REPUBLIC
OF NAMIBIA
HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
CASE
NO.: I 118/2012
DATE:
06 NOVEMBER 2013
In
the matter between:
DAVEY’S
MICRO CONSTRUCTION CC..........................PLAINTIFF
And
JUNIAS
NGEDE..............................................................DEFENDANT
Neutral
citation: Davey’s Micro Construction CC v Ngede (I 118/2012)
[2013] NAHCMD 370 (06 November 2013)
Coram: UEITELE
J
Heard: 5-6
November 2013
Delivered:
06 November 2013
Reasons:
Released on 06 December 2013
Flynote:
Practice:
- Trial - Absolution from the instance at close of plaintiff's case -
Test to be applied - Test was whether evidence could or might lead a
Court, applying its mind reasonably, to find for plaintiff - Evidence
to be considered in relation to pleadings and law applicable to
particular case.
Summary:
This is an action, in terms of which the plaintiff instituted action
against the defendant. The plaintiff claims an amount of Seventy-Two
Thousand, Nine Hundred and Fifty-eight Namibian Dollars and Fifty
Cents (N$72,958.50) in respect of work done and materials delivered.
The
defendant, defended the action and filed his plea. The defendant also
instituted a counterclaim. The basis of his counterclaim is that the
plaintiff used inferior or defective material to renovate the house
of the defendant and failed to do the work in a professional and
workmanlike manner. Defendant further claims that he did not accept
the defective work of the plaintiff and on 23 August 2011 in writing
cancelled the agreement with immediate effect. The defendant thus
claimed an amount of N$103 924, 11 from the plaintiff.
Mr
Tjituri who appeared for the plaintiff closed the plaintiff's case,
after he had called four witnesses to testify, whereupon Mr Grobbler
who appeared for defendant applied for absolution from the instance.
Held
that when absolution from the instance is sought at the end of the
plaintiff's case, the test to be applied is not, whether the evidence
led by the plaintiff established, what would finally be required to
be established, but whether, there is evidence upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should or ought to) find for the plaintiff.
Held
further that, pleadings are supposed to elucidate and define the
issues between the parties and not obfuscate them so as to leave
either the parties or the Court to guess at what the true issues are.
Held,
further that the particulars of claim do not comply with the
requirements of Rule 18(4) which reads that: ‘every pleading
shall contain a clear and concise statement of the material facts
upon which the pleader relies for his claim, defence or answer to any
pleading, as the case may be, with sufficient particularity to enable
the opposite party to reply thereto.’
Held,
further that the plaintiff failed to prove that, he is entitled to an
additional amount of N$ 72 958-50 over and above the amount of N$ 45
000 that he received.
Held,
further that there is no admissible evidence on record that, the
plaintiff performed work to the value of N$ 18 000 between 12 August
2011 and 18 August 2011. Furthermore, there is no indication, that
the value of the material left at the site by the plaintiff is N$ 54
000. For all these reasons no reasonable Court could or might give
judgment in plaintiff's favour and absolution from the instance is
thus granted with no order to costs.
Held,
that the defendant has to pay the plaintiff’s cost in respect
of the counterclaim which it withdrew in terms of Rule 42 (1) of this
court’s rules.
ORDER
1.
That absolution from the instance is granted, but I make no order as
to costs.
2.
The Court accepts the defendant’s withdrawal of his
counterclaim, but the defendant is ordered to pay plaintiff’s
costs.
JUDGMENT
UEITELE,
J
INTRODUCTION
[1]
In this matter the defendant has applied for absolution from the
instance at the end of the plaintiff's case. The plaintiff is
represented by Mr Tjituri and the defendant is represented by Mr
Grobler.
[2]
I find it is necessary to set out the material allegations in the
pleadings before, I analyze the evidence adduced by and for
plaintiff. On 17 January 2012 the plaintiff commenced proceedings
against defendant for-
(a)
payment of the amount of N$72 958-50;
(b)
payment of interest on the amount of N$72 958-50 at the rate of 20%
per annum a tempore morae;
(c)
costs of suit.
