Otar v Gopinath Builders (Pty) Ltd (CS 132 of 2019) [2024] SCSC 204 (13 August 2024)

Otar v Gopinath Builders (Pty) Ltd (CS 132 of 2019) [2024] SCSC 204 (13 August 2024)

Dodin J

  1. The Plaintiff, Doris Otar, who is the owner of land title no. S7851 situated at Au Cap, Anse Aux Pins, Mahe entered into a contract with the Defendant, Gopinath Builders (Proprietary) Limited, a company represented by its director, Karsan Kerai to construct a three-bedroom dwelling house on Plaintiff’s Property for the total sum of Seychelles Rupees Two Million Eight and Seventeen Thousand Five Hundred and Twenty (SCR2,817,520/-). The sum included labour costs and materials. At the time, Plaintiff was residing in Switzerland was hoping to settle in Seychelles upon completion of her dwelling house sometime in 2016.


 

  1. It is not in dispute that during the progress of the construction the Plaintiff requested and the Defendant agreed to add to or alter the existing plan. This included a basement to the dwelling house for an additional sum of Seychelles Rupees One Million and Twenty Five Thousand only (SCR1,025,000/-) which sum also included labour costs and materials.


 

  1. The Plaintiff contends in her plaint that she made all payments due and payable to Defendant under the agreed quotation up to the completion of the dwelling house and the basement. The Plaintiff however contends that the Defendant did not complete the construction as scheduled and by reason of delay and failure on the part of the Defendant to honour reasonable time frames under his own scope of works and as per his own undertaking to the Plaintiff, the dwelling house was not completed by end of December 2016 nor in January 2017.


 

  1. The Plaintiff further avers in her Plaint that the Defendant misled her as to the state of completion of the dwelling house and caused Plaintiff to travel down to Seychelles from Switzerland and to ship down her furniture but upon the Plaintiff’s arrival in Seychelles in October 2017, the Plaintiff avers that she found the dwelling house to be still incomplete, not ready for occupation, inconsistent with the approved plans and designs and manifesting numerous wants of repairs and rectifications. She avers that had no choice but to take up temporary accommodation with relatives until November 2017 and to rent out accommodation from December 2017 to end of February 2018 since the dwelling house was still incomplete when Plaintiff’s furniture arrived in Seychelles in November 2017.


 

  1. The Plaintiff avers that on the 1st March 2018, she had no choice but to move in the incomplete dwelling house but urged Defendant to complete the said dwelling house and to rectify the numerous wants of repairs and all inconsistencies with planning permission, approved designs and her wishes. She avers that the Defendant refused, failed and neglected to complete the dwelling house in accordance with planning permission, approved designs and Plaintiff’s wishes and abandoned the site.


 

  1. The Plaintiff avers that consequently, she retained the remaining sums due and payable to the Defendant upon completion and occupation of the dwelling house under the agreed quotation. She further avers.

  2. The Plaintiff further avers that upon Defendant’s abandonment of the site, the Plaintiff caused the dwelling house to be independently assessed by an engineer who found numerous deficiencies in the structure and general workmanship and recommended extensive and urgent remedial works and/or demolition and rebuilding of the dwelling house for Plaintiff’s safety.

  3. The Plaintiff avers that she further sought a Quantity Surveyor’s report on the costs of remedial works to be effected to the Plaintiff’s property which was quoted to be the sum of Seychelles Rupees Two Million Eight Hundred and Forty Thousand Three Hundred and Nine and Ninety-Three cents (SCR, 2,840,309.93/-).

  4. The Plaintiff avers that she requested the Defendant to bear the cost of all remedial works that has to be carried out in order to make the dwelling house safe for occupation, rectify his poor workmanship and to return the set of keys to the dwelling premises retained by the Defendant. The Defendant has failed, refused and neglected to undertake urgent remedial works and/or to rectify his poor workmanship on Plaintiff’s dwelling house as requested and failed to return the set of keys to the Plaintiff.

  5. The Plaintiff contends that the Defendant has breached his contract with the Plaintiff and as a result of Defendant’s breach of contract, Plaintiff has suffered unnecessary and extensive financial losses and emotional distress and hardship which the Plaintiff estimates in the sum of Seychelles Rupees One Million Ten Hundred Thousand Only (SCR1,010,000/-), particularised as follows:

  • Rental Accommodation SCR 60,000/-


 

  • Engineering Assessment SCR 10,000/-


 

  • Quantity Surveyor’s Report SCR 10,000/-

  • Delay in completing the dwelling

house from January 2017 to February 2018 SCR 630,000/-


 

  • Moral damages for emotional distress

and hardships by reason of travelling to

Seychelles to find the house incomplete,

manifesting numerous defects and wants

of repairs and inconsistencies with planning

permission and approved designs. SCR. 300,000


 


 

TOTAL: SCR1, 010,000.


 

  1. The Plaintiff moves the Court to give judgment on favour of the Plaintiff by:

  1. Declaring that Defendant has breached its contract with Plaintiff and is bound to make good the said breach by completing the dwelling house, rectifying defective works and carrying out remedial works to make the dwelling house safe for Plaintiff’s occupation and/or bear the costs thereof as per the engineering and quantity surveyor’s reports;


 

  1. Ordering the Defendant to complete the dwelling house in accordance with permission and approved designs and Plaintiff’s wishes, rectify defective works and carry out remedial works and/or bear the costs thereof as per the engineering and quantity surveyor’s report; and


 

  1. Ordering the Defendant to pay the Plaintiff damages in the sum of SCR 1, 010,000/- for financial loses and emotional distress and hardship suffered by the Plaintiff by reason of the Defendant’s breach of contact.


 

  1. The Defendant admitted in his defence that there was a contract between the company and the Plaintiff to construct the dwelling house for the sum of Seychelles Rupees Two Million Eight and Seventeen Thousand Five Hundred and Twenty only (SCR2,817,520/-) and a further contract for additional work for a basement in the sum of Seychelles Rupees One Million and Twenty-Five Thousand only (SCR1,025,000/-).

  2. The Defendant denied that any delay was caused by the company or that the Plaintiff was misled in any way in respect of the construction works. The Defendant avers that it was the Plaintiff’s requests for an extensive quantity of extra works which naturally extended the agreed project duration. The Defendant further avers that the Plaintiff was informed of the exact state of completion of the dwelling house, by reason of the extra works and that the Plaintiff refused rental accommodation that the Defendant offered the Plaintiff despite the Defendant offering to pay for these expenses.

  3. The Defendant avers that the house is according to the plan approved by the Plaintiff, and that the only minor cosmetic and superficial rectifications are needed to be done to it. The Defendant further avers that he gave the Plaintiff a requested sum of SCR 6000.00 as contribution to cover some of the expenses of the Plaintiff whilst the Plaintiff was residing with a relative.

  4. The Defendant admitted that the dwelling house was inspected by an independent Civil Engineer but the surveyor reported that the dwelling house was safe for habitation and was not in need of repairs and rectification, except for repair to minor hairline cracks. The Defendant avers that the dwelling house is in accordance with the Plaintiff’s approved design and wishes.

