Justicia Shipena
The Supreme Court has overturned a High Court ruling that ordered retired school principal and Oniipa resident Matheus Nuuyuni to remove fences he had put up on several plots of land in Oniipa.
The court ruled that the Oniipa Town Council failed to prove it had possession of the disputed erven, which is required for a spoliation order.
Nuuyuni, who held customary land rights before Oniipa was proclaimed a township, was compensated N$50,280.04 and given erven 115, 116, and 132 as part of a negotiated agreement with the Council.
Later, he fenced off additional plots, 114, 117, 118, and 131, which the council claimed to own and planned to use for a stalled sewerage project.
The council filed an application for a spoliation order and interdict, accusing Nuuyuni of unlawfully taking possession of the land and disrupting planned construction works.
In 2021, the High Court ruled in favour of the Town Council. It found that Nuuyuni had “resorted to self-help” and ordered him to vacate the land.
The court also authorised the deputy sheriff to remove the fences if he did not comply.
Nuuyuni, representing himself on appeal, argued that the council had never been in peaceful or undisturbed possession of the erven.
He said his rights did not end automatically when the area became a township and claimed that the compensation he received was for different erven, 58 to 62—not the ones in dispute.
On Monday, the Supreme Court found that the council had not shown that it had ever been in control of the land.
“The town council did not set out facts to demonstrate that it actually possessed the erven that were fenced off,” the court ruled.
“Ownership is not a substitute for possession.”
During oral arguments, the council admitted it had never physically occupied the land.
The court concluded that the council could not have been unlawfully dispossessed of land it never possessed.
The Supreme Court also noted that the compensation dispute raised by Nuuyuni had not been included in the joint case management report submitted in the High Court and could not be addressed on appeal.
The court condoned Nuuyuni’s late filing of his heads of argument and also accepted the council’s explanation for failing to file a power of attorney.
The appeal was upheld, the High Court ruling was set aside, and the application was dismissed.
The court awarded Nuuyuni costs limited to disbursements.