THE
PLEADINGS
[3]
In its particulars of claim, plaintiff alleged that on 27 April 2011,
it provided the defendant with a written quotation for the renovation
of the defendant’s house situated at erf 1303 Delta Street,
Khomasdal, Windhoek. The quotation provided for the following work (I
quote verbatim from the particulars of claim):
‘Cement
Work:
4.1
Extended boundary wall (5.4 X 1.2), build cover wall for sliding
gate, extend front face wall; building binding wall at braai area for
sliding door; plaster on side upper side of boundary wall; repair all
interior cracks; insert 110 pcv piping for water drainage on front
boundary wall; laying of interlocks on open area.
Roofing
4.2 Iibr
roofing for car port area, facer, down pipe and gutters to be
replaced and fitted; replace damaged cornices in toilet.
Plumbing
4.3
Insert copper piping for water supply to zinc in outside cottage.
Electrical
4.4
Electrical supply to outside lights at car port; electrical supply to
garage and sliding gate.
Plumbing
4.5
Painting of exterior boundary wall where not painted; painting of new
cornices and wall where not painted and repaired.
Tiling
4.6
Tiling of main bedroom toilet roof level, tiling of in house toilet
to roof level and tiling of kitchen wall 1.8 m in height.
Carpentry
4.7
Build in cupboards in main bedroom to be extended; one side in
cupboard inside kitchen fit and supply; build in cupboard in small
room.
Steelwork
4.8
Company supply and install a garage door (electrical); steel sliding
gate to be fixed and electrical; inserted sliding door of 3m at braai
area; insert build in stove.’
[4]
The plaintiff alleged furthermore that-
(a)
it was a specific term of the quotation that, the labour provided and
the material needed for the work set out in the quotation will be
provided by the plaintiff to the defendant at an amount of N$ 150
522;
(b)
the defendant accepted the quotation on 27 April 2011 and requested
the plaintiff to proceed with the work and undertook to pay the
plaintiff the amount of N$ 150 522 on completion of the work. The
plaintiff commenced with the work on 25 July 2011.
(c)
upon plaintiff arriving on site he performed the following work;
inserted 110 pvc pipe for water drainage in front of the boundary
wall ; laid interlocks in an open area; replaced damage cornices in
the toilet; inserted copper piping for water supply in zinc in the
outside cottage; provided the electric supply to the outside lights
at the car port; an electric supply to garage door; painted the
exterior boundary walls; painted the cornices; tiled the kitchen wall
to 1.8 in height; supplied all carpentry material; supplied and
installed Coroma garage door and supplied material for sliding door
of 3m at braai area.
[5]
The plaintiff furthermore alleged that, on 23 August 2011 the
defendant informed the plaintiff that there was certain work that he
would do himself and that, the plaintiff should halt the work and
provide the defendant with its final invoice. The plaintiff provided
the defendant with an invoice of N$ 72 958-50, which the defendant
has failed to pay.
[6]
On 25 April 2012 the defendant pleaded to the plaintiff’s
particulars of claim and simultaneous with the plea filed a counter
claim. The essence of the plea is that the defendant admitted receipt
and acceptance of the quotation and the request for the plaintiff to
proceed with the work as quoted. The defendant, however, alleged that
the plaintiff used inferior or defective or both inferior and
defective material and also failed to perform the work in a
professional and workmanlike manner. As a result of that he
cancelled the agreement and ordered the plaintiff to leave the site.
[7]
The essence of the defendant’s counterclaim is that the
plaintiff accepted the cancellation of the agreement between it and
the defendant. Defendant furthermore alleged that as a result of the
use of the inferior or defective or both inferior and defective
material by the plaintiff and poor workmanlike work, he engaged
another contractor, who completed the work in a professional manner
at a cost of N$103 924-11. He thus claimed that amount from the
plaintiff as damages he allegedly suffered.