  5. The Defendant further avers that all works have been completed on the dwelling house and that the Plaintiff had no lawful reason not to pay the balance of the sum due for the work completed. The Defendant avers that the Plaintiff owes it a sum of SCR 452,935.80 for extra work done.

  6. The Defendant denies any other averments made by the Plaintiff and maintains that the key in contention is in the Plaintiff’s possession.

  7. The Defendant further counterclaimed that the sum of SCR669,284.00 for unpaid works per the agreement between the parties and the sum of SCR452, 935.80 for extra works carried out in her instructions. These works were detailed and partly priced in a schedule agreed to in August 2018 addressed to the Plaintiff, and the sum remains outstanding to this day.

  8. The Defendant moved the Court to;

  1. dismiss the Plaintiff’s claim, with costs;

  2. to give Judgment in its favour against the Plaintiff in the sum of SCR 669,284.00 for unpaid works with interest.

  3. to give Judgment in its favour against the Plaintiff in the sum of SCR 452, 935.80 for extra works with interest; and

  4. to award cost against the Plaintiff.

  1. The Plaintiff in her defence to the counter-claim denied all the claims made by the Defendant maintaining that there was no agreed quotation for extra works allegedly required for the construction of Plaintiff’s dwelling house and basement prior to carrying out such alleged extra-works. The quotation was provided to the Plaintiff’s letter of demand of 27th July 2018.

  2. The Plaintiff repeated that the construction of the Plaintiff’s dwelling house and basement was considerably delayed due to the Defendant’s failure to honour reasonable time frames under his own scope of works and as per his own undertaking to the Plaintiff. Which the Plaintiff only became aware upon her arrival in Seychelles. She maintained further that the rental accommodation offered by Defendant was not conducive in view of her medical condition, and that was known to the Defendant who did not offer alternative accommodation for obvious reasons. The Plaintiff moves the Court to dismiss the Defendant’s counter-claim with cost.

  3. The Plaintiff called 5 witnesses including the Plaintiff herself and the Defendant called 3 witnesses.

  4. Georges Miloba, a draughtsman who designed the plan for the building and obtained planning approval testified that according to his drawing there was to be a three-bedroom house on pillars or columns because of the steep terrain and with a basement which only use was for a water tank storage. Mr Bernard Eugenie did the engineering drawings for the steel structure that was to be incorporated in the columns and the building. Since his plan had been approved, he had no cause and to and he has not returned to the construction site.

  5. The Plaintiff, Doris Otar, testified that at the time she contracted the Defendant to build the house she was living in Switzerland and it was one Chantale Pinchon who did the negotiations and subsequently some payments were made through the said Chantale Pinchon. She testified that she had informed Mr Kerai, the director of the Defendant that she intended to retire to Seychelles by 2016. The Defendant initially gave a quotation of SCR2,300,000 for the house but they eventually agreed on SCR 2, 817,520. Then Chantale Pinchon told her that there was a lot of space in the basement and they proposed the construction of a studio with an American Kitchen a room and a balcony. She agreed with the Defendant on an additional sum of SCR1,025,000/-.

  6. She testified that she came to Seychelles in 2014. The contract was signed on the 9th October, 2014 as per the exhibited documents. She testified that that day an advance of SCR1,127,008 was paid to the Defendant. Then the following payments were made through Mrs Pinchon or Mrs Pinchon’s mother: 6th November, 2015 a sum of 120,000/-; 10th November 2015, a sum of SCR150,000/-; 17th November, 2015SCR50,000/-: 13th January, 2016, a sum of SCR350,000 and on 26th June 2016 a sum of SCR180,000/-. She testified that upon the completion of the house she had to pay another SCR92,000/- and after 6 months of occupation, she was to make the final payment of SCR576,378/-.

  7. She testified that the house was to be completed in December, 2016 but by January, 2017, the Defendant had not completed construction as promised. In October, 2017 when she came to Seychelles she had to live with family, then she rented a house until she moved into the house on the 1st March, 2018.

  8. She testified that upon moving into the house she found that the tiles were not the ones she has requested, there were no windows, no doors and no toilet upstairs, the tiles were slippery and the tiles were not ceramic but slippery ones. She testified that the basement was not completely painted. The 1st floor had an English design and the sitting room, dining room, balcony and kitchen were not of her choice. In the basement there was no water tank. There were many cracks all over the building, there was no drainage outside and no retaining wall. She also noticed that when it rained, rain would be blown onto the balcony which was also quite small. She requested the Defendant to rectify these defaults to her satisfaction but he demanded more money. She contacted the engineer who told her that nothing was wrong and that the small cracks were normal and the house was not in danger of falling. She maintained that Mr Kerai still has not return a set of keys that was with him.

  9. She testified that she requested a report from Mr Savy, a surveyor who told him to remove his furniture as the house was in danger of falling. She requested Mr Jean, a quantity surveyor to make a report for the insurance but the insurance company refused to pay. She admitted that the Defendant did additional works but maintained that Mr Kerai never billed her for payment.

  10. In cross-examination, she admitted that initially the proposal was to build a three-bedroom house on one level only but then changed to include the other floor. She admitted that she went with Mr Kerai to Providence to choose the windows to the bathrooms and the burglar’s bars and the frames but denied that she also chose the other or the tiles. She admitted that in the plan there were no provisions for aluminium foil and double glazing but that it was herself and Chantale who proposed the same later. She admitted that it was not in the plan to build a retaining wall but with the soil erosion due to the terrain, she asked the Defendant to build one. However, she was advised by the engineer that the Defendant had only built a boundary wall.

  11. She admitted that the lower car park was not on the plan as the level was not on the original plan. She does not agree to pay the Defendant any additional money being claimed for extra work done or the outstanding which she had agreed to pay upon entry and after 6 months because she maintained that the house was not completed on time and is not on the standard agreed to.

  12. Mr Michel Savy, a surveyor, testified that he visited the property and produce a report as requested by the Plaintiff. He testified that there were visible damages in terms of cracks both internal and external although the cracks on the plaster were not a problem. He also observed that rubbles were still on site. The tiles on the floor were not suitable. There was no problem with the material used either. Outside there were cracks which extended to the settlement which he deemed to be serious as well as the cracks on above and below the windows. He considered the steel bars to be inadequate to support the load of the structure. He testified that significant earthwork was done to support the structure but it was not sufficient. Some stairs up the staircases were also uneven and there was some hollowness under some tiles. He put all these alleged defects down to general workmanship deficiencies and he recommended a class one contractor to do the reparations required. The retaining wall was not adequately designed for supporting the house and the drains were not adequate.

  13. In cross-examination Mr Savy admitted that he never spoke to the contractor, the designer or the engineer. He relied only on information supplied by the Plaintiff and his own observations. He admitted that in his view, the building was under-designed and the issues rest mostly with the engineer and less on the contractor. He maintained that the retaining wall was not adequately designed for supporting the house and the drains were not adequate. His conclusion was that it would be more cost-effective to demolish the house and rebuild it.

  14. Chantale Pinchon testified that the plan for the house did not include a basement. When the basement was added, a new price was quoted. Since Plaintiff wanted the basement to be an apartment, the price quoted was SCR 1.025,000. She testified that whenever she was given payments to make she ensured that Mr Kerai signed as per exhibits 8 and 9. She testified that she was satisfied with the work that the Defendant was doing.

