IN THE HIGH COURT OF
NAMIBIA, MAIN DIVISION

CASE NO.: I 471 /2010

In the matter between:

FIRST NATIONAL BANK OF
NAMIBIA …...................................................APPLICANT

and

B V INVESTMENT NO 264
CC ….................................................FIRST
RESPONDENT

F W SCHROEDER
…...............................................................SECOND
RESPONDENT

CORUM: UNENGU, AJ

HEARD ON:
2012.03.27

DELIVERED ON:
2012.03.27 (Ex tempore)

JUDGEMENT:

UNENGU, AJ:
[1] After listening to submissions from both counsel and also having
read the records filed or the information filed of record, it is
very, very clear that Mr. Schroeder, after being afforded the
opportunity to address the issues at hand, decided not to.

[2] What you was saying
is, only, either in respect of the Exception that, no it was not
served on you after it was removed from the roll. You did not receive
any notice again from the other party? But it was time and time
again, pointed out to you that, yes, it was not his duty or the duty
of the other party to place it back on the roll.

[3] In fact that was the
Managing Judge’s duty to place it on the roll and there is
ample substance in the submission of Mr. Schickerling that it was
indeed placed on the roll and you were present on the day when this
was supposed to come for hearing.

[4] On one occasion you
decided not to come and refused and that was an opportunity granted
to you to come and listen to what you were supposed to do, but you
decided not to come to Court. So, you stayed away until you were
forced to come to Court by serving the documents on you. So, if you
were honest enough and considered the issues before you would have
addressed the issues in the Exception, that would have been better
for you to do, but you did not do so.

[5] The Exception is
very, very clear, if you have listened to Mr. Schickerling’s
argument. He said, in your own document you indicated that the
information on which you based your action you said the information
was obtained from the record of the 1^st Defendant, First
National Bank. How did you obtain that? We do not know how it was
obtained. And that is very difficult for you here to link First
National Bank to the publication of that particular article. How did
you know that they are the parties who provided the information to
the person who wrote the article? It is not clear here. Those are the
issues you were supposed basically to tell this Court.

[6] So, I think the
Exception is founded. See in your particulars of claim they do not
have enough, sufficient averments to sustain your claim or the cause
of action in this matter. I really do not have a problem to uphold
the Exception for lack of averments to sustain the cause of action
brought against the 1^st Defendant in this matter and that
is my order.

[7] The Exception is
upheld as I said here, in the result therefore, we reject the
submissions made by the Plaintiffs. Plaintiffs fail and I make the
following Order:

1. 
   The Exception is upheld
   and the claims of the Plaintiffs against 1^st Defendant
   are hereby dismissed with costs.

   
   

2. 
   Jointly and severally,
   the one paying the other to be absolved,
   

   
   

3. 
   Such cost to include the
   costs of one instructing and one instructed Counsel.

   
   

[8] Maybe I am not very
sure about you have requested, is it costs for two Counsel ? In the
Application that is correct than. Of course of one instructing and
one instructed Counsel.

[9] And then, thereafter
you came again and raised points in limine without even
informing the other party that you are going to raise points in
limine. That was out of the Rules of the Court and he has to
answer to these points in limine you have raised. And from
that you said the heads of argument will be filed later and he has to
answer on those. And I have also granted the 1^st Defendant
in this matter costs on points in limine, 1 and 2, and also
the cost because I dismissed those points in limine of yours.

[10] When it comes to
rule nisi, it is the came as I said. I think your submissions
are not well considered Mr. Schroeder. The only issue here is that,,
you were not satisfied that the instructed counsel or his instructing
counsel had no authority to bring this application before Court. You
have pointed out to this fact that there was no such authority. There
is ample authority pointing out that, they had power of Attorney and
that the power of Attorney is inclusive. They were authorised, they
had the mandate to bring this application on behalf of their client,
but despite that, you did not bother to go into the merits of the
application. All what you said is that you are objecting to the locus
standing of the instructed and instructing counsel to bring this
Application on account that they did not have the necessary
authority. All that is rejected and I shall discharge the rule
nisi regarding the following prayers. And of course I have to go
according to the order of the 13^th of December 2011,
before my Brother Justice Ndauendapo, that is in respect of prayers
3.1, 3.1.1, 3.1.2 then 3.1.3 as well 3.4 which were are discharged.

[11] However, the
following prayers in the same ruling by my Brother Ndauendapo, J are
confirmed, namely prayers 3.2, 3.3 and prayer 5. Prayer 3.2 is
ordering and directing that the Respondents pay the applicant’s
costs for the application dated 4^th October 2011, jointly
and severally, the one paying the other to be absolved. Prayer 3.3
ordering and directing that the Respondents pay the Applicants’
wasted costs for the Application dated 23^rd November 2011,
jointly and severally, the one paying the other to be absolved.

[12] With regard to
prayer 5, the Respondents pay the costs of the application jointly
and severally, the one paying the other to be absolved on a scale as
between attorney and own client.

[13] Therefore, the
following order is made:

1. That the respondent’s’
point in limine that the 1^st Defendant’s
Exception was not served on the respondent and not enrolled for 24
January 2012 is dismissed with costs;

2. That the respondent’s
point in limine raised in their Heads of Argument served and
filed on 17 January 2011 to the effect that the wrong parties are
cited and that no one of the parties are before court is dismissed
with costs;

3. That the respondents’
second point in limine raised in their Heads of Argument
served and filed on 17 January 2011 to the effect that the Rule 30
Application was abandoned and that no exception is before court is
dismissed with costs;

4. That the respondents’
third point in limine raised in their Heads of Argument served
and filed on 17 January 2011 to the effect that the 1^st
Defendant’s exception was filed late and out of time and that
an application for condonation was required is dismissed with costs;

5. That the 1^st
Defendant’s exception is upheld;

6. That the respondents’
claim against the 1^st Defendant is dismissed with costs,
such costs to include the costs of one instructing and one instructed
counsel.

[14] Yes those are the
Orders I have read to you Mr. Schroeder. I think we have come to the
end of the proceeding of today. Thank you very much. The Court
Adjourns.

_____________

UNENGU, AJ

ON BEHALF OF THE
APPLICANT: ADV SCHICKERLING

ON INSTRUCTIONS OF: VAN
DER MERWE-GREEFF INC

ON BEHALF OF THE
RESPONDENT: MR SCHROEDER

IN PERSON