THE
EVIDENCE
[8]
The plaintiff called four witnesses. The first to testify was a
certain Mr Shilunga, who is the managing member of the plaintiff. He
testified that-
(a)
during April 2011, he representing the plaintiff and the defendant
acting in his personal capacity entered into an agreement for the
renovation of the defendant’s house.
(b)
the plaintiff purchased super bricks, sand, gray stones, brick force
and cement. Plaintiff thereafter completed building work, extended
the cover wall, build binding wall, and filled existing cracks in the
walls;
(c)
plaintiff inserted gutters, replaced damaged cornices in the toilet,
completed the roofing of the house;
(d)
after completing the tilling work he, on behalf of plaintiff,
requested progress payment. The defendant consented to the progress
payment and on 06 August 2011, Standard Bank Namibia (Pty) Ltd went
to the site, valued the work performed and on 11 August 2011 paid out
an amount of N$ 45 000; and
(e)
he did not insert the copper piping because he was told by the
defendant to leave the site. He further testified that he did not
supply the material.
[9]
Mr Shilunga further testified that, after the evaluation was done and
first payment effected the plaintiff still performed other functions
such as plastering of the boundary wall, completion of the front face
door, steel wall roof and build in braai. He testified that it was
while, the plaintiff was busy with these works, that it was ordered
off the site. He testified that the plaintiff obliged and left the
site. He testified that when the plaintiff left the site, it left all
the material (such as cement, sand, sliding door, super bricks all
the material for the build in cupboards, down pipes, drain pipe
fitting and pva under coat paint) that, it purchased and brought to
the site on the site. He later sent an invoice for the amount N$ 72
958-50, in respect of the work performed after the first progress
payment and for the material left on site, to the defendant.
[10]
Under cross examination Mr Shilunga was asked, how the amount of N$
72 958-50 was arrived at. He referred to the invoices that he
submitted as evidence of the material that, he purchased and replied
that the cost of the material was N$ 54 000 and the cost of labour N$
18 000.
[11]
The second witness to testify on behalf of the plaintiff was a
certain Simon Shikongo, who testified that he is contractor
specializing in tiling. He furthermore testified that he was supplied
with all the necessary materials such as cement, tiles and grout for
him to commence with his work by Mr Shilunga on behalf of plaintiff.
He furthermore testified that, by June of 2011, he commenced with his
work and by the end of July 2011, he had completed the tilling of the
main bedroom, the toilet, the two bedrooms floor and the common
toilet and left out the kitchen, as the cupboards were not yet
installed.
[12]
Mr Shikongo furthermore testified that, during the tilling process of
the toilets, it became clear that the tiles were big and would not
fit under the toilets basins without being cut into pieces. He
testified that, he discussed the issue with the defendant and
suggested to the defendant that, the tilling must be left below the
basins holder or the basins be removed to enable proper tilling to be
done but the defendant insisted that, he should go ahead and tile the
broken pieces underneath the water basins, as according to him “it
was underneath and no one will see it”. Mr Shikongo proceeded
to testify that, on the instructions of the defendant, he proceeded
to tile with the broken tiles and after he had finished with the
tilling in the toilet, he examined the tiles and was satisfied that,
they could be left as they are. He admitted, however, that on the
face of it, the tilling work underneath the basins in the toilets
looks sloppy.
[13]
The third witness to testify on behalf of the plaintiff was a certain
Angelo Helmut. He testified that, he has at least 8 years of
experience in the Construction Industry, having been employed and
worked as a Quantity Surveyor at Murray & Roberts (Namibia) Ltd
and Roads Contractor Company Ltd over those years. Further that, he
is therefore duly qualified to give expert opinion on the quality of
materials supplied, the quality of the structure of the building and
assessing if appropriate skills had been deployed in the building. He
testified that, in connection with this matter, he had not personally
visited the site and has not seen the material used on the site and
specifically cannot say much about the standard of work exhibited on
the property in question.
