IN THE SEYCHELLES COURT OF APPEAL

[Coram:     S. Domah (J.A) , A. Fernando (J.A) , J. Msoffe (J.A) ]

Civil Appeal SCA 03/2013

(Appeal from Supreme Court Decision 29/2012)

Heard:             08 April 2015

Counsel:          Mr. Pesi Pardiwalla for the Appellant 

                        Mr. Frank Elizabeth for the Respondent 

Delivered:       17 April 2015

JUDGMENT

S. Domah (J.A)

• The respondent had contracted the appellant builder to construct a driveway for her. She had employed an Engineer who prepared a plan and, thereafter, obtained the approval from the planning authority to proceed with the construction. Her Engineer supervised the construction. On completion, the driveway was accessible by some vehicles but not all. 
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• She brought an action against the appellant builder for defective construction and for breach of an agreement by it that it would undertake the remedial works, and claimed SRs90,000 damages in a case before the Supreme Court. The latter denied that the construction was defective and averred that  it has been according to plan and that it  had abided by the directives given by her Engineer as to direction, gradients and elevation as well as such specific instructions as had been given by him who had all along supervised the works. It also denied that it had at all undertaken to make good any defect at his own cost.
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• The learned Judge, having heard the employer, the planning authority and the defendant decided that the appellant was 80% at fault, and the Engineer – who was not a party to the case and purported to be a witness who had never been called - 20% liable. He awarded damages to the respondent in the sum of SR72,000.
• The appellant builder has put up 4 grounds of appeal, as follows:
• The learned Judge erred in finding that the driveway was not useable, in that this finding is not supported by the evidence adduced in the case.
• The learned Judge erred in rejecting the evidence of the Appellant on the matter of whether the driveway could be used or not and dismissing it as being “self serving.”
• The learned Judge erred in law in that he used the wrong principle in awarding damages.
• The learned Judge erred in awarding damages the totality of the damages claimed by the Respondent in her plaint and failed to carry out a proper assessment of the damages as required by law.
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• The respondent has cross-appealed on the single ground that the learned judge erred when he considered contributory cause/fault/negligence and consequently reduced the award of damages by 20% since the same was not pleaded by the Appellant.
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• GROUNDS 1 AND 2
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• Grounds 1 and 2 have to do with the learned Judge’s appreciation of the evidence. The rule needs hardly any citation that the Appellate Court will not interfere with the trial judge’s appreciation of evidence: see Charles Ventigadoo v Government of Seychelles, Leading Cases of Seychelles 1988 – 2010, p. 293; SCA 20(a) 2006.  In this case, however, the submission of learned counsel for the Appellant, Mr Padiwala, is that the judgment is flawed because the very first question which the learned judge asked himself for the purposes of determining this case was incorrect so that the conclusion he reached could not be correct.
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• As it is, the learned judge proceeded to ask himself three questions as follows:
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• “1. Was the driveway constructed by the defendant defective in that it was not a viable motorable access?
• 2. If so, was the defect caused solely due to the breach of contract by the defendant in that he failed to adhere to the breach of the approved plan …?”
• 3. What is the extent or degree of such contributory cause or fault or negligence, if any?
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• Mr  Padiwala referred us to several parts of the evidence and the judgment which tended to show that what the respondent had been complaining about is that the road was too steep; that some vehicles were able to climb the gradient but some were unable to do so; that even the vehicle of the planning authority officer, Mr Joel Philoe, “was unable to climb up the steep driveway, while he went on site.”
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• In fairness, we would grant the learned Judge the logic of the fact that if there was no defect in the first place, there would have been no case. He wanted to ensure first that there was a defect before he could ascribe responsibility for the defect to anyone at all. We are unable, therefore, to go along the submission of Mr Padiwalla on this score.
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• Even the second question the learned Judge asked, in our view, has been rightly asked:  whether the defect caused was solely due to the breach of contract by the defendant in that he failed to adhere to the breach of the approved plan.
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• However, the crux of the matter in the case lies in whether the learned Judge correctly answered the correct questions he put to himself. It relates to the issue of the cause of action. While he recited same, we are unable to see that he properly addressed his mind to same. There were two causes of action. One was found at paragraph 5 of the plaint with summons which read:
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•                         “The plaintiff avers that despite several attempts and entreaties by the engineer to the Defendant’s Director while on site to contain the works as per the pegged demarcation site and to stick to the gradient as per drawings, the latter persistently refused to do so.”
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• The engineer mentioned above is the respondent’s engineer. He was a key witness in the case. It is on record that learned counsel for the respondent was aware of the value of his evidence and did state that he would come to depose to that effect. Unless evidence was led by the respondent as regards the engineer’s attempts and entreaties which were purportedly dismissed by the appellant’s Director on site, the case on this score would not stand. And the best evidence was that of the Engineer himself who should have come to give such evidence.
