Baucon Construction - Renovation CC v Ya Shiimi & Ors (HC-MD-CIV-ACT-CON-2018/04558) [2020] NAHCMD 165 (19 May 2020);

Group

Full judgment

“ANNEXURE 11”

Practice Direction 61

IN THE HIGH COURT OF NAMIBIA

 

Case Title:

Baucon Construction and Renovation CC // Tangeni Shiimi Ya Shiimi and 2 others  

Case No.:

HC-MD-CIV-ACT-CON-2018/04558

Division of Court:

High Court (Main Division)

 

Heard/tried before:

Honourable Mr Justice B Usiku J

Date of hearing:

19 May 2020

 

Delivered on:

19 May 2020

 

Reasons released on:

22 May 2020

Neutral citation:  Baucon Construction and Renovation CC v Ya Shiimi and 2 Others (HC-MD-CIV-ACT-CON-2018/04558) [2020] NAHCMD 188 (19 May 2020)

 

 

The Order:

Having heard Adv. TC  Phatela with him is Mrs V Boesak, on behalf of the Plaintiff(s) and Adv. Bassingthwaighte with her is Mrs S Vlieghe, on behalf of the defendant(s) and having read the documents filed of record:

 

IT IS ORDERED THAT:

 

1.    The first defendant’s first ground of exception, on the basis that the particulars of claim        are vague and embarrassing, is upheld.

2.    The second, third, fourth, fifth and sixth grounds of exception are dismissed.

3.    The plaintiff is ordered to pay the costs of the first defendant occasioned by the exception,        such costs to include costs of one instructing and one instructed legal practitioner.

4.    The plaintiff is afforded opportunity to amend its particulars of claim, if so advised, within 15 days from 22 May 2020.

5.    The matter is postponed to 8 July 2020 at 15:15 for case planning conference.

6.    The parties are directed to file a joint case plan on or before 1 July 2020.

 

 REASONS 

 

Introduction

 

[1]           This is an exception taken by the first defendant against the plaintiff’s particulars of claim.  The basis of the exception is that the particulars of claim are vague and embarrassing and/or do not contain averments necessary to sustain a cause of action.

[2]           The particulars of claim allege that on or about 31 May 2016, the plaintiff, the first defendant and the second/third defendants entered into a written agreement.  In terms of that agreement the plaintiff was appointed as a contractor to construct a dwelling-house, including a granny flat and a garage for the first defendant.

[3]           The third defendant is described in the particulars of claim as an architect and a principal agent of the first defendant.  It is also alleged that the third defendant conducts business through the second defendant.

[4]           In the particulars of claim, the plaintiff claims payment from the first defendant, alternatively from the first and/or the third defendant, in the amount of N$ 2,528,388.39.  This amount is alleged to be an amount due in respect of additional works and variations to the building works, performed by the plaintiff, at the behest of the defendants, in terms of the written agreement.

[5]           The first defendant delivered an exception to the particulars of claim raising six grounds of exception.  The plaintiff opposes the exception.

[6]           The legal principles governing exceptions are concisely set out in Van Straten NO v Namibia Financial Institutions Supervisory Authority and Another 2016(3) NR 747 SC and I do not need to repeat them here.

 

First defendant’s grounds of exception

First ground of exception

[7]           In the first ground of exception, the first defendant contends that in paragraph 6.17.1A of the particulars of claim the plaintiff alleges that the second and/or third defendant (as agents of first defendant) instructed the plaintiff to carry out additional construction works, not contemplated in the written agreement and which constituted additions to and/or variations of the building works.  According to the particulars of claim, the additions/variations instructions were given orally and the plaintiff was furnished drawings, marked in red, which drawings are in possession of either the second or third defendant.

[8]           The first defendant points out that in terms of clause 1.2 of the written agreement, any oral instruction involving a variation shall be confirmed in writing by the contractor to the principal agent within 7 days and would then be dealt with under clause 10 of the agreement, as authorised variation.  In paragraph 6.17.4A, the plaintiff pleads that it acted as contemplated in clause 1.1 and 1.2, read with clause 1.3 of the written agreement. Insofar as this is to be taken to mean that the plaintiff had confirmed the oral instructions in writing as required by the agreement, the first defendant argues that the plaintiff ought to have annexed the written confirmations to the particulars of claim.  The first defendant contends that the written confirmations constitute written agreement between the parties, as far as additional works and/or variations are concerned and must, in terms of rule 45(7), be annexed to the particulars of claim.

[9]           The first defendant, therefore, submits that the failure to annex the written confirmation(s) to the particulars of claim renders the particulars of claim vague and embarrassing and also excipiable on the ground that they do not contain the averments necessary to disclose a cause of action.