  15. Allain Jean, a quantity surveyor, testified that in 2019 he was requested by the Plaintiff to set out the value of remedial works on the structure of the building. He visited the building twice and made reference to the engineering reports. He found faults with the retaining wall, the structural beams, the drainage systems, some electrical issues, cracks on the wall and the tiling works. He estimated the remedial work to be about SCR 2,840,309.93 cents.

  16. The defence called Franky Lespoire, a civil engineer, who testified that he visited the building in this case in July, 2020. He noticed some hairline cracks which did not appear to be active. In his opinion, a building of this nature must have an engineering plan approved by Planning Authority and the contractor cannot pour concrete without the approval of the engineer. He knew Mr Bernard Eugenie did the engineering plans but he does not know if he was an independent contractor or working for the Defendant. His conclusion was that the building is structurally sound.

  17. Mr Karsan Kerai testified that he did all the transactions for the contract to construct the building through Chantale Pinchon whom he has met at a gym in Victoria. Before giving the quotation, he visited the site which was very sloppy and he also consulted the design and the engineering plan. He testified that the construction of the house, the basement pillars and the retaining wall were done under the supervision of the engineer. For the basement flat, a drawing was sent to the Plaintiff and after she had agreed, he gave to one Ivan Robert who drew the plan.

  18. He testified that Chantale made the initial payments during construction and they signed and dated the documents. When the Plaintiff started asking for additional works, like the basement flat, extension of the roof and veranda, breaking of a big rock to build steps, a boundary wall and other internal changes, he advised |Chantale that the house could not be completed as agreed and requested for more time. Other additional works included changes in the design or the archways on the balcony, insulating material for the roof, changes in the layout of the kitchen, installation of trellidor which had to be imported from South Africa which took 4 months, change of colours and changed of windows to match, granite for the cabinets, all of which were changes from or addition to the original plans. He maintained that these issues were the real causes of the delays.

  19. He testified that the Plaintiff retained payments for the extra work she requested amounting to SCR 452,935/-. These works include work for the retaining wall, the outstanding sum for the trellidor which he had to pay instead of the lower cost for the burglar’s bars and work for the decking and other additional works as detailed by the invoice dated 31st August, 2018, exhibit D5. Further, there are outstanding sums for the final amounts on the original contract which stood at SCR 92,906 upon entry and SCR 576, 378/- after six months’ occupation, amounting to SCR669,284/-. He did not deny that he has a set of keys to the house with him but maintained that the Plaintiff never requested for the same since she moved in.

  20. Bernard Eugenie testified that he was the consultant civil engineer who did the engineering design for the house of Mrs Otar. He was instructed by architect Serge Miloba and was paid by Mrs Houareau, the Plaintiff’s sister, a sum of SCR 15,000/- for the plan. He was paid by Mr Kerai separately for the supervision works at SCR 1,200/- per supervision visit. He attended about 4 or 5 times. He certified that everything was in accordance with the design. He testified that it was not to his knowledge that smaller beams were used because if that was the case, there would be some stability issues with the house.

  21. The Court conducted two visits to the house, on the 29th July, 2020 and on the 9th March, 2022. Both the Plaintiff and the Defendant showed the several areas of the property with their respective comments on the work that had to be done. The Court observed that over the period of over a year and a half interval between the locus in quo, there had been no marked movement in the alleged cracks or significant deterioration in the state of the building and that there appeared to be no hindrance to its occupation and use by the Plaintiff.

  22. Learned counsel for the Defendant in his final written submission after rehearsing the evidence made the following submission on the law:

Relevant Law

Given that this matter was filed before the coming into force of the new Civil Code of Seychelles Act 2020 on 1st July 2021, the law as applicable under the old Civil Code of Seychelles Act shall apply.


 

  1. Article 1134

1134 (2): Agreements lawfully concluded shall have the force of law for those who have entered into them.


 

  1. Article 1135

Agreements shall be biding not only in respect of what is expressed therein but also in respect of all the consequences which fairness, practice or the law imply into the obligation in accordance with its nature.


 

  1. Article 1315

A person who demands the performance of an obligation shall be bound to prove it.

Conversely, a person who claims to have been released shall be bound to prove the payment or the performance which has extinguished his obligation.


 

Relevant Case Law


 

  1. Pindur vs Benoiton Construction Company [PTY] Ltd and another (CC18/2013)[2014] SCSC124


 

It was stated in the case of Pindur vs Benoiton Construction Company [PTY] Ltd and another that the analysis of alleged delay in a construction contract seeks to determine what was planned and provided for in the agreement and what eventually occurred. As stated above, the Plaintiff in the correct matter did instruct the Defendant herein to make several changes and extra addition to the house that was not part of the agreement which reasonably caused delay. The delay in the case at hand was not unjustifiable and it was not because of the lack of good workmanship or because of the inability of the contractor. In fact the Plaintiff was given notice by Mrs. Pinchon and by the contractor that the extra work would cause delay with the project.


 

The relevant extract in Pindur v Benoiton Company stated by Honourable Egonda-Ntende is cited below;


 

Delay analysis in building contracts is a complicated and technical piece of work that seeks to determine the difference between what was planned [as planned] and provided for in the agreement and what eventually occurred [as built]. The burden of proof is upon the person seeking to prove “unjustifiable delay” and or ‘inability of the contractor’ to do so and to prove particularly the exact period of the resultant delay’.


 

  1. Parkash vs Petovar-Didon (CC6/2018)[2020] SCSC207


 

The above stated case was for a claim of breach of contract and a counterclaim. Likewise, the client (Defendant) in the case of Parkash v Petovar-Didon requested several changes to be made to the original contract therein and also instructed the contractor therein (Plaintiff) to carry out several extra works. Moreover, the client in Parkash had withheld and refused to pay the contractor for work done including the payment that became due six months after the client had moved into the dwelling house. The reason for withholding payment as stated by the client in Parkash was, amongst other things, due to the work done not meeting the standard. The Honourable Judge in the matter awarded the case in favour of the contractor on the basis that the client had not proven that the delay by the contractor was unjustifiable and that the party had also failed to prove that the delay was because of the inability of the contractor. The court also concluded that the contractor had done the work that he was obligated to do as per the contract and that therefore he had to be paid.


 

O Nivo Construction vs Paul Hermitte ad Monique Hermitte (SCA 57 of 2019) [2022] SCCA 11 (29 April 2022)


 

The Defendants in the above mentioned case claimed that the Plaintiff (the contractor therein) had not built according to appropriate standard and that the work done was defective. The Quantity Surveyor in this case testified that the work done was up to standard and that is the reason that the client kept paying the contractor for each phase that was completed. The allegations that the work done were defective was only raised at the end of the project, a point that the Honourable Judge Pillay took note of as below:


 

note that the evidence of Monique Hermitte is that she had told Mr. Valentin several times that the work being performed by the Plaintiff was not acceptable and several times Mr. Valentin told her they would have the Plaintiff demolish. “Mr. Valentin in his testimony stated that he did site visits in the presence of Mrs. Hermitte”. In fact he went on to explain that Mrs. Hermitte was “a bit really want to know how her project is going on so every time I am on site I see that she comes on site so we go on site we adduce the work to go with her okay this is done, this is not good, I work on it okay then prior to submission I submit to her we discuss about it alright and she take the report…,”

Having visited the site with the surveyor on several occasions she could have challenged the quality of the work from early in the project as opposed to the last minute of for that matter she could have refused payment…”


 

Conclusion

In conclusion, the Defendant submits that although the Plaintiff has made several averments in her Plaint, these averments have not been proven. The allegation that the dwelling house is not according to the approved plan has been disproven. It has been stated and corroborated by several witnesses that the project was done according to the approved plans, including the engineering drawings commissioned by the Plaintiff herself, save for the changes which the Plaintiff requested and that she admitted having requested.