[14]
In view of the evidence by this witness that, he did not visit the
building site, I do not find his evidence to be helpful to the
resolution of the dispute before me and will therefore not repeat the
bulk of his evidence.
[15]
The fourth witness to testify on behalf of the plaintiff was a
certain Erikson Matheus who testified that-
(a)
during June or July 2011, he was privately approached and hired by Mr
Shilunga on behalf of the plaintiff to install cupboards at the
house of the defendant;
(b)
the plaintiff again through Mr Shilunga bought wood boards ( he
testified that he accompanied Mr Shilunga to buy the material) from
which, the cupboards were to be made and those material were
delivered at the building site (i.e. erf 1303 Delta Street,
Khomasdal, Windhoek);
(c)
towards the end of August 2011, he observed that, most of the persons
working for the plaintiff left the site. The defendant, however,
requested him to remain behind on site;
(d)
the defendant instructed him to complete the work on the cupboards.
Mr Matheus furthermore testified that, after he completed installing
the cupboards, the defendant inspected the work and after he
(defendant) was satisfied with the quality of the work, he paid him
(Matheus) for the work that he had done.
APPLICATION
FOR ABSOLUTION FROM THE INSTANCE
[16]
Mr Tjituri closed plaintiff's case, after he had called the four
witnesses to testify, whereupon Mr Grobbler applied for absolution
from the instance (argued his case) and Mr Tjituri replied thereto.
After that, I granted absolution from the instance. I will pause here
to briefly give reasons for my decision.
[17]
In Claude Neon Lights (SA) Ltd v Daniel 1
the Court of Appeal held that, when absolution from the instance is
sought at the end of the plaintiff's case, the test to be applied is
not whether the evidence led by the plaintiff established what would
finally be required to be established, but whether there is evidence
upon which a Court, applying its mind reasonably to such evidence,
could or might (not should or ought to) find for the plaintiff. This
test has been approved and applied in a line of cases by this Court
and the Supreme Court.2
In Tutaleni Peter Reinholdt Shiimi v Mutual and Federal Insurance
Company of Namibia3
Frank, AJ said-
‘…I
do not at this stage have to decide whether he has established a
prima facie case in the sense that I would have to if the defendant
had also closed it’s case (which it did not do). At this stage
I take the evidence produced on behalf of the plaintiff at face value
and decide whether based thereon if “there is evidence upon
which a reasonable man might find for the plaintiff.’
[18]
Levy, J said 4
the phrase 'applying its mind reasonably' requires the Court not to
consider the evidence in vacuo but to consider the admissible
evidence in relation to the pleadings and in relation to the
requirements of the law applicable to the particular case.
[19]
Mr Grobler contends that the plaintiff has failed to discharge its
burden of proof, thereby entitling the defendant to absolution. To
bolster his contention, he submits, that the plaintiff has failed to
establish, on a prima facie basis, that:
(a)
he is entitled to an additional amount of N$ 72 958-50 over and above
the amount of N$ 45 000 that he received;
(b)
the plaintiff failed in any event to plead that, he was entitled to
claim N$72 958-50 over and above the amount of N$45 000-00 that, he
received;
(c)
the plaintiff failed to plead in its particulars of claim that, it
was entitled to be compensated for material he left on the site;
(d)
the plaintiff failed to specify the material and the value of the
material.
[20]
On the contrary, Mr Tjituri, argues that, prima facie, the plaintiff
has discharged its onus of proof, because the plaintiff had proven
that, an agreement was concluded between the parties, that the
plaintiff has pursuant to the agreement performed work for the
defendant and that, the plaintiff had purchased certain building
material which he left on site, after he was ordered to leave the
site. He further argued that, the defendant testified that, the value
of the labour expended by the plaintiff was N$ 18 000 and the value
of the material was N$ 54 000, as could be established from the
receipts which the plaintiff submitted as exhibits.
