BERE J: The plaintiff caused summons to be issued
out of this court on 29 November 2006 seeking the following order:-
“(1) The supply and delivery of:
(a)
1
x 10 000 litre underground tank;
(b)
1
x 25 000 litre underground tank; and
(c)
2
x 35 000 litre underground tanks
or
Alternatively
Payment of damages
representing the replacement cost of the tanks in question plus costs of suit”.
THE
BACKGROUND
The
facts in this case are largely common cause and can be summarised as follows:-
Having
been furnished with a quotation dated 31 May 2006 for the manufacture and
supply of tanks from the defendant, the plaintiff formerly placed an order with
the defendant for the supply of same. The plaintiff initially paid a 60%
deposit which was followed by the payment of the remaining balance to complete
the full purchase price.
By
its letter of 25 September 2006, the defendant advised the plaintiff that it
had completed the manufacture of the tanks as per the agreed specifications.
The
tanks were to be manufactured to the standard of Standards Association of
Zimbabwe size 341 with steps, dipsticks and charts using 6 mm material.
Upon
being inspected by Total Zimbabwe, and for whom the plaintiff was purchasing
the tanks, it turned out that contrary to the assurances by the defendant, the
tanks had not been manufactured per the required design specifications
especially where a 4,5 mm plate was used instead of the 6 mm plate.
The
plaintiff naturally refused to accept the manufactured tanks as they were a
departure from what the parties had agreed upon.
The
defendant then sold the tanks to a third party and when a letter threatening
criminal action was written to it, the defendant offered to refund the
plaintiff the amount it had paid. The plaintiff was not amenable to this
suggestion.
At
the commencement of the hearing of this matter the plaintiff, through its
counsel abandoned its claim for specific performance in preference for a claim
for damages as captured in its alternative claim in the summons commencing
action.
ISSUES
FOR DETERMINATION
At
pre-trial conference held by the parties on 12 June 2009, the parties jointly
agreed on the following issues as the basis for the referral of this matter for
trial;
(1) Whether or not Mr Muzondiwa authorized
the alteration of tank specifications, and if so whether or not he was acting
as the agent of Total Zimbabwe
(2) Whether or not the plaintiff is bound by
any alterations to the specifications that might have been authorized by Total
Zimbabwe,
(3) Whether or not the plaintiff is
entitled to damages and if so, the quantum thereof.
It is
in the light of the issues agreed upon by the parties that the court must
closely look
at the tendered evidence in order to
determine this matter.
THE
EVIDENCE
Blazio
Nyariri, the plaintiff's Managing Director gave evidence for the plaintiff and
basically his evidence was in all material respect consistent with the summary
of the plaintiff's case as outlined above.
The
witness confirmed that upon being given a quotation for the manufacture and
supply of the tanks in issue he placed an order with the defendant and paid the
requested purchase price in two instalments. The witness referred the court to
the quotation of 31 May 2006.
It
is noted that although the quotation did not specifically state that the
underground storage tanks were to be manufactured using 6 mm mild steel plate
thickness both the defendant and the plaintiff were agreed that such material
was to be used. This is confirmed by the subsequent correspondence between the
parties which consistently made reference to the use of this material as well
as the difficulties the defendant encountered in sourcing this material. There
was therefore no argument that the parties had envisaged that this particular
material was to be used in the manufacture of the tanks.
There
was also no argument that on 25 September 2006 the defendant wrote to the
plaintiff advising that the ordered tanks had been manufactured per given
specifications. See the letter under exh. 1 tendered by the plaintiff.
The
plaintiff's position that there was written assurance by the defendant that the
tanks had been manufactured as per specifications was confirmed by the
defendant's representative.
The
defendant's representative sought to justify the non-compliance with the
specifications initially given on the basis that during manufacturing they
realised they had run out of 6 mm steel plate in their stock. It was the
defendant's evidence that having faced this challenge they approached a Mr
Muzondiwa an employee of Total Zimbabwe who authorized them to use the
available material in their stock, viz the 5 mm steel plate.
The
evidence of Douglas Mhikoyamwari Makonese (the defendant's sole witness) even
if it is true is not without difficulty.
Firstly
the status of Mr Muzondiwa from Total Zimbabwe in this whole transaction was
put in issue by the plaintiff who specifically told the court that he did not
know Mr Muzondiwa and that he was a total stranger to the contractual agreement
between the plaintiff and the defendant. The plaintiff was quite categoric that
Mr Muzondiwa could not possibly have acted as the plaintiff's agent in the
contract in issue.
In
the court's view, once the status of Muzondiwa was made an issue it was not
competent for the defendant's representative to speculate on that status or to
try and explain it by 'proxy' as it were. Such an approach was certainly not
going to advance the defendant's case.
It
was incumbent upon the defendant to call Mr Muzondiwa to give evidence and
allow the plaintiff to test that evidence by way of cross-examination. The role
played by Mr Muzondiwa could therefore not have been left to speculation by Mr
Makonese.
