Rivoli Namibia (Pty) Ltd v CMC/Otesa Joint Venture (HC-MD-CIV-ACT-CON-2018/01186) [2019] NAHCMD 152 (17 May 2019);

Group

Headnote and flynote
Flynote: 

Exception ‒ Defendant arguing that plaintiff’s particulars of claim do not disclose cause of action, alternatively are vague and embarrassing ‒ General principles regarding exceptions considered.

Headnote and Holding: 

The plaintiff instituted a claim for specific performance alternatively for damages, as result of an alleged breach of contract.  The defendant excepted to the plaintiff’s particulars of claim on the basis that same do not disclose a cause of action in that same lack the necessary allegations to sustain a cause of action, alternatively that same are vague and embarrassing.  The court finding, generally, that particulars of claim disclosed cause of action.

Full judgment

ORDER


1.      The defendant’s first ground of exception to the plaintiff’s particulars of claim is dismissed with costs, such costs are ordered to include costs of one instructing and two instructed legal practitioners up to the preparation of heads of argument and include costs of one instructing and one                 instructed legal practitioner in respect of the hearing.

2.      The defendant’s second ground of exception to the plaintiff’s particulars of claim is dismissed with costs, such costs are ordered to include costs of one instructing and two instructed legal practitioners up to the preparation of heads of argument and include costs of one instructed and one            instructing legal practitioner in respect of the hearing.

3.      The defendant’s third ground of exception to the plaintiff’s particulars of claim is dismissed with costs, such costs are ordered to include costs of one instructing and two instructed legal practitioners up to the preparation of the heads of argument and include costs of one instructed and                 one  instructing legal practitioners in respect of the hearing.

4.      The defendant’s fourth ground of exception is upheld with costs, such costs are ordered to include costs of one instructing and two instructed legal practitioners.

5.      As regard the fourth ground of exception, the plaintiff is afforded opportunity to amend its particulars of claim within 15 days from the date of this order;

6.      The matter is postponed to 24 July 2019 at 15:15 for Case Planning Conference.

7.      The parties are directed to file a case plan on or before 18 July 2019.


RULING: EXCEPTION


USIKU, J:

Introduction

[1]        This is an exception by the defendant to the plaintiff’s amended particulars of claim on the basis that they either do not disclose a cause of action or they lack the necessary allegations to sustain a cause of action for the relief for specific performance and/or for the alternative relief of damages, alternatively are vague and embarrassing.

[2]        In its amended particulars of claim, the plaintiff set out two claims, namely claim A and claim B, each based on agreement allegedly concluded by the parties.  In respect of claim A the plaintiff seeks specific performance, and has set out two alternative claims.  In the first alternative claim to claim A, the plaintiff claims for cancellation of the agreement and damages in the event that the court refuses specific performance. In the further alternative, in the event that the court finds that the parties did not conclude a contract, the plaintiff seeks damages based on defendant’s alleged negligent misrepresentation.

[3]        In regard to claim B, the plaintiff seeks specific performance, and in the alternative, in the event the court refuses specific performance, the plaintiff seeks an order for cancellation of the agreement and damages.

Background

[4]        In February 2017, the plaintiff instituted an action (“the first action”) against the defendant.  The defendant raised several grounds of exception to the plaintiff’s particulars of claim.  One of the grounds of the exception was that the plaintiff may not in law approbate and reprobate.  On the 09 October 2017, the court found that on the documents and pleadings relied on by the plaintiff for its claim, the plaintiff had elected to claim for specific performance and had also elected to accept an alleged repudiation by the defendant and cancel the agreement and claim for damages.  After analysing several decided authorities, the court held that the plaintiff could not in law approbate and reprobate.  The court upheld the exception and granted the plaintiff leave to amend its particulars of claim if so advised.[1]

[5]        Following the above ruling, the plaintiff withdrew its action against the defendant.  In March 2018, the plaintiff instituted the present action against the same defendant.  The defendant raises four grounds of exception to the plaintiff’s particulars of claim.