[10]         I am of the opinion that, insofar as the plaintiff alleges that it complied with the provisions of clause 1.2 of the written agreement, which, among other things, require the plaintiff to confirm oral instructions involving a variation, in writing, the plaintiff is required in terms of rule 45(7) to annex to the particulars of claim the written confirmations in question.  On this score the plaintiff appears to use compliance with clause 1.2 as a link in the chain of its cause of action.  Such compliance entails confirmation in writing by the plaintiff of the oral instructions involving variations given by the principal agent.  The confirmations in question are, therefore, required in terms of rule 45(7) to be annexed to the pleading.  For the aforegoing reasons, I agree with the first defendant that failure to annex the written confirmation(s) in the circumstances, renders the particulars of claim vague and embarrassing.

[11]         The first grounds of exception therefore is well-taken and stands to be upheld.

 

Second ground of exception

[12]         In this ground of exception, the first defendant states that the plaintiff alleges in paragraph 6.19 of the particulars of claim that the parties agreed that the plaintiff would be paid an additional amount at the rate referred to in paragraph 6.7 (of the particulars of claim).  The rates referred to in paragraph 6.7 are the rates set out in the Bills of Quantities (meaning annexures “1(a)” and (“1(b)”) for works of a similar character executed under similar conditions.  According to paragraph 5 of the particulars of claim, annexures “1(a)” and “1(b)” are quotations given for works specified in the agreement, and not for variations.  The first defendant states further that, in paragraph 7 of the particulars of claim, the amount due in respect of the additional works and/or variations is N$ 2,528,388.39.  This amount does not correspond with the amounts indicated in annexures “1(a)” and “1(b)”.  The first defendant therefore contends that he is unable to determine how the amount of N$ 2,528,388.39 was arrived at and is unable to determine whether or not the variations were “work of a similar character executed under similar conditions” as the work priced in the quotations.  The first defendant argues that failure to indicate how the amount of N$ 2,528,388.39. was arrived at renders the particulars of claim vague and embarrassing.

[13]         In response the plaintiff states that the value of the works is a matter of evidence and that the works in question were valued at the amount claimed.

[14]         I am of the opinion that the pleadings ought to be read as a whole and not as individual paragraphs, in insolation.  The allegations set out in paragraphs 6.19, 6.20 and 7 of the particulars of claim, contain clear and concise statements of material facts upon which the plaintiff relies for claiming the amount that the plaintiff claims.  Briefly the aforegoing paragraphs allege that the parties agreed that the plaintiff shall be paid for performing additional works.  The prices set out in the bills of quantities shall determine the valuation of the additional works.  The plaintiff performed the additional works.  The plaintiff was not paid in respect of the additional works.  I am, therefore, not persuaded that there is anything embarrassing in paragraph 6.19 or in paragraphs 6.7 or 6.17.  The first defendant will be able to plead thereto.

[15]         Therefore, the second ground of exception is without merit and stands to be dismissed.

 

Third ground of exception

[16]         The third ground of exception is to the effect that the particulars of claim do not indicate with any particularity the variations that were made.  The first defendant sates that he is unable to determine the additional works or variations allegedly agreed upon and performed by the plaintiff.  The defendant argues that rule 45 requires the plaintiff to plead all material facts it relies on for its claim, to enable the defendant to determine the case he is to meet.  The defendant submits that the plaintiff ought to have provided facts setting out the nature of the additional works, the unit at which additional works were measured, the quantity of the works done and rates applied to specific works.

[17]         The first defendant therefore contends that failures to provide such particulars renders the particulars of claim excipiable on the ground that they are vague and embarrassing and/or do not contain averments necessary to disclose a cause of action.

[18]         In regard to this ground of exception, the plaintiff contends that the quantity of the works is a matter for evidence.  The plaintiff further argues that it has pleaded the existence of architectural drawings depicting the variations and that such drawings are in the possession of the second and/or third defendant.

[19]         I am not persuaded that the absence of particularity regarding the additional works or variations renders the particulars of claim excipiable.  The particulars of claim allege that the plaintiff performed certain additional works in terms of the agreement between the parties.  They further allege that the plaintiff is entitled to be remunerated for the additional works but was not remunerated.  The additional works or variations, were orally directed by the second or third defendant, and are depicted on the drawings, marked in red, which drawings are in possession of the second or third defendant.  As a consequence, so the particulars of claim allege, the plaintiff sues the defendants for the recovery of the remuneration in respect of the variations, which is due and payable.  Nothing precludes the defendant from denying or admitting, in his plea, that additional works as described above, were performed (or not performed), whatever the defendant’s case may be.  There is nothing vague or embarrassing about the absence of the particulars complained of and the defendant is able to plead thereto.  This third ground of exception, therefore, stands to be dismissed.

 

Fourth ground of exception

[20]         Under this ground of exception, the first defendant states that, in paragraph 17 of the particulars of claim, the plaintiff pleads that the first defendant (and the second and/ or third defendant) knew that the plaintiff would suffer contractual damages as a result of the misconduct pleaded in paragraphs 13 to 16.  In paragraph 18, the particulars of claim allege that the first defendant acted in concert with the second or third defendant.  However, the plaintiff fails to plead any misconduct on the part of the first defendant, or how, where and in what manner, the first defendant acted in concert with the second and/or third defendant for the first defendant to be held liable for any damages suffered as a result of such misconduct.  The first defendant, therefore, contends that the aforegoing renders the particulars of claim vague and embarrassing.