It
is abundantly clear to the court that the contract in issue was between the
plaintiff and the defendant and that the alterations allegedly made by the
defendant as a result of the instructions of Muzondiwa (if any) were of no
force or effect. If anything such conduct only serves to confirm there was a
clear breach of contract by the defendant.
In
the absence of the evidence of Mr Muzondiwa it is too far fetched to try and
infer his agency to the plaintiff particularly in the light of the plaintiff's
clear evidence.
More
importantly it is also clear that in the absence of the evidence of Muzondiwa
the court cannot on a balance of probability accept that he authorized any
alterations to the contract entered into by the parties and that when he did so
he was acting as an agent for Total Zimbabwe. This is so because even Total
Zimbabwe itself did not confirm this. In fact if there was need to glean for
further evidence in support of the plaintiff's contention that the manufactured
tanks were in violation of the agreement one would need to go no further than
merely looking at the attitude exhibited by Total Zimbabwe as contained in their
report on the tanks (item 'D' on exh 2, which is the defendant's bundle of
documents). Item 'D' concluded as follows:-
“Recommendations
Based on the above, it is recommended that the
tanks should not be accepted as they do not meet the required design
specifications especially where a 4,5 mm plate was used instead of 6 mm”.
Even
if it is accepted for whatever reason that Mr Muzondiwa authorized the
alteration of the specifications originally agreed upon by the contracting
parties such alterations cannot possibly bind the plaintiff since the plaintiff
has categorically stated that Mr Muzondiwa was never employed as his agent.
There was no attempt made by the defendant to controvert this evidence. The
court therefore accepts the plaintiff's evidence.
Having
accepted that the defendant breached the contractual arrangement between the
parties, the court must therefore consider whether the plaintiff is entitled to
damages as claimed or not at all.
DAMAGES
In
laying the foundation of its claim for damages the plaintiff has presented to
the court a single quotation from D.C. de Sousa (Pvt) Ltd (pages 7-8 of the
exh. 1 of the plaintiff's bundle of documents) and pegged its claim at $72
473-00.
The
quotation from D.C. de Sousa was the only one produced by the plaintiff and for
doing this the plaintiff was severely critisized by the defendant which felt
more quotations should have been produced by the plaintiff to justify its
claim. I will deal with this issue later in my judgment.
At
this juncture I propose to deal with the issues raised by the defendant against
the granting of damages in seriatim.
FAILURE BY THE PLAINTIFF TO PLEAD
THE AMOUNT OF CLAIM IN ITS DECLARATION
It was the defendant's position
through its counsel that the plaintiff, not having pleaded
in its declaration the specific
amount of damages could not be awarded the amount claimed. In other words the
defendant felt the plaintiff's claim was bound to fail on this basis alone.
It
is true that it is most desirable that the trial court should as far as is
reasonably possible adjudicate on those issues that are raised in the pleadings.
This is basically meant to inter alia
assist the court in remaining focussed in its effort to deal with the issues
before it but I think it is an exaggeration to say that this is a rule of
thumb.
The
thrust in insisting on adherence to pleadings is that a party must not be
prejudiced in the conduct of its case by having to deal with issues which would
not have been pleaded.
In
the instant case, it is true that the plaintiff did not specifically plead its
claim for $72 473-00 in its papers but made a general claim for damages in its
declaration. In my view the gap in pleadings was sufficiently canvassed during
the plaintiff's representative's evidence in chief. Documentary evidence in the
form of a quotation from D.C. de Sousa (supra)
was produced and the defendant given a chance to examine and cross-examine on
that exhibit. The defendant made certain observations on the exhibit and
bemoaned the plaintiff's failure to produce more exhibits to give credence to
the amount of claim. More importantly the issue of the plaintiff's entitlement
to damages and quantum thereof was one of the issues, jointly adopted by both
parties at pre-trial conference.
I
strongly believe that in such a situation there can be no question of the
defendant having been prejudiced by the plaintiff's conduct. The defendant had
the opportunity to rebut the plaintiff's quantified damages by bringing to the
fore for consideration its own quotations.
In
the court's view, this is a clear scenario where the court can safely rely on
the provisions of order 1 rule 4c(a).
For clarity's sake the rule is couched as follows:-
“4c The court or judge may, in
relation to any particular case before it or him, as the case may be-
(a) direct, authorize or condone
departure form any provision of these rules ….. where it … is satisfied that the departure is required
in the interests of justice;
(b) ……”
What is clear from the above cited
rule is that this court has greater latitude in
appropriate cases to depart from
blind adherence to rules in the interest of justice.