 

The averment that the work done is deficient and that the general workmanship was not up to standard has not been proven on a balance of probabilities. In fact, the fact that the work was not deficient was stated by Mr. Lespoir and corroborated by Mr. Eugenie. As a result of the same, the extent of the remedial work that the Plaintiff and the Quantity Surveyor claimed needs to be done is not necessary. Furthermore, some of the remedial work which the Plaintiff is requesting is related to items which she chose and she was in agreement for the Defendant to install the same. Naturally, the averment by the Plaintiff that she has suffered moral damages is thus not proven.


 

The Defendant also submits that the Plaintiff’s house is safe for occupancy and further submits that the house has been completed. The Defendant submits that he has properly discharged his obligations under the contract and denies the Plaintiff’s claim that the house remains incomplete.


 

Finally, the Defendant submits that the claim of the Defendant for delays has not been proved on balance of probabilities.


 

As a result of all the above, the Defendant humbly prays that the Honourable Court gives Judgment in favour of the Defendant in accordance with its claim for payment due by the Plaintiff and award costs and interest in favour of the Defendant.”


 

  1. Learned counsel for the Plaintiff filed her written closing submission which included his brief interpretation of the evidence followed by the following on the law:

II. BREACH OF CONTRACT

 

 

i. The agreement

 

1. It is uncontested that the Parties had entered into a contractual agreement, whereby the Defendant would construct a dwelling house for the Plaintiff as per specified plans. The Defendant confirmed this in his testimony, stating that the Plaintiff had given him exhibits Pl and P2 (architects' plans), and he had in turn given her a quotation for the completed works (see exhibits P3, P3A P3B). The Plaintiff gave evidence that the second drawing (exhibit P2) was not agreed to by her. The Defendant stated that his quotation was for the "first house", and was based upon the plan for the same (i.e .. exhibit PI).J The quotation was given following an inspection of the property on GIS and the Defendant subsequently did a site visit and satisfied himself that the quotation was appropriate." He confirmed that the retaining wall was included in the agreed upon plan." Franky Lespoir confirmed that the structural plans for the house were approved by the Planning Authority on 19th March 2014 (exhibit P23).

 

 

2. It is trite law that an agreement need not be reduced to writing; a contract requires the consent of the parties to bind themselves, the capacity to enter into a contract, and a definite object that forms the subject-matter of the undertaking (Chetty v Chetty SCA15/2009, LC 339). When interpreting a contract, the first step is to determine the common intention of the parties (Chow v Bossy SCA 7/2005, LC 282).

 

 

3. It is clear from the Parties' accounts and by their subsequent actions that they had entered into a bilateral contract (art 1102 Civil Code), whereby the Defendant would build the dwelling house as per the agreed upon plan, and the Plaintiff would pay the Defendant upon satisfactory completion of the works. Payment upon satisfactory completion is a term that may reasonably, justly and fairly be implied into the agreement between the Parties. Agreements will bind parties not only to the extent of what they contain, but also in respect that fairness, practice or the law imply into them (see Art 1135 of the Civil Code & Vijay Construction v A dee Recreations Limited [1983] SLR 91).

 

 

4. The Defendant stated in his testimony that it was agreed between the parties that he would be paid a "percentage's work each time as per phases the work continues." This is reinforced by the payments issued to the Defendant by the Plaintiff as the works were said to progress, as corroborated by the testimony of Chantale Pinchon, who confirmed that she made all payments bar the last two due under the agreement to the Defendant on behalf of the Plaintiff (see, for example, exhibits P8 & P9).

 

 

5. While the Plaintiff maintains that the basement was included in the agreed upon quotation, the Defendant avers that the basement construction constituted "additional works". It is his position that he amended his quotation to include the basement (also see exhibit D3). The Plaintiff maintains that the quotation that was solely signed by the Defendant was never agreed to by her. '' The initial quotation, by contrast was signed by both Parties. The basement design plans were undated (exhibit D6). The Defendant adduced no probative evidence to support his position that the agreed upon quotation had been mutually agreed upon by both parties to be varied nor that her express consent had been obtained to make any alterations to the agreed upon plan. Agreements cannot be amended unilaterally; any variation must be agreed between the parties: Boldrini v Pillay & Co Ltd [1980] SLR 119.

 

6. The Defendant maintains that no completion date was ever specified in any agreement between the Parties. Contrary to this, Mr. Kerai had given written assurances (exhibit PIS) that the boundary walls would be completed by 10 February 2017, however he failed to meet this deadline. He additionally committed to "deliver the remaining unfinished project that are in the quotation by "February 2018", and also failed to meet this deadline. This is over and above his failing to complete the house construction by January 2017, as expressed by way of letter (exhibit PH). There are two principal obligations which arise in our law that bind the Defendant: The obligation to deliver the thing agreed upon (Art 1136) and the obligation to act as agreed (Art 1142). The Defendant has failed to fulfil these obligations.

7. The Defendant admitted, with reference to the letter that he wrote dated 8 August 2016 (exhibits P11 & P14) concerning the delay and wherein he stated that the construction would be completed at the end of 2016 and the boundary wall in early 2017 that the contents were never agreed to by the Plaintiff.' If anything, he admitted that the Plaintiff had expressed that the house was "supposed to finish earlier".

 

 

 

ii. Defects

 

 

8. The Plaintiff arrived in Seychelles from Switzerland in October 2017, but found the house inhabitable. She had to pay for a rental property because it was not safe or practical to reside in the house that she had contracted the Defendant to build. When asked whether she was aware of the woeful state of the house, she replied, "No I did not know anything until I got to the house and saw the way the house was. I spoke to him once on the phone and he told me that everything will be okay, that everything will be okay.'"

 

 

9. She imported all her furniture from abroad and only realized upon having sight of the house that she would be unable to safely and reasonably live there. She stated as follows:

 

When 1 got there, still in the car 1could see, there were no windows nothing at all. Arriving at the entrance there was a walk, inside I visited the house and there. And I even told him that the tiles he had fixed on the floor was not the tiles I agreed with him to put on the floor, it was a smaller one. I visited upstairs there were no windows, no doors, nothing. No toilet there was nothing. I do not know how to describe it but there was really nothing, it was a disaster. ":-

 

 

"In the toilet I had told him to put anti-slippery tiles and he had put the same tiles he had put in the sitting room. Even at the balcony he had put the slippery 'white tiles, in the house everywhere. In the basement, the tiles in the toilet was not the tiles I had asked him and he had also installed a plastic bath tub where I had asked him to put a ceramic bath tub. The sink was okay, but the bath tub was plastic. When I entered the house there were no bath tub, it was after that he had installed the bath tub.

