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Shree Hari Construction (Pty) Ltd v Boniface & Or (SCA 26 of 2013)  SCCA 24 (16 August 2016);
S. Domah (J.A)
- We have read the judgment of our brother Fernando, JA. We have no disagreement with him on the principles of law he has followed. However, our analysis of the real issues and the principles, as we see them in this appeal, lead us to a conclusion different from his.
- This appeal came to us on a judgment of the Supreme Court and involves a civil claim and a counter claim between, on the one hand, a builder, Shree Hari Constructions (Pty) Ltd (“SHCL”), and, on the other, its employers, a couple, Solana Boniface and Philip Lafortune (“the respondents”). The learned Chief Justice found in part for SHCL and in part for the Respondents in the action and the cross action. He awarded damages as follows: SR 495,837.35 in favour of SHCL and SR492.508.64 in favour of S&P. SHCL appealed and the Respondents cross appealed.
- We reproduce the grounds of appeal of SHCL verbatim on account of the involved language used. They are as follows:
The learned Chief Justice erred in his decision in disallowing the Appellant’s claim under the fluctuation clause while he appreciates the legality of the claim through the uncontroverted terms of the contract.
The learned Chief Justice failed to understand himself of the effects of the Appellant’s QS report in that he failed to see that the QS had considered the payments received by the Appellant and the net value of the works done exclusive of the payments made by the Respondents.
The learned Chief Justice failed to justify in detail, as to how the defective works would have cost the respondent in the total sum of SR486,467.00 being the award against this Appellant.
The learned Chief Justice failed to appreciate that the Exhibit D53 that he relies on for the award against this Appellant is not a genuine and straight forward document but is arbitrary and one sided.
The learned Chief Justice despite having raised the issue for determination in page 8 of his judgment for alleged defective works at the time of termination of the contract to match the sum necessary for rectification of such works grossly failed to arrive at ant rational decision but concluded that the Appellant is liable for such defective works in the sum of SR464,017.00.
The learned Chief Justice grossly failed to take note of the Appellant’s every single payment certificate bears in clear terms of the fluctuation clause, thus the Respondentswere given due notice of adjustment of price due to fluctuation. It is wrong therefore to hold that no notice of fluctuation was given while disallowing the claims.
The learned Chief Justice whilst not relying on D45, a valuation of report of Mr Oriarewo, citing the valid reason, wrongly concluded that he would rely on this document based on the evidence of another expert and through his report D53. Thus, The learned Chief Justice is inconsistent in his views and shown contrary opinion to his own findings.”
- The grounds of appeal of the Respondents are as follows:
- that the Honourable Judge erred in law in awarding the Appellant the sum of SR45,060.00 cts in extra works done, in that it was neither proven on the evidence, nor the said works agreed upon between the parties.
- that the Honourable Judge erred in law in awarding the Appellant the sum of SR450,777.