BERE J: It is common cause that there was an agreement
entered into between the defendants and the plaintiff for the drilling of a
borehole at the latter's farm in Mvuma.
It is abundantly clear and requires no detailed analysis of the evidence led
that although the first and second defendants took part in the actual
negotiations which led to the subsequent agreement with the plaintiff, these
defendants were only acting in a representative capacity for the third
defendant which is the company that actually entered into an agreement with the
plaintiff.
It is a time honoured and firm legal position that a company stands as a
separate legal entity from its directors and in this regard it was improper for
the first two defendants to be cited in their personal capacity. In fact, it
was incompetent to do that in the absence of any allegation of fraud on the
part of the first and the second defendants.
If this is accepted, as it should be, then there can be no argument that the
first and the second defendants cannot be found liable in their individual
capacities. If there was any breach of contract, that breach must be visited
upon the third defendant as the contracting party.
From the evidence placed before this court by the plaintiff and the third
defendant's representatives it is clear to the court that the parties agreed
that the third defendant was to drill a complete borehole at a cumulative cost
of $2 600 which was split as follows:- a deposit of $1 500 which was paid in
advance by the plaintiff to enable the third defendant to do the work with the
balance to be paid upon completion of the work at hand.
I am aware that the parties who testified in this regard were not in agreement
on this point. I prefer the narration of events as given by the plaintiff as to
me it accords with normal business or contractual practice.
The story told by the first and the second defendant is highly unlikely and
consequently unconvincing for the following reasons: if accepted it would mean
that the plaintiff entered into an agreement with the third defendant without
being appraised of the contract price. That approach is not feasible as it is
not normal for people to enter into an open ended contractual arrangement. Such
an arrangement would bring about uncertainty into the whole arrangement.
The parties who testified are agreed that the third defendant did not manage to
complete the task that it had undertaken to do.
I do not accept the position adopted by the third defendant's representatives
that their inability to complete the drilling was due to the alleged
non-payment of $1 100 by the plaintiff. This money was supposed to be paid upon
completion of the job. The view I take is that the initial payment of $1 500
was supposed to be used to take care of all the requirements in the drilling of
the borehole from start to completion and that the remaining amount was only
due to the third defendant upon completion of the work.
The generous hand extended by the plaintiff in assisting the third defendant's
representatives in looking for a generator must be viewed as a desperate
measure by the plaintiff to see the borehole drilling completed to enable him
to embark on his farming activities as testified by him.
I have not the slightest doubt in my mind that in failing to complete the
borehole drilling the third defendant was in breach of the contract.
The plaintiff has sought in the alternative to claim an amount of $16 800 being
for breach of contract. In other words this amount represents damages as
computed by the plaintiff.
It is trite that when damages are being claimed there must be a clear
indication as regards the computation of such damages. A litigant desiring an
award for damages must be able to prove such damages to the satisfaction of the
court. Computation of damages must not be based on speculative evidence.
In this regard and in a recent Supreme Court judgment, viz Mathew Mbundire v
Tyrone Sim Buttress[1]
the court laid down numerous guidelines to be relied upon in the
computation of damages.
The import of this judgment is among other things aimed at discouraging casual
presentation or casual assessment of evidence to do with damages in general.
In these proceedings there was no attempt by the plaintiff to lay before the
court the basis upon which he sought to recover $16 800 from the defendant. He
dwelt on speculative evidence of a relative who is into vegetable production
and attributed the source of the amount of claim to her without calling her to
testify. That is not the correct approach. Consequently this claim cannot be
upheld by the court.
In the final analysis, I grant the following order that:-
1.
The third defendant be and is hereby ordered to complete the drilling of a 40
metre deep borehole at the plaintiff's plot within 30 days of the plaintiff
giving it through its representatives who appeared in court $1 000-00 in
accordance with the agreement as found by the court.
2.
In the event of the third defendant failing to comply with part (1) of this order,
the third defendant be and is hereby ordered to refund the current total cost
of drilling a similar borehole within 60 days from the date of this order.
3.
The third defendant is to pay costs of suit.
Muzondo & Chinhema, 1st
, 2nd , 3rd defendants' legal practitioners