 

 

10. The Defendant admitted that there were cracks in the house at the time of initial inspection by the Plaintiff. Mr. Michel Savy, an expert witness, with respect to the aforementioned cracks, gave evidence in his comprehensive Report at paragraph 5 therein that:

..... the cracks on the external walls of the structure and through the lintels generally indicate a rotational movement towards the East and South. This indication is borne on the fact that cracks, in brittle materials, form at YO degrees to the direction of the motion which induces them. Given that the same regions of the property are the ones being retained by the wall, it necessarily follows that ground has settled most probably due to poor retention of the soil. Furthermore, from Appendix B it is clear that the wall is theoretically at its capacitive limit thus aligning with aforementioned postulation. As the retaining wall is at a limit state, it will continue to aggravate until it eventually collapses. Through compatibility of deformation, the soil which is retained will proportionally deform, manifesting as a settlement for the building itself Hence the cracks which are existing will continue to grow and aggravate.with the passage of time, lest remedial measure is taken. "

 

1I. Furthermore, at paragraph 6 of the same Report, the Expert opined as follows:

 

" ... An inspection onsite demonstrated that the beams in question were suffering vertical cracks on the top face. This crack pattern indicates a tensile overload in the top face of the beam, which is in line with insufficient reinforcement provided in the cantilever beam. Thus the beam can he considered as failed against the serviceability limit state criterion.

 

 

Furthermore, it was .found onsite that the cantilever beam system has been constructed in such a fashion that it is currently supporting two storeys of structure and the roof In order to achieve this, the building uses a hybridized load bearing masonry and framed structural system. This is generally poor practice and discouraged in best practice. In order to correct the deficiencies in strength and serviceability, the beam will need to be strengthened and repaired. The options include carbon fibre reinforcement and introduction of columns to reduce and reverse the stresses developed in the cantilever while increasing the strength of the beam section. ..

 

12. The above Report lists other serious defects with the workmanship, including lack of effective drainage system on the site (at para 6.2), weld corrosion (at para 7.2) which would cause them to eventually fail and render the balcony a "threat to human occupancy", damaged and incomplete tiling work (at para 8.4), and lack of drainage on the ground floor balcony (at para 8.5).

 

13. The Plaintiff gave notice to the Defendant to remedy the defects (including formally by way of written requests delivered directly to Mr. Kerai!"; See exhibits P12 and PI3). Even escalating matters before the Fair-Trading Commission when the Defendant failed or refused to do the needful. When the Defendant requested that the Plaintiff remove her matter before the Commission in exchange for completion of specified works, the Plaintiff did so. However, little to nothing was done by way of remedying the list of defects.

 

iii. Expert witnesses

 

14. Two expert witnesses in this matter had opposing theories. It is settled law that if there are two expert witnesses with competing theories, preference will be given to the evidence that is most likely to be the independent product of the witness (Sui v Public Utilities SSC 2002). Moreover, the court has the power to gauge the degree of accuracy and validity of an expert opinion by using the reasons on which the opinion is based as a touchstone (Joubert v Suleman (2010) SLR 248).

 

 

15. Mr. Michel Savy's Report is well researched, well analysed and he has cited relevant authorities where necessary to support his position. His evidence is cogent, detailed and credible. The Defendant's witness, namely Franky Lespoir, in contrast gave an opinion that was unfounded. His evidence comprised a general denial of Mr. Savy’s findings, without any cogent evidence to support his contrary conclusions.

 

 

16. Mr. Lespoir confirmed that he only visited the site for a 30-minute period, notably solely during the court locus in quo, and saw the cracks in the house; he agreed that he could not say that these cracks would not progress into a structural issues. He had not visited the site on any other occasion, nor had he conducted any proper or thorough examinations or analyses to support any reliable or credible professional conclusion (which is inconsistent with Mr. Kerai's claim in cross-examination that Mr. Lespoir "was there advising us" during the construction process on Plaintiffs house). In contrast, Mr. Savy visited the site on several occasions in order to properly prepare his report. Any inferences Mr. Lespoir drew, therefore, were solely from a report he had read by Mr. Savy and from the brief site visit during the locus." He had no involvement at any stage of the construction of the dwelling house, nor at planning stage. So his knowledge of the matter was superficial at best.

 

 

17. If, however Mr. Kerai's account on the witness's involvement is to be believed (i.e ..Mr. Lespoir gave regular advice to the Defendant during the construction of the house)?", then Mr. Lespoir's testimony as an independent expert would be tainted with bias and the credibility of his evidence called into question, particularly given that he would have perjured himself in court when stating that he had no involvement during

the construction period.

 

IV. Liability of contractor

 

 

18. Where the contractor has failed in its contractual obligation to do work of the best quality according to specifications or, being bound by a contract for services, has failed to discharge its warranty for work done, art 2270 of the Civil Code will apply (Fisherman's Cove v Petit (1979) SLR 40). Art 2270 accordingly provides: "Architects. contractors and other persons bound to the owner of the property by a contract for services are discharged from their warranty for work done or directed after ten years."

 

 

19. Where an architect has drawn up plans and specifications and supervised the work. the contractor is liable towards the employer for any fault or defect in the construction which arises from the defective materials used. The architect may equally be liable to the employer according to circumstances but that does not exonerate the contractor. In such a case the contractor and architect would be jointly and severally liable to the

Employer for the damage suffered (Fisherman's Cove v Petit (1979) SLR 40).. A contractor is in a different position from that of an architect. The architect is a professional whose work must be remunerated whereas the contractor is a trader who must take the risk pertaining to the offer of the services (Firma International v Hotel des Seychelles (1980) SCAR 122).

 

 

 

III. COMPENSATION

 

 

21. The incontrovertible fact remains that there were defects with the construction works by the Defendant and that the Defendant did not fulfil his obligations to the Plaintiff as per their Agreement. Moreover, it is uncontested that the construction was not completed on the dates specified by the Defendant, nor as initially agreed by the Parties.

 

 

22. Mr. Michel Savy's expert opinion, as per his official Report made the following recommendations after careful and detailed analysis:

 

 

"The required remedial works flow from both workmanship and engineering design and construction defects. As a consequence, it is our opinion that the remedial works should be at the cost of the original contractor and its agents. Furthermore, the required works to be undertaken present a significant risk in itself Indeed, a new design for the construction the remedial works' must be undertaken by an engineer as a scope of its own since the sheer volume of work represents a project in and of itself. It is recommended that a qualified Quantity Surveyor is brought on board to value the cost of these remedial works. Notwithstanding this, due to the delicate nature and high risk of executing the recommended remedial works, it may prove more cost effective to demolish and re-build the building in a safe and sound fashion. In the event that the Client does not wish to demolish, it is recommended that the heavy civil and structural works be awarded to a contractor with a proven track record in working in such sensitive and difficult conditions, in the engineering sense. The original contractor may be used to correct minor and aesthetic defects such as chipped tiles, thus minimizing the cost of disbursing to another separate more experienced, civil contractor. "

 

 

23. The Plaintiff gave evidence that she sought a quiet retirement in Seychelles, and has suffered financially and psychologically as a result of the Defendant's actions. She returned to Seychelles prepared to move into her home; her furniture had even been shipped over. Due to the Defendant's actions, the Plaintiff does not have a safe house to reside it, nor one built to the agreed upon specifications. She will also have to incur significant expenses in repairing the damage, and faces the daunting prospect of having to commence the construction of her retirement home from scratch while being forced to rent temporary accommodation in the interim.