The defendant’s grounds of exception

First ground of exception

[6]        The defendant argues that the plaintiff claims for specific performance despite its prior election in the “first action” to accept the alleged repudiation and claim for damages.  The dispute whether plaintiff can approbate and reprobate is res judicata, alternatively issue estoppel and plaintiff may not now be suited in respect of damages and in respect whereof the court non-suited the plaintiff in the first action.  The defendant further contends that, in light of the plaintiff’s election to accept defendant’s alleged repudiation in the first action, the plaintiff is non-suited to claim specific performance in this action.  The defendant invites this court to take judicial notice of what has been stated in the pleadings in the first action for the purpose of this exception.  The defendant therefore argues that the plaintiff’s particulars of claim (as amended) are excipiable as they lack averments necessary to sustain a cause of action.

Second ground of exception

[7]        The defendant argues that, the additional alternative claim to claim A is based on a delict in circumstances where the court finds that a contract does not exist.  According to the defendant, the plaintiff alleges the same set of facts and circumstances relied upon for the contract as same as those to be relied upon to establish delict.  The actio legis acquiliae, the defendant contends, is not available to the plaintiff under the circumstances.  Therefore, the defendant contends, the plaintiff’s particulars of claim (as amended) are excipiable as they lack averments necessary to sustain a cause of action, alternatively are vague and embarrassing.

Third ground of exception

[8]        In regard to this ground of exception the defendant argues that the plaintiff’s further alternative claim is based on alleged misrepresentation, which misrepresentation could only have commenced from 25 April 2016 onwards. It is unclear on what basis in law the plaintiff is claiming the damages it is claiming, absent any allegation when and over what period the damages were incurred.

[9]        The defendant further contends that the plaintiff has made insufficient allegations to enable the defendant to know for what period the plaintiff is claiming damages and how the amount claimed is computed and arrived at.  As a result, the defendant argues that the plaintiff’s particulars of claim are excipiable as they lack averments necessary to sustain a cause of action, alternatively are vague and embarrassing.

Fourth ground of exception

[10]      In its fourth ground of exception the defendant contends that the plaintiff in support of claim A, relies on a partly oral and partly written agreement, annexures “RN1” to “RN4” comprising written portions of the alleged agreement.  Annexure “RN2” incorporates a “subcontract agreement” into the alleged agreement as being “back to back”.  The subcontract agreement referred to in annexure “RN2” is not annexed to plaintiff’s particulars of claim nor are the terms thereof pleaded by the plaintiff.  As a result, the defendant argues, the plaintiff’s particulars of claim are vague and embarrassing and hence excipiable.

The legal principles

[11]      The legal principles regarding exceptions were succinctly set out in Van Straten and Another v Namibia Financial Institutions Supervising Authority and Another 2016 NR 747 SC in the following terms:

‘[18]     Where an exception is taken on the grounds that no cause of action is disclosed or is sustainable on the particulars of claim, two aspects are to be emphasized.  Firstly, for the purpose of deciding the exception, the facts as alleged in the plaintiff’s pleadings are taken as correct.  In the second place, it is incumbent upon an excipient to persuade this court that upon every interpretation which the pleading can reasonably bear, no cause of action is disclosed.  Stated otherwise, only if no possible evidence led on the pleadings can disclose a cause of action, will the particulars of claim be found to be excipiable.

[19]      Whether an exception on the ground of being vague and embarrassing is established would depend upon whether it complies with rule 45(5) of the High Court Rules.  This rule requires that every pleading must contain a clear and concise statement of the material facts on which the pleader relies for his or her claim with sufficient particularity to enable the opposite party to identify the case that the pleading requires him or her to meet.  Assessing whether a pleading is vague and embarrassing is now to be undertaken in the context of rule 45 and the overriding objective of judicial case management.  Those objectives include the facilitation of the resolution of the real issues in dispute justly and speedily, efficiently and cost effectively as far as practicable by saving costs by, among others, limiting interlocutory proceedings to what is strictly necessary in order to achieve a fair and timely disposal of a cause or matter.