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• As it is, the Engineer never came to adduce that crucial evidence. Hence, the averment that he had made several attempts and entreaties to the appellant but that the latter had persistently refused to abide by the drawings remained unsubstantiated. As opposed to this, we have the evidence of the appellant’s Director, that he had followed the plan and the directions given by the Engineer. The evidential burden had shifted upon the respondent to make her case.  
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• We have perused her evidence which is characterized by contradiction and implausibility. At one stage we read her saying that when she complained to the Engineer, the latter told him that the road was fine. At another stage, we read her  saying  that the Engineer told her that the builder had not followed his instructions in the matter. In the result, the only evidence we are sure about is that the built driveway ended up by being too steep and only some vehicles were able to make it to the top.
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• On what real evidence did the learned Judge rely to come to the conclusion that the respondent had proved her case is little perceptible on record. It would appear that he heavily relied on the ex post facto report of the Planning Authorities which concluded that the construction was not according to plan. The risks involved in relying on that report for the truth of what it stated and the conclusion it reached are multiple. Mr Joel Philoe who came to produce it and depose on it was not the one who had prepared it. He admitted that he had no knowledge of the facts while the construction was going on. On the crucial question of whether the gradient was within the norms, he stated that it was 1 to 4.3. When questioned further on how he came to that conclusion, his answer was that it was visible. He conceded that such a measurement can only be done by an instrument but that the Authorities had not used the instrument. The monitoring had not been done by him in the case but by another officer, Mr Derrick Marie, who no longer works at the place. The latter was not called as a witness to depose and subject himself to cross examination. The authorities are expected to do the monitoring work after the commencement notice.
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• Mr Joel Philoe also expressed some doubts on the content of the report. He, for one, blamed the contractor. The conclusion in the Report is that the fault is that of the Engineer who failed to supervise properly and that of the contractor who did not issue a reinforcement notice. Obviously, it is a case of the Planning Authorities blaming the Engineer and the respondent blaming not on the Engineer but the contractor who, for his part, is saying that he followed the instructions of the Engineer.
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• The other flaw in the report, with respect to its probative weight, is that it is issued by the Planning Authorities in 2009 when it should have been issued soon after completion in 2007. In fact, there is no issue of a report after completion of construction despite the fact that the respondent stated that she complained to the authorities after a month. As per the correspondence Mr Nelson Bristol was expected to monitor the work from the commencement notice duly issued by the contractor till the completion. But the report shifts the blame squarely on the shoulders of the Engineer and concludes that “clearly, there was a lack of supervision” by him. He further blames him from not issuing reinforcement notice. He relies on the supposed conduct of the Engineer rather than on the facts and figures as he found them on site to conclude that there was no compliance with the approved plan: a conclusion as unscientific and subjective as belated and compromising from the part of an authority which was expected to be monitoring the project.
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• Mr. Joel Philoe states that the reinforcement notice is issued by the Engineer. The report lays the blame of that supposed omission on the contractor. The learned Judge laid that responsibility upon the contractor before saddling it with liability. The learned Judge relies basically on the content of the report without addressing his mind to the conflict in the evidence as regards the chain of responsibility properly resting on the various players in such a project: namely, the contractor, the engineer, the monitoring officer and the planning authority.   
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• On the cause of action as formulated in the plaint at paragraph 5, therefore, this is our conclusion. While the court may have asked the right questions, those two questions were not properly answered with regard to the facts in evidence.
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• Mr F. Elizabeth pointed out to the second cause of action in the matter, formulated at paragraph 8 of his plaint. On this aspect, the case of the respondent was that the appellant had agreed to do remedial work on the driveway at its own cost. Evidence was led of the fact that the parties had liaised on the problem of the steepness of the driveway and a substitute plan was prepared and approved by the Authorities. There was also a quotation of how much the remedial work would cost. However, appellant’s Director denied that he had at all agreed to undertake remedial works at his own cost. Had there been such an agreement, there would have been no quotation, has been the submission of the appellant. That makes complete sense to us. Besides, procedurally, evidence should not have been allowed for such an oral agreement unsupported in writing.  On this aspect of the case, the appellant should have been called on his personal answers.  