 

 

24. Articles 1149 and 1150 of the Civil Code provide what damages are due in the event at' breaches of obligations. They provide in relevant part:

 

Article 1149

 

1. The damages which are due to the creditor cover in general the loss that he has sustained and the profit of which he has been deprived, except as provided hereafter.

2. Damages shall also be recoverable for any injury to or loss of rights or personality.

These include rights which cannot be measured in money such as pain and suffering.

and aesthetic loss and the loss of any of the amenities of life.

3. The damages payable under paragraphs 1 and 2 of this article, and as provided in the following articles, shall apply as appropriate to the breach of contract and the activity of the victim.

 

Article 1150

 

1. The debtor shall only be liable for damages with regard to damage which could have been reasonably foreseen or which was in the contemplation of the parties when the contract was made, provided that the damage was not due to any fraud on his part.

25. Jurisprudence constante in Seychelles has established the following principles in the interpretation of the above provisions: Damages are compensatory (Belize v Nicettev): they must be reasonably ascertainable (Kilindo v Morely), moral damages may be awarded for inconvenience and for loss of peace of mind (Zatte v Jouberty), damages can be claimed in terms of Article 1150 if they could have been reasonably foreseen (Jumeau v Sinon), damages cover the loss a person has sustained and the profits they have been deprived of which are immediate and direct consequences of the failure by the other party (Fisherman's Cove v Petit.)

 

 

 

IV. COUNTERCLAIM

 

 

26. Of relevance to the Defendant's counterclaim for outstanding sums, is Art 1315 of our Civil Code, which repeats the Roman maxim actor incumbit probatio or "he who avers must prove". The burden of proof with regard to the extinguishment of obligations rests on the party demanding performance, or the party claiming release (Art 1315).

 

27. The Plaintiff maintains that the Defendant never claimed any sum from the Plaintiff for any alleged additional works prior to exhibit Pl8, nor is there any probative evidence to indicate otherwise. Any works requested of the Defendant were to remedy defects to the house. For instance, rainwater would enter directly into the sitting room, and the Plaintiff requested that this defect with the construction be rectified so that the water flow into the house would cease." She maintained that at no time did the Defendant claim to have purchased additional materials to remedy the same. In reality, the Defendant used only materials already paid for by the Plaintiff and available on the site. The Defendant, on his part, averred that the Plaintiff was made aware of any alleged extra work, but admitted that they "did not prepare any invoices ... we did not give her any papers.

 

 

28. As discussed above, the Defendant adduced no probative evidence to support his position that the agreed upon quotation had been mutually agreed upon by both Parties to be varied, nor that the Plaintiffs express consent had been obtained to make any alterations to the agreed upon plan. Agreements cannot be amended unilaterally: any variation must be agreed between the parties: Boldrini v Pillay & Co Ltd [1980] SLR

 

 

119. Articles 1134 and 1135 of the Civil Code provide that agreements have the force of law and they are irrevocable.

 

29. The Plaintiff, on her part, gave evidence that she continuously and repeatedly requested Mr. Kerai to complete the outstanding works on her property. In one instance, she requested that the tiles be changed, and the workers informed her that there were no tiles. Once they communicated with Mr. Kerai, they began packing up their materials

to leave with. The Plaintiff telephoned Mr. Kerai for c1arification, and he responded angrily to her. The workers never returned to her property. It was also borne from cross-examination that the Defendant went contrary to the Plaintiff's express wishes when installing the tiles; she had gone with him personally prior to tiling to select the tiles she wanted. The Plaintiff gave evidence that the Defendant took photos of the tiles that she had selected. Furthermore, a set of keys to the Plaintiff's property was never returned to her.

 

 

30. Thereafter, the Plaintiff sought the aid of legal Counsel (see exhibits PI6 and PI7). The Defendant's Counsel responded to her letters (exhibit PIS), wherein it was claimed that only cosmetic touches remained to be done to the house. The Plaintiff gave evidence that the defects to the house were serious, including there being no stairs constructed to access the basement, and cracks in the walls. She stated that the Defendant had gone on a frolic of his own on the design of the first floor of the house as well as the balcony and the exterior of the house. 34 The Defendant's refusal or failure to adhere to the agreed upon plans for the house cannot reasonably or fairly be held to amount to mere cosmetic issues.

 

 

31. The Plaintiff gave evidence that the Fair-Trading Commission advised her to retain payments of outstanding sums under the quotation until the Defendant completes the work, as per their agreement." It is settled law that in a contract for work at a fixed price, the price is payable on completion of the work unless there is provision to the contrary in the contract (United Concrete v Pool (1978) SLR 213).

 

32. Moreover, a contractor who suspends the execution of the work, cannot claim any part payment of the price or any indemnity from the employer (United Concrete v Pool (1978) SLR 213; Dubois v Nalletamby (1979) SLR 33). A contracting party may refuse to perform their part of the agreement which has only been partially fulfilled by one party, and the obligations of the other party may be reduced proportionately (Peters v Bazen (1975) SLR 175).

 

 

WHEREFORE it is prayed that the counterclaim be dismissed, and that this Honourable Court finds in favour of the Plaintiff in terms of the Plaint.”

 

  1. This case does not put into issue whether there was a contract between the Plaintiff and the Defendant. Both the Plaintiff and the Defendant are in essence in agreement that there was a contract between then for the construction of a three bedroom house for the sum of SCR2,817,520/-. After the construction had started, the Plaintiff through her representative, Mrs Pinchon, negotiated and agreed to an extension of a basement apartment for the sum of SCR1,025,000/. Hence the total cost to be paid by the Plaintiff at that stage was SCR 3,842,520.00. The other pertinent condition was that the construction was to be completed sometime in the year 2016, when the Plaintiff was to return to settle in Seychelles.

  2. Articles 1134, 1135 and 1315 of the Civil Code of Seychelles provide as follows in respect of contract:

Article 1134 (1)Contracts lawfully concluded have the force of law for those who have entered into them.

(2)Contracts cannot be revoked except by mutual consent or for reasons authorised by legislation.

(3)Contracts must be performed in good faith.

Article 1135 A contract binds the parties not only in respect of what is expressed in the contract, but also to all the consequences of the contract which are implied by equity (equité), practice, or legislation.

Article 1315 (1)A person who demands the performance of an obligation must prove it.

(2)Conversely, a person who claims to have been released from an obligation must prove the payment or the performance that has extinguished the obligation.”

  1. The contentions of the Plaintiff are two-fold: Firstly that the construction has not been up to standard and specifications. Secondly the delay in handing her possession of the house in 2017 instead of 2016 has caused her loss and damages. She also claims moral damages for the above. All these claims are purely based on facts to which the Plaintiff and the witnesses testified and have been well-rehearsed above.