In
this regard NEWTON THOMPSON J remarked as follows in the case of Vos v Cronje and Duminy
That the court is not bound by the
strict pleadings when the parties themselves have enlarged the issues is beyond
argument (Still v Milner 1937 AD at p
105). In Robinson v Randfontein Estate GM
Co. Ltd 1925 AD at p 198 it was said:
“The object of pleadings is to
define the issues; and the parties will be kept strictly to their pleas where
any departure would cause prejudice or would prevent full enquiry. But
within these limits the court has wide discretion. It seems to me in this
case there was a full enquiry, with the result that the court was placed in possession
of all the facts which would have enabled it to make an award of damages if
such had been asked for” (my emphasis).
Similar
sentiments were echoed in other subsequent decisions. Thus in Collen v Rietifontein Engineering Works
CENTLIVRES JA remarked;
“This court, therefore, has before
it all the materials on which it is able to form an opinion, and this being the
position, it would be idle for it not to determine the real issue which emerged
during the course of the trial. See Still
v Milner (1937, A.D. 101, at p. 105) and the authorities there cited”.
Back home and in the case of Mtuda v Ndudzo
the learned judge GARWE J (as he then was) remarked as follows:-
“These sentiments have been approved
in various other decisions since then. Even where no amendments have been
applied for, both trial courts and courts of appeal have, in appropriate cases,
adjudicated on issues not raised on the pleadings but fully canvassed at the
trial”.
In the light of the evidence led in
this court on how the amount of claim was computed coupled with the various
authorities cited, I am satisfied beyond any shadow of doubt that contrary to
the position held by the defendant, the plaintiff claim though not having been
specifically pleaded is properly before the court and screams for
consideration.
THE ISSUE OF A SINGLE QUOTATION
The plaintiff was critisized for
relying on a single quotation as a way of justifying its claim for damages.
I accept it is desirable that where
possible one must have more than a single quotation but again there must not be
a blind adherence to this requirement. There are occasions when it is not
possible to get other quotations.
In the instant case it was he
plaintiff's uncontroverted evidence that at the time D.C. de Souza (Pvt) Ltd
was the only company which had the capacity to manufacture the tanks in
question to specifications and using the appropriate material. It was precisely
because of this that no any other quotations could be produced. The court
accepts this position as a good reason to bring a single quotation. The
defendant had the opportunity to counter the quotation by bringing other
quotations. Defendant did not do so and must not be allowed to cry foul now.
NON JOINDER OF TOTAL ZIMBABWE (PVT)
LTD
The argument raised by the defendant
was that because Total Zimbabwe had an interest in this matter, its non joinder
was fatal to the plaintiff's case. I do not accept this argument.
The
issue of misjoinder or non joinder of parties is sufficiently covered in our
rules and it is clear that non joinder is not fatal to the case before the
court. For the avoidance of doubt the specific rule provides as follows:
“87 (1) No cause or matter shall be
defeated by reason of the misjoinder or non joinder of any party and the court
may in any cause or matter determine the issues or questions in dispute so far
as they affect the rights and interests of the persons who are parties to the
cause or matter”
In
any event the defendant was not mandated to speak or litigate on behalf Total
Zimbabwe. If Total Zimbabwe felt it had an interest in these proceedings it was
up to it to seek joinder. It did not do so and the court is in a position to
determine the issues in so far as they affect the two litigants.
THE
QUANTUM OF DAMAGES
Having
accepted that the plaintiff is justified to claim damages as a result of breach
of contract and that the claim itself is properly before me I must now focus on
the exact amount which the plaintiff is entitled to.
I
have already indicated that there was no serious challenge raised by the
defendant on the quotation by D.C. de Sousa (Pvt) Ltd as representing the
damages suffered by the plaintiff as a result of the defendant's conduct. I
accept the quotation as it is.
The
plaintiff sought to recover US$72 430 based on the quotation from D.C. de Sousa
(Pvt) Ltd. A close analysis of that quotation shows that the total quotation
adds to US 70 980-30 and not the figure claimed by the plaintiff.
It
will be noted that the summons specifically refer to the defendant's failure to
supply 4 tanks whose capacity and quantities are as follows;
(a)
1
x 10 000 litre underground tank
(b)
1
x 25 000 litre underground tank, and
(c)
2
x 35 000 litre underground tanks.
The quotation from D.C. de Sousa
(Pvt) Limited is silent on the cost of a 10 000m3
tank but makes reference to a 15
000m3 tank which is irrelevant to the proceedings before me. There has been no
attempt by the plaintiff to quantify the cost of a 10 000m3 tank and it is not
the function of this court to do so.
From
the correct global figure of US 70 980-30 will be substracted the figure of
US$12 337-20 giving us a total figure of US$58 643-10 representing the actual
amount of damages established by the plaintiff and to this extent the plaintiff
succeeds in its claim.
Accordingly
it is ordered as follows:-
1.
That
judgment be and is hereby granted in favour of the plaintiff in the sum of
US$58 643-10 with interest thereon from 28 February 2009 to the date of full
payment
2.
That
the defendant should pay costs of suit.
Kentor and Immerman, plaintiff's legal practitioners
Mtombeni
Mkwesha, Muzawazi & Associates,
defendant's legal practitioners