[21]
Before, I deal with the merits or demerits of both Mr Tjituri and Mr
Grobbler’s submissions, I find it appropriate to repeat the
remarks that, have been made in this court as regards the purpose of
pleadings. In Makono v Nguvauva5
Frank, AJ remarked that:
‘To
start off, pleadings are supposed to elucidate and define the issues
between the parties and not obfuscate them so as to leave either the
parties or the Court to guess at what the true issues are. Thus, the
following has been said in this regard.
“1.
The plaintiff shall state in concise terms what facts he intends to
rely on and to prove and the defendant shall do the same so that on
the day of trial neither party shall be taken by surprise and that it
may not be necessary to have the case adjourned, thereby causing
wasted expense to both litigants from which the State and the lawyers
alone derive profit. It has therefore often been stated by our
courts, and it cannot be too often stated, that the object of
requiring the parties to file pleadings is to enable each side to
come to trial prepared to meet the case of the other. (Benson and
Simpson v Robinson 1917 WLD 126.)
2.
The purpose of pleadings is to define the issues in the litigation
and to enable the other party to know what case he has to meet. A
litigant is not entitled to conceal material allegations in order to
obtain the advantage of placing the onus on his opponent. The onus
must be determined on genuine and not artificial allegations in the
pleadings and if the onus should be on a particular party he must
accept it. Litigation is not a game where a party may seek tactical
advantages by concealing facts from his opponents and thereby
occasioning unnecessary costs. Nor is a party entitled to plead in
such a manner as to place the onus on his opponent if the facts as
known to the pleader place the onus on him. (Nieuwoudt v Joubert 1988
(3) SA 84 (SE) at 84I - 85A).”
[22]
In the present matter the plaintiff claims an amount of N$ 72 958-50
for work allegedly performed in terms of contractual obligation, but
without amending its particulars of claim the plaintiff testified
that, the amount consists of a portion( N$ 54 000) of material
supplied and left on the site. I must state that, the particulars of
claim do not comply with the requirements of Rule 18(4) which reads
as follows:
'Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim, defence or answer
to any pleading, as the case may be, with sufficient particularity to
enable the opposite party to reply thereto.'
[23]
I now turn to the merits of the case. For plaintiff to succeed, it
must show that,it performed work and delivered material to the value
of N$ 72 958-50. Plaintiff has the onus of proof in this regard,
which it must discharge on a balance of probabilities. According to
plaintiff, it agreed to perform work and deliver material worth N$
150 522. The plaintiff further testified that, it performed work and
delivered material to the building site and that on 11 August 2011,
it was paid an amount of N$ 45 000 for the work and material
delivered but, the plaintiff did not break down the amount to
indicate how much was in respect of the material and how much was in
respect of labour. On 18 August 2011, the defendant terminated the
agreement and ordered the plaintiff to leave the site.
[24]
The plaintiff did not testify how many hours he spent on the work,
after he received payment of the amount of N$45000 on 11 August 2011.
He also did not testify as to the value of the material he left
behind on the site, after he was ordered to leave the site. The
plaintiff submitted receipts of material it purchased, the total
amount of the receipts that, the plaintiff submitted in evidence
amounted to approximately N$ 29 000 but it could not explain whether
that, amount was included in the amount of N$ 45 000 which was paid
to it on 11 August 2011. As regards the amount of N$ 18 000 the
plaintiff did not explain what the agreed rate of labour was.
[25]
I have no difficulty in finding merit in Mr Grobbler’s
submission to the effect that, the plaintiff failed to prove that, he
is entitled to an additional amount of N$ 72 958-50 over and above
the amount of N$ 45 000 that he received; the plaintiff failed to
plead in its particulars of claim that, it was entitled to be
compensated for material he left on the site; the plaintiff failed to
specify the material and the value of the material that he left on
site.