  2. The Defendant does not admit to the Plaintiff’s claim and counter-claim’s outstanding payment due to the Defendant both under the initial contract and for additional works undertaken which were not in the contract but which he claims that Plaintiff directed him to perform.

  3. The Plaintiff supported her testimony with photographs and expert reports and testimony that the cracks were of such significance that the house is inhabitable and in great ganger or collapsing. Hence her fist two prayers to the Court to:

  1. Declare that Defendant has breached its contract with Plaintiff and is bound to make good the said breach by completing the dwelling house, rectifying defective works and carrying out remedial works to make the dwelling house safe for Plaintiff’s occupation and/or bear the costs thereof as per the engineering and quantity surveyor’s reports; and


 

  1. Ordering the Defendant to complete the dwelling house in accordance with permission and approved designs and Plaintiff’s wishes, rectify defective works and carry out remedial works and/or bear the costs thereof as per the engineering and quantity surveyor’s report.


 

  1. It seems that even where the surveyors who testified recommended extreme renovations or complete demolition and reconstruction, the Plaintiff has been living without any incident related the state of the construction to date, from 2018 to 2024. In fact, the Court visited the house on two occasions at over a year’s interval and did not find any variation in the state of the building during that period. It was obvious however that there was a major crack on the south side of the building which ran a considerable way from the top but other than that there were many minor or hairline cracks which did not seem to extend to the critical structure of the building. According to the Defendant’s witness, theses hairline cracks are harmless and are the result of the building settling down on the very steep land upon which the building has been constructed.

  2. It is correct as argued by learned counsel for the Plaintiff that where two experts have contrary opinions, the Court should consider which one has been better researched and has a better degree of accuracy. In this case Mr Savy’s report appears quite extensive but in cross-examination, doubts were raised as to the perspective from which he made the report and the purpose thereof. He admitted that the report was made at the request of the Plaintiff and all information he obtained was from the Plaintiff only. He never approached the Defendant or the other persons, such as the draughtsman or the engineer who were involved in the construction and who testified that according to them, there was nothing wrong with the construction that the Defendant undertook.

  3. Allain Jean, the quantity surveyor, was also requested by the Plaintiff to set out the value of remedial works on the structure of the building which he visited twice and made reference to the engineering reports. He found faults with the retaining wall, the structural beams, the drainage systems, some electrical issues, cracks on the wall and the tiling works. He estimated the remedial work to be about SCR 2,840,309.93 cents. He never consulted the Defendant or the draughtsman or the engineer.

  4. It is obvious that these two reports although integrally sound and academically accurate and sustainable on their own, were not contemplative of all the circumstances surrounding the construction of the building and the various input and exigencies of the Plaintiff herself for additions and alterations which were not in the initially approved construction plan.

  5. The second difficulty with the reports are that they do not support the above prayers of the Plaintiff that the Defendant is declared in breach of contract and is ordered to complete the construction or rectify the defects in accordance with the reports. The surveyors did not satisfy the Court that they were consulted during the construction steps, and that they compared the original plan and the actual building and found the construction not to be in agreement with the actual building. Secondly, it seems they are recommending remedial or reconstruction by different contractors whilst the Plaintiff is requesting the same to be done by the Defendant. Consequently, I do not find the reports to be of any direct evidential value to this case and I place no reliance on them.

  6. Consequently, I find that the Plaintiff has not satisfied this Court that the declaration and order prayed for are necessary to address the shortcomings in the performance of the contract by the Defendant. I find that the delay was not solely attributable to the Defendant and not fatal to the contract and in any event, damages are sufficient to compensate the Plaintiff for the delay and defects which can be proved.

  7. The third prayer of the Plaintiff also does not refer to the delay but seems to be making allusions that the moral damage, inconvenience and hardship she claims that she suffered resulted from either the Defendant’s poor workmanship or delay in delivering the house in satisfactory habitable state, but the Plaintiff is not specific in her pleadings and prayers. In this regard, I will make extensive reference to the leading case of Pindur vs Benoiton Construction Company [Pty] Ltd and another (CC 18/2013) [2014] SCSC 124 (28 March 2014). The then Honourable Egonda-Ntende CJ made the following lengthy and pertinent analysis:

  1. Delay analysis in building contracts is a complicated and technical piece of work that seeks to determine the difference between what was planned [as planned] and provided for in the agreement and what eventually occurred [as built]. The burden of proof is upon the person seeking to prove ‘unjustifiable delay’ and or ‘inability of the contractor’ to do so and to prove particularly the exact period of the resultant delay. In the instant case the burden of proof lies upon the plaintiff.

  2. This burden of proof is explained by Planiol Civil Law Treatise [An English Translation by the Lousiana State Law Institute] at Page 51 as follows:

He who alleges a fact contrary to the acquired situation of his adversary must establish its verity. As a consequence when a person exercises an action to obtain a thing which he has not, either a payment if he claims to be a creditor, or the delivery of an object, or the enjoyment of property which he has not in his possession, such person is bound to establish his credit or his right to the thing. This the meaning of the old adage: “Onus probandi incumbit actori” When the plaintiff has furnished proof, he has won his case, at least unless the defendant had made good against him an “exception” or a means of defense on the merits, which he in his turn must establish. The burden of proof in that case passes to the defendant, as is indicated by another adage: “Reus in exceptione fit actor.” In his turn the plaintiff may have an answer to make, which may destroy the defence; the defendant perhaps will reply to that, and the burden of proof passes thus from one to the other, for all their reciprocal answers. In order to express this effect with the aid of a formula which in turn can apply to both parties, they often generalize the above mentioned formula by saying: “the burden of proving incumbs on him who alleges.” (Comp. Art. 1315). That is a rule of law which should be respected by the judge.’

  1. With reference to the case of Ebrahim Suleman and others v Marie-Therese Joubert and others SCA No.27 of 2010 the Honourable Egonda-Ntende CJ continued with reference to the pronouncement of Honurable Twomey, JA, who stated:

12. In such circumstances applying evidentiary rules we need to find that the Respondents discharged both their evidentiary or burden of proof as is required by law. The maxim “he who avers must prove” obtains and prove he must on a balance of probabilities. In Re B [2008] UKHL 35, Lord Hoffman using a mathematical analogy explaining the burden of proof stated:

If a legal rule requires a fact to be proved (a fact in issue), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates on a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”

 

  1. The Honourable CJ concluded on that issue with the following:

  1. The words of Lord Goddard, CJ, in Bonham-Carter v Hyde Park Hotel Ltd (1948) 64 TLR 177, at page 178 are pertinent. I set the same out.

‘Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying: “This is what I have lost; I ask you to give these damages.” They have to prove it.’

  1. In the actual case, it is not in dispute that the contract provided for completion of the work in December, 2016. The Plaintiff came to Seychelles in October, 2017 and she moved into the house in March 2018 after first staying with family, then renting accommodation at her own cost because she refused the temporary accommodation offered to her by the Defendant. The Plaintiff claims SCR 60,000 for the rental accommodation. The Defendant did not deny the delay nor deny that the Plaintiff rented accommodation or contested the amount claimed. I award the Plaintiff the amount of SCR 60,000.00 as claimed.