[20]      The two-fold exercise in considering whether a pleading in vague and embarrasing entails firstly determining whether the pleading lacks particularity to the extent that it is vague.  The second is determining whether the vagueness causes prejudice.  The nature of the prejudice would relate to an ability to plead to and properly prepare and meet an opponent’s case.  This consideration is also powerfully underpinned by the overriding objects of judicial case management in order to ensure that the real issues in dispute are resolved and that parties are sufficiently apprised as to the case that they are to meet.’

[12]      The aforegoing principles apply with equal force to the present matter.

Application of the legal principles to the present matter

[13]      In regard to the first ground of exception, the defendant argues that, the plaintiff having elected to accept the defendant’s alleged repudiation in the first action, the plaintiff is non-suited to claim specific performance in the present action.

[14]      I am of the opinion that, in the first action the court was faced with the facts where the plaintiff indicated that it had accepted defendant’s alleged repudiation and claimed damages.  The court was also faced with facts that the plaintiff had elected to seek specific performance.  The court, therefore, upheld the exception in the first action, on that basis, and afforded the plaintiff opportunity to amend, if so advised.   The facts that faced the court in the first action are not the same facts insofar as “approbating and reprobating” are concerned, in the present action.

[15]      I do not understand the ruling of the court in the first action as constituting a bar to plaintiff electing in future to claim for specific performance.  The defendant’s first ground of exception, therefore, stands to be rejected for that reason.

[16]      Insofar as the second ground of exception is concerned, the plaintiff’s further alternative claim to claim A is based on alleged negligent misrepresentation.[2]  The set of facts and circumstances that the plaintiff relies upon are set out in paragraphs 17 to 24 of the particulars of claim (as amended).In those paragraphs, the plaintiff alleges:

(a)       misrepresentation of certain facts allegedly by the defendant;[3]

(b)       intending plaintiff to rely on facts misrepresented;[4]

(c)        without reasonable grounds for believing the misrepresented facts be true;[5]

(d)       ignorance of the truth and justifiable reliance thereon by party to whom misrepresentation was directed;[6] and

(e)       damages[7]

[17]      I do not, therefore, agree with the defendant that the plaintiff’s additional alternative claim to claim A relies on same facts and circumstances relied upon for contract or that the claim lacks averments necessary to sustain a cause of action or alternatively is vague and embarrassing.  The defendant’s second ground of exception also falls to be rejected.

[18]      In respect to the third ground of exception, the defendant argues that the plaintiff has made insufficient allegations to enable the defendant to know for what period the plaintiff is claiming damages and how the amount claimed was computed and arrived at.

[19[      In its particulars of claim [8], the plaintiff alleges that when the plaintiff left the site ‘during or about August 2016’ the total amount suffered as result of defendant’s alleged misrepresentation amount to N$ 9,212,689.  I did not hear the defendant arguing that on this score, no possible evidence can be led to disclose a cause of action.  I am not persuaded that upon every interpretation which the plaintiff’s further alternative claim can reasonably bear, no cause of action is disclosed.  I am of the opinion that the plaintiff’s further alternative claim contains all the necessary averments to disclose a cause of action.  The defendant’s third ground of exception also falls to be rejected.

[20]      In regard to the fourth ground of exception the defendant argues that annexure “RN2” incorporates a subcontract agreement into the agreement allegedly entered into by the parties.  The subcontract agreement referred to in annexure “RN2” is not annexed to the plaintiff’s particulars of claim, nor are the terms thereof pleaded by the plaintiff.  As a result the plaintiff’s particulars of claim are vague and embarrassing.

[21]      The said “RN2” reads in part as follows:

‘Att, Mr A Di Savino

Contract for the Rehabilitation and Upgrading of TR1/6 between Windhoek and Okahandja: section 4A, Dobra River to Omakunde Interchange to Dual Carriageway (CONTRACT NO RA/DC-CR/09/2013)

Subject: Bridges and overpasses Execution and Structural Repairs.

Dear Sir

………………………………………………………………………………………………………………………………………………………………………………………………………………

The above described works are executed under the Subcontract Agreement, which will include the relevant terms and conditions and will supersede the present Letter of Intent, as matter of clarity:

1.         The Section 1300, amounting to NAD 26, 623, 42.30 is not subject to CPA.

2.         The Bridge Works are listed in the attached summary for an amount to NAD 67, 286, 040, 61. Time for execution is 24 months.  Quantities are provisional and subject to measurement.  The Bridge Works are subject to the CPA calculated from the time of the offer (08 February                  2016).