[26]
To sum up, there is no admissible evidence on record that, the
plaintiff performed work to the value of N$ 18 000 between 12 August
2011 and 18 August 2011. Furthermore, there is no indication, that
the value of the material left at the site by the plaintiff is N$ 54
000. For all these reasons, no reasonable Court could or might give
judgment in plaintiff's favour.
COSTS
AND DEFENDANT’S COUNTERCLAIM
[27]
The basic rule is that, except in certain instance where legislation
otherwise provides, all awards of costs are in the discretion of the
court. 6
It is trite that, the discretion must be exercised judiciously with
due regard to all relevant considerations. The court's discretion is
a wide, unfettered and equitable one 7.
There is also, of course, the general rule, namely that costs follow
the event, that is, the successful party should be awarded his or her
costs. This general rule applies unless there are special
circumstances present.8
[28]
In the present matter, the only issue which the plaintiff failed to
prove is the amount of N$ 72 958-50 which he claimed. There is
evidence that, he left some material which he bought on the site, the
evidence further indicates that, Simataa Building & Renovation
used some of that material to complete the project. I am therefore of
the view that, it is just fair and equitable not to mulct the
plaintiff with a cost order.
[29]
After I granted the absolution from the instance Mr Grobler indicated
that the defendant withdraws its counterclaim. I indicated that, the
court will grant leave to the defendant to withdraw its counterclaim
but, the defendant has to pay the plaintiff’s cost in respect
of the counterclaim which it withdrew. My reason for that order is
based on the provisions, Rule 42 (1) of this court’s rules
reads as follows:
‘42.
(1)(a) A person instituting any proceedings may at any time before
the matter has been set down and thereafter by consent of the parties
or leave of the court withdraw such proceedings, in any of which
events he or she shall deliver a notice of withdrawal and may embody
in such notice a consent to pay costs, and the taxing master shall
tax such costs on the request of the other party.
(b)
A consent to pay costs referred to in paragraph (a), shall have the
effect of an order of court for such costs.
(c)
If no such consent to pay costs is embodied in the notice of
withdrawal, the other party may apply to court on notice for an order
for costs.’
[30]
In the result I make the following order:
1.
The application for absolution from the instance is granted, but I
make no order as to costs.
2.
The defendant is granted leave to withdraw its counterclaim, but is
ordered to pay the plaintiff’s cost in respect of the
counterclaim which it withdrew.
SFI
Ueitele
Judge
APPEARANCES
PLAINTIFF: Mr
M Tjituri
Of Tjituri Law
Chambers
DEFENDANT: Mr
Z J Grobler
Of Grobler & CO
2See
Bidoli
v Ellistron t/a Ellistron Truck & Plant
2002 NR 451 (HC); Absolut
Corporate Services (Pty) Ltd v Tsumeb Municipal Council and Another
2008 (1) NR 372 (HC) Stier
v Henke
2012 (1) NR 370 (SC) at 373 para [4]; Aluminium
City CC v Scandia Kitchens & Joinery (Pty) Ltd
2007 (2) NR 494 (HC) at 496 [12]; Lofty
Eaton v Grey Security Services Namibia (Pty) Ltd
2005 NR 297 (HC) at 302 C – E.
3An
unreported judgment of this Court case No. (P) I 2269/07.
4Supra
footnote 1 at 453.
6See
Hailulu
v Anti-Corruption Commission and Others and
China
State Construction Engineering Corporation (Southern Africa) (Pty)
Ltd v Pro Joinery CC 2007
(2) NR 674.
7See
Intercontinental
Exports (Pty) Ltd v Fowles 1999
(2) SA 1045.
8See
China
State Construction Engineering Corporation (Southern Africa) (Pty)
Ltd v Pro Joinery CC 2007
(2) NR 674.