  2. With respect to the engineering and the quantity surveyor’s report, I find that they were prepared as documents to assist the Plaintiff by bolstering her claims but failed to address all the issues to make them well-rounded, independently reliable and credible evidence. Since as concluded at paragraph 52 (above), I place no reliance on the reports, I also make no award for these claims.

  3. In respect of the claim for delay in completing the dwelling house from January 2017 to February 2018 in the sum of SCR 630,000,00, the evidence reveal that the contract did not have any provision addressing the eventuality of delay in the completion of the work. In fact, the Plaintiff did not raise the issue until she returned to Seychelles in October, 2017. Furthermore, the Plaintiff has claimed rental accommodation costs in the sum of SCR60,000.00 which has been awarded for that period of October 2017 to March 2018. Prior to that the Plaintiff was in Switzerland and there is no evidence brought by the Plaintiff that she could not return to Seychelles before October, 2017 because the house was not completed. Where there is no provision for calculating unreasonable delay in the contract, as in the current one, the Court may from the evidence consider whether the delay that has been proven is reasonable and compensable and if the Defendant does not provide a full defence for the delay, the Court may award such damages it deems fair and reasonable in the circumstances.

  4. Whilst the Plaintiff claims the delay was due to poor workmanship by the Defendant, the Defendant attributed the delay to additional work requested by the Plaintiff to which the Plaintiff’s own witness, Mrs Pinchon, averred that she advised the Plaintiff that the additional work for the basement apartment would incur additional cost, to which the Plaintiff agreed, and additional time. The evidence also revealed that certain part of the roof had to be extended as well as the deck due to rain water being blown in. I also find that the contract did not contain the building of a retaining or boundary wall at the bottom of the land despite it not being as effective in retaining the soil as one would have hoped. However, it shows that there were extra work being performed by the Defendant which more likely than not contributed to the delay in completing the house within the timeframe set for the construction of the initial 3 bedroom house.

  5. Considering all the circumstances, I find that the delay up to October, 2017 was reasonable and was contributed to by the Plaintiff’s exigencies. To that end, I award the Plaintiff only 5 months’ delay out of the 13 months claimed. I award the Plaintiff the sum of SCR 243,300.00 for the delay in completing the construction.

  6. In respect of the claim for moral damages for emotional distress and hardships by reason of travelling to Seychelles to find the house incomplete, manifesting numerous defects and wants of repairs and inconsistencies with planning permission and approved designs in the sum of SCR. 300,000.00, the evidence as reviewed above showed that the Plaintiff was very much aware that there were delays in the completion of the house and that she contributed to the delays by requesting additional works not included in the contract or even when the work such as the basement apartment was added to the contract, no reasonable provision to added time were made. Further, the Plaintiff has already been awarded the costs of rental accommodation and the proportion of delay attributable to the defendant. Consequently, I find this claim for moral damages to be extremely excessive. I award the Plaintiff the sum of SCR 100,000.00 for that claim.

  7. The Plaintiff’s claim is partly successful and the Plaintiff is awarded a total of SCR 403,300.00.

  8. I now look at the Defendant’s counterclaim. According to the Defendant’s testimony and provided by exhibits and pleadings, the Defendant claims the sum of SCR 669,284.00 for unpaid works with interest and in the sum of SCR 452, 935.80 for extra works with interest. The first part of the claim arises from the contract. They are for the final amounts on the original contract which stood at SCR 92,906 upon entry and SCR 576, 378/- after six months’ occupation, amounting to SCR669,284/-. The Plaintiff was rather evasive when questioned about these outstanding amount but admitted that these two sums are still outstanding. I award the Defendant the sum of SCR 669,284,00 as counterclaimed and which forms part of the contract.

  1. The second part which concerns additional work is contested by the Plaintiff. In my analysis of the evidence above I have found that the Defendant has indeed performed additional works at the request of the Plaintiff which contributed to the delay. The Defendant contends that these extra works included building a retaining wall, the outstanding sum for the trellidor which he had to pay instead of the lower cost for the burglar’s bars and work for the decking and other additional works as detailed by the invoice dated 31st August, 2018, exhibit D5. The Defendant claims the sum of the work to be SCR 452, 935.80 /-. However, exhibit D5 gives a total claim of SCR414, 795.00

  1. The same principles of proof rest on the Defendant/counterclaimant in proving its claim on the balance of probabilities as it would rest on the Plaintiff in proving her claim. I do not find it plausible for a company engaged in construction as a business for profit to undertake work not recommended by the customer and not included in the agreement free of charge. Secondly, the Plaintiff did not contest the cost and amount claimed for the works but maintained a blank denial that such additional works were requested or performed. I am satisfied that the Defendant/counterclaimant has discharged that burden and that the Plaintiff needs to make payment for the work performed. As the amount was not contested, I award the Defendant the sum of SCR SCR414, 795.00 as counterclaim for extra works.

  2. I award the Defendant the total sum of sum of SCR1,084 043.00 being the full amount counterclaimed by the Defendant.

  3. Having partially awarded the Plaintiff’s claim and awarded fully the Defendant’s counterclaim, the question now is in whose favour the judgment is entered. In the case of Provincial Bill Posting Co. v. Low Moor Iron Co. (1909) 2 K.B. 344 Kennedy L.J. stated:

     

" Now, however, a counter-claim may in ordinary cases be established, and if it exceeds the amount recovered on the claim the Court has power to give judgment for the defendant for the balance, if it thinks it right to do so; and similarly judgment for the balance may be given for the plaintiff if the amount recovered on the claim exceeds that recovered on the counter-claim. But the Court t must consider in each case whether it would be right to give judgment for the balance, and if it would not be reasonable or right to deal with the claim and counter-claim by a judgment for the balance, then judgment should be given for the plaintiff on the claim and for the defendant on the counterclaim, costs following in each case."

  1. Singleton, L.J. in Chell Engineering Ltd. v. Unit Tool and Engineering Co. Ltd. (1950) 1 All E.R. 378. However held the view that in order to create no uncertainty,


“It is usually better that the judgment should be in the form to which I have been accustomed, namely, judgment for the plaintiff for so much on the claim with costs and for the defendant for so much on the counterclaim with costs. That course prevents an involved argument about the difference between set-off and counterclaim.”

  1. The Seychelles Code of Civil Procedure makes allusion in article 226 albeit in respect of execution of judgment:

If there be cross-judgments between the parties, execution shall be taken by that party only who shall have obtained judgment for the larger sum, and for so much only as shall remain after deducting the smaller sum, and satisfaction for the remainder shall be entered, as well as satisfaction of the judgment for the smaller sum; and if both sums shall be equal, satisfaction shall he entered upon both judgments.”

  1. I therefore enter partial judgment for the Plaintiff in the sum of SCR 403,300.00 with cost and I enter judgment on the counterclaim in favour of the Defendant in the sum of SCR1,084 043.00 with costs. Interest on either judgment shall start at 30 days after the date of the judgment at the commercial rate should either or both of the parties fail to satisfy the judgment by then.


 

Signed, dated and delivered at Ile du Port on 13th day of August 2024.


 

____________

G. Dodin

Judge


 

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