7
REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: HC-MD-CIV-ACT-CON-2023/01782
In the matter between:
MULTI COOLING CC PLAINTIFF
and
NAMI PREFABRICATED HOUSING CC DEFENDANT
Neutral Citation: Multi Cooling CC v Nami Prefabricated Housing CC (HC-MD-CIV- ACT-CON-2023/01782) [2025] NAHCMD 46 (14 February 2025)
CORAM: MILLER AJ
Heard: 2 October 2024
Delivered: 14 February 2025
Flynote: Civil procedure – Contract law – Absolution from the instance – The defendant and the plaintiff were unable to agree on a price –The defendant insisted on a price specified in the bill of quantities to be reduced to a substantially lower price – In the result, the plaintiff was not appointed as a sub-contractor in view of the failure to agree upon a price for the work to be done – The probabilities favour the evidence of Mr Tenete and the court prefers his version over that of Mr De Wet.
Summary: The plaintiff instituted proceedings against the defendant in an action in which it claims payment in the amount of N$ 516 525.22, calculated at 20 per cent from the date of judgment and costs of suit. During August 2021 and at Windhoek, the plaintiff duly represented by its managing member and the defendant duly represented by its managing member entered into a verbal sub-contracting agreement. The parties would submit a joint bid for the construction of the proposed Covid-19 isolation ward additions at Katutura hospital for the Ministry of Health and Social Services.
Held that: the plaintiff took no further action at that stage. Instead, it was delayed until the work was finalized before it instituted action. Prima facie which is a clear indication that the plaintiff accepted the fact that it would not be appointed as a sub-contractor. This issue was pertinently raised during the course of the trial. Mr De Wet explained that the plaintiff was not aware of the fact that the plaintiff was not appointed at the time. He claims that he only became aware of that fact once the work was completed. His evidence in this regard stands in dispute by Mr Tenete. The latter claims that the plaintiff had knowledge of the fact at an early stage and long before the work commenced.
Absolution form the instances is granted.
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ORDER
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1. I grant absolution form the instance.
2. The plaintiff must pay the defendant costs which will include the cost of one instructing and one instructed counsel.
3. The matter is finalised and removed from the roll.
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JUDGMENT
___________________________________________________________________
MILLER AJ:
Background
The plaintiff instituted proceedings against the defendant in an action in which it claims the following relief:
‛1. Payment in the amount of N$ 516 525.22.
2. Interest calculated at 20% from the date of judgment.
3. costs of suit.’
The basis of the claim is set out in paragraph 5 of the plaintiff's particulars of claim and reads as follows:
‛5.1 That the parties will submit a joint bid for the proposed covid-19 isolation ward additions for the construction of the proposed covid-19 isolation ward additions at Katutura hospital for the Ministry of Health and Social Services.
5.2 That the defendant shall be the main contractor in as far as the aforementioned bid is concerned.
5.3 That the plaintiff shall be the sub-contractor for the provision of ventilation installations for the proposed covid-19 isolation ward additions at Katutura hospital for the Ministry of Health and Social Services.
5.4 That the parties will engage one another as main contractor and sub-contractor in the event where the defendant emerges successful in the bidding process.
5.5 That the defendant shall use the services of the plaintiff for the provision of ventilation as stated above in the event where the defendant emerges as a successful bidder.
5.6 That the plaintiff shall and in accordance with the schedule of rates and bill of quantities, issue the defendant with an invoice for work done on the proposed covid-19 isolation ward additions at Katutura hospital for the Ministry of Health and Social Services.
5.7 That in preparation of this bid, the plaintiff shall provide the defendant with the plaintiff’s documentations, which relate to the bids eligibility criteria, technical specifications, bill of quantities, schedule of rates for variations and further documents relating to the registration certificate of the plaintiff, tax certificate of the plaintiff, goodstanding social security certificate of the plaintiff and the plaintiff’s profile which documents were to be used in the compilation of the defendant’s bid documents.’
The matter become defended. During the course of the trial, I heard the evidence of Mr De Wet, Mr Tenete and Mr Nangombe. The plaintiff then closed its case.
The defendant now applies for absolution from the instance. The approach I should adopt is trite and set out in the matter of Stier v Henke.1 In essence, it amounts to a determination whether in the evidence tendered, a reasonable court could or might find for the plaintiff.
The evidence disclosed that the Ministry of Health and Social Services advertised a tender for the construction of a Covid-19 isolation ward at the Katutura Hospital. The defendant, submitted a bid in response and was ultimately awarded the tender. A portion of the tender required the installation of air-conditioning equipment. The defendant approached the plaintiff with a request to prepare a bill of quantities for that portion of the work. In return, it promised to appoint the plaintiff as the sub-contractor. The plaintiff complied with the defendant’s requests and in due course provided the defendant with the required specification, and a bill of quantities and other relevant documents. These were included and formed part and parcel of documents submitted to the relevant Ministry.
Consequent upon the award of the tender to the defendant, the plaintiff and the defendant entered into further discussion regarding the engagement of the plaintiff as sub-contractor. The defendant and the plaintiff were unable to agree on a price. The defendant insisted that a price specified in the bill of quantities should be reduced to a substantially lower price.
In the result the plaintiff was not appointed as a sub-contractor in view of the failure to agree upon a price for the work to be done.
The plaintiff took no further action at that stage. Instead it was delayed until the work was finalized before it instituted action. Prima facie this is a clear indication that the plaintiff accepted the fact that it would not be appointed as a sub-contractor. This issue was pertinently raised during the course of the trial. Mr De Wet explained that the plaintiff was not aware of the fact that the plaintiff was not appointed at the time. He claims that he only became aware of that fact once the work was completed. His evidence in this regard stands in dispute by Mr Tenete. The latter claims that the plaintiff had knowledge of the fact at an early stage and long before the work commenced.
The probabilities favour the evidence of Mr Tenete and I prefer his version over that of Mr De Wet.
What it all amounts to in the end, is that despite, earlier promises, ultimately the parties were ad idem that the plaintiff would not be appointed as the sub-contractor.
It follows that the facts extinguish the plaintiff's claim.
I accordingly grant the following orders:
1. I grant absolution form the instance.
2. The plaintiff must pay the defendant’s costs which will include the cost of one instructing and one instructed counsel.
3. The matter is finalised and removed from the roll.
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K MILLER
Acting Judge
APPEARANCE
Plaintiff: K Amoomo
Of Kadhila Amoomo Legal Practitioners., Windhoek
Defendant: P Kauta
Instructed by Ndaitwah Legal Practitioner., Windhoek
1 Stier v Henke 2012 (1) NR 370.