[21]         In response, the plaintiff asserts that it has pleaded the issue of misconduct with sufficient particularity to enable the defendants to plead thereto.

[22]         I am not persuaded that the absence of the details alleged by the first defendant renders the particulars of claim vague and embarrassing. 
There is nothing that precludes the first defendant from denying or admitting the conduct attributed to him by the plaintiff.  Therefore, there is nothing vague and embarrassing about the paragraphs referred to by the first defendant and the first defendant will clearly be able to plead thereto.  The fourth ground is meritless and stands to be dismissed.

 

Fifth ground of exception

[23]         Under this exception, the first defendant states that, in paragraph 20 of the particulars of claim, the plaintiff alleges that it would have generated income amounting to N$ 2,528,388.39 in respect of the completion of the works, if first defendant had paid the plaintiff the outstanding amount which is due, owing and payable.  The first defendant argues that it is not clear from the particulars of claim:

(a) whether the works referred to are the works specified on page 2 of the agreement or the additional works;

(b)  where the income of N$ 2,528,388.39 would have been generated from or whether the said income is the amount claimed for the additional works, and,

(c)  whether what is pleaded in paragraphs 18 to 20 constitutes an alternative basis for the claim set out in paragraphs 9 and 11.

The first defendant therefore submits that the aforegoing renders the particulars of claim vague and embarrassing.

[24]         In my view, when regard is had to the particulars of claim as a whole, the plaintiff’s claim is for recovery of monies in respect of additional works performed (described as “delayed payment”), rather than for loss of income that plaintiff could have generated if the contract was not allegedly breached.  When read as a whole, I am not persuaded that the particulars of claim are rendered vague and embarrassing on account of the apparent imperfections which the first defendant has raised.  The paragraphs referred to by the first defendant are vague in the sense that they lack clarity.  However, I am not persuaded that the vagueness is such that it will result in prejudice or “embarrassment” to the defendant, if it is allowed to persist.  For that reason, the fifth ground of exception also stands to be dismissed.

 

Sixth ground of exception

[25]         Under this ground of exception, the first defendant states that, in paragraph 22.5 the plaintiff pleads that the first defendant is liable to the plaintiff in the amount of N$ 3,485,204.02.  The first defendant contends that it is not clear in relation to what this amount is owed to the plaintiff nor is the amount claimed in prayers.  The first defendant therefore argues that the aforegoing renders the particulars of claim vague and embarrassing.

[26]         In response to the plaintiff contends that the first defendant’s complaint on this aspect is not sufficiently weighty to justify an exception. The plaintiff re-iterates that its claim is for payment of N$ 2,528,388.39.

[27]         I agree.  When the particulars of claim are read as a whole, it is clear the plaintiff claims payment of N$ 2,528,388.39 and no other amount.  Therefore there is nothing embarrassing in paragraph 22.5 to justify an exception.   This ground of exception also falls to be dismissed.

 

Conclusions

[28]         In conclusion, the first ground of exception succeeds on the basis that, for reasons already stated, the particulars of claim are vague and embarrassing.

[29]         The second, third, fourth, fifth and sixth grounds of exception are dismissed.

[30]         I am inclined to add that, in general, the plaintiff’s cause of action, as set out in the particulars of claim, is inelegantly formulated.  Though, in the prayers, the plaintiff claims N$ 2,528,388.39 in respect of “delayed payment”, there are allegations relating to “loss of income”, “misconduct” and “undue enrichment”, made in the particulars of claim.  Even though the vagueness, in respect of the dismissed grounds of exception is not such that it would result in prejudice or “embarrassment”, I am of the opinion that the first defendant should be granted its costs in the circumstances of this matter.  In other words, though the first defendant has only been partially successful, the defendant is entitled to his costs occasioned by the exception.

[31]         In the result I make the following order:

1.    The first defendant’s first ground of exception, on the basis that the particulars of claim        are vague and embarrassing, is upheld.

2.    The second, third, fourth, fifth and sixth grounds of exception are dismissed.

3.    The plaintiff is ordered to pay the costs of the first defendant occasioned by the exception,        such costs to include costs of one instructing and one instructed legal practitioner. 

4.    The plaintiff is afforded opportunity to amend its particulars of claim, if so advised, within 15 days from 22 May 2020 .

5.    The matter is postponed to 8 July 2020 at 15:15 for case planning conference.

6.    The parties are directed to file a joint case plan on or before 1 July 2020.

 

            Judge’s signature

Note to the parties:

 

 

Not applicable

Counsel:

Plaintiff

First Defendant

Adv. TC Phatela with him Mrs V Boesak

Instructed by ENSAfrica Namibia

(incorporated as LorentzAngula Inc)

Windhoek

Adv N Bassingthwaighte  with her Mrs S Vlieghe

Instructed by Koep & Partners Legal Practitioners

Windhoek

 

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