. There is then the advocate-client costs intended to pay the advocate for legal services especially where a party had to unjustly defend allegations.

The Namibian courts, as indicated by various case laws, are usually guided by various key principles when awarding costs as discussed in the highlighted cases hereafter. In Hessel-Enke v Sindlegruber and Others (supra) the court upheld the precedent set in Indigo Sky Gems Ltd v Johnson where damages were awarded as punitive costs, to a party, due to the opposing party’s misconduct. The court had viewed the misconduct as an abuse of court process. In line with the foregoing and in interpreting various provisions of The Rules of The High Court, the court in the case of Namibia Breweries Limited v Serrao dismissed the application on grounds that it not only violated the respondent’s rights’ but it was also vexatious, frivolous and scandalous. A plaintiff who also prolongs the case, which in turn causes additional avoidable expenses to be incurred by the defendant is also not entitled to costs. This was the position of the court in Channel Life Limited v Finance in Education Ltd where the case had been dragged on by the litigant, for long, which made the opposing party incur unnecessary litigation costs. State and public officers performing public functions also are immune to cost liabilities unless their acts amount to gross violations of the law, was affirmed by the court deciding the matter of Hoveka and Others v The Master and Another. Namibian courts in deciding public interest litigations, also shy away from awarding costs as was the case of Tihoro v Minister of Home Affairs which involved a constitutional interpretation.

Awarding of costs also varies depending on the level of the court structure upon which the case is lodged. For instance, The Magistrates Courts Act confers upon the magistrates the discretion of awarding costs on instances where they deem that doing so would achieve justice. On the other hand, the High Court and the Supreme Court awards cost generally on a case to case basis, as required by the Rules of the Supreme Court of Namibia and the High Court Rules on factors such as annexures. Employment courts also award costs differently. The Labour Act only mandates the court to award costs in a labor dispute, where a party has acted in contempt, in a vexatious or frivolous manner.