The applicable principle of the Subcontract Agreement is “back to back” therefore all the provisions of the Main Contract will be applicable to the Subcontractor (to the extent applicable to the Subcontract Works).

Please note that the finalization and execution of Subcontract Agreement is subject to the consent of the Engineer to RIVOLI Namibia as Subcontractor. Should the Engineer fail to give such consent, the present Letter of intent will be null and void.

Yours faithfull

Signature

Mr Luca de Maria

On behalf of CMC/OTESA JV’

[22]      In terms of paragraph 4 of the particulars of claim (as amended), annexure “RN2” constitutes part of the written agreement entered into by the parties.  In terms of “RN2” set out above the envisaged subcontract will supersede “the present letter of intent” and is subject to the consent of the engineer, failing which the letter of intent (“RN2”) will be null and void.

[23]      It, therefore, appears to me that “RN2” contemplates the execution of a subcontract by the parties, which would supersede the letter of intent.  The plaintiff has not pleaded that there are portions of “RN2” which the plaintiff would not rely on in proof of its claim.  Therefore, insofar as “RN2” incorporates and/or relies on a finalization and execution of a subcontract agreement, such subcontract agreement must in terms of rule 45(7) be annexed to the plaintiff’s particulars of claim.

[24]      For the aforegoing reasons, I am satisfied that the plaintiff’s particulars of claim are excipiable insofar as the subcontract agreement referred to in “RN2”, relied on by the plaintiff, is not annexed to the particulars of claim.

[25]      In the result, and for reasons set out above, I make the following orders:

a).     The defendant’s first ground of exception to the plaintiff’s particulars of claim is dismissed with costs, such costs are ordered to include costs of one instructing and two instructed legal practitioners up to the preparation of heads of argument and include costs of one instructing and one                instructed legal practitioner in respect of the hearing.

b).     The defendant’s second ground of exception to the plaintiff’s particulars of claim is dismissed with costs, such costs are ordered to include costs of one instructing and two instructed legal practitioners up to the preparation of heads of argument and include costs of one instructed and one           instructing legal practitioner in respect of the hearing.

c)      The defendant’s third ground of exception to the plaintiff’s particulars of claim is dismissed with costs, such costs are ordered to include costs of one instructing and two instructed legal practitioners up to the preparation of the heads of argument and include costs of one instructed and                 one instructing legal practitioners in respect of the hearing.

d)      The defendant’s fourth ground of exception is upheld with costs, such costs are ordered to include costs of one instructing and two instructed legal practitioners.

e)      As regard the fourth ground of exception, the plaintiff is afforded opportunity to amend its particulars of claim within 15 days from the date of this order.

f)       The matter is postponed to 24 July 2019 at 15:15 for Case Planning Conference.

g)      The parties are directed to file a case plan on or before 18 July 2019.

 

 

 

_____________

B Usiku

Judge

 

 

APPEARENCES

PLAINTIFF:                                     N Bassingthwaighte

                                                        Instructed by Sisa Namandje and Co Inc,

                                                        Windhoek

DEFENDANTS:                               R Heathcote (Assisted by Y Cambell)

                                                        Instructed by Francois Erasmus and Partners,

                                                        Windhoek


[1] Rivoli Namibia (Pty) Ltd v CMC/Otesa Civil Engineering (Pty) Ltd Joint Venture HC-MD-CIV-ACT-OTH-2017/00747 [2017] NAHCMD 303 (25 October 2017) per Prinsloo J paras.33-40.

[2] Para 21 of plaintiff’s particulars of claim (as amended).

[3] Para 17 of particulars of claim (as amended).

[4] Para 18 of particulars of claim;

[5] Para 19 of particulars of claim.

[6] Para 20 of particulars of claim.

[7] Para 23 of particulars of claim.

[8]  Paras 23-24 of the particulars of claim as amended.

Download