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• A number of dissatisfactions may be noted in the version of the respondent on this aspect of the case as well. We have it on record that the respondent paid the builder a month later. Asked whether she would have paid him at all, and a month later at that, if there was a complaint of defective work, her answer was that, on the day of payment – which was one month later - it was raining. The husband tried to drive up that road and the contractor stated that the road was slippery and later it will be OK. That is little credible. It cannot be that only one month later, one would realize that the driveway constructed is very steep.
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• The existence of the substitute plan throws another doubt on the narrative of the respondent. If the work was not done according to the first plan, all that had to be done was to show where the work was not done according to plan and stick to the plan and not to draw up another.  There was no need for a substitute plan. It is more logical to assume that the substitute plan was for a re-construction rather than a re-adjustment.
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• The evidence is clear that it was the engineer’s responsibility to ensure that the work was done according to plan.
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• It is eloquent that in the Quotation submitted by the respondent (P5), the title is reconstruction and the works to be done are suggestive of a reconstruction not as per the previous drawing as such but as per new drawing attached.
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• In the light of the above, we agree with the submission of learned counsel for the appellant that there is very little evidence on which the court could have come to the conclusion that, if fault there was, the responsibility lay on the shoulders of the appellant when there were other persons involved in the supervision and the monitoring and all that the builder had to do was to follow expert advice of the Engineer under the monitoring responsibility of the Planning Authorities. 
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• In the light of the above, we take the view that there is merit in Grounds 1 and 2. They succeed. The learned Judge, on the evidence could not have come to the conclusion that, supervised as the appellant was by the respondent’s Engineer and monitored as he should have been by the Planning Authorities, he was in any way to blame in the construction of the road which, on his evidence, he carried out according to plan submitted, if with the slight deviations indicated by his Engineer who was no other than the agent of the Appellant in charge of the project.
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• The learned judge should have addressed his mind properly to the chain of responsibilities that rested on the various persons based on the facts in evidence before coming to the conclusion he did. He did not do that.
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• GROUNDS 3 AND 4 AND THE GROUND IN THE CROSS APPEAL
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• In the light of our decision on Grounds 1 and 2 which excludes a finding of liability of the appellant on the facts as adduced in evidence, a need to consider Ground 3 and 4 which have to do with quantum does not arise.
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• With regard to the single ground in the cross appeal, our determination has been that, on the evidence no blame could be attached to the contractor who was only the doer of the works under the professional supervision of the respondent’s Engineer and under the official monitoring of the planning authorities which seemly never took place. For that reason, the issue of quantum raised in the cross appeal falls by the wayside.
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• RELIEF OUTSIDE PLEADINGS
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• None the less, as a matter of law, learned counsel is correct in raising this ground, if for purposes of future guidance. In terms of procedure and pleadings, the rule bears no repetition that parties are bound by their pleadings and that they may not ask nor can the Court grant any relief which goes beyond the four corners of the plaint and the pleadings. Nor may it consider any issue any more than grant a remedy flowing from that issue when that issue was not joined by the parties in the first place. Contributory negligence in this case was never part of the plaint nor the pleadings. As such, it was incorrect for the Court to proceed to a judicial excursion for the purposes of considering,  deciding the issue of contributory negligence which had not been pleaded and granting a relief thereon: see Tirant v Banane 1977 SCA 219; Therese Sophola v Antoine Desaubin SCA 13 of 1987; Andy Confait v Sonny Mathurin SCA 39 of 1994; Equator Hotel v Minister of Employment and Social Affairs SCA 8 of 1997; Georges Verlacque v Government of Seychelles SCA 8 of 2000; Kevin Barbe v Jules Hoareau SCA 5 of 2001; Etienne Gill v James Gill SCA 4 of 2004. 
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• Learned counsel for the appellant, indeed, rightly conceded that the Court went ultra petita on this issue. What is more surprising is that liability, even if partial, is ascribed to a party who was not a party to the case. He was not even a witness who came to depose. We have never had his version of facts. The action was directed by the respondent against the contractor and not against the respondent’s engineer. In the case of Boulle v Mohun [1933 MR 242], the Court held that contributory negligence should be first raised as an issue in the pleadings before the Court may pronounce itself thereon. This principle was endorsed in the jurisprudence of Seychelles, as early as 1977 in the case of Tirant and Anor v Banane 177 SLR 1977.    
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• We allow the appeal for the reasons given above. With costs. A determination on the issue raised in the cross appeal does not arise in the light of our decision on liability, subject to the comments we have made as regards procedure and pleadings on matters of contributory negligence. The cross appeal is dismissed. With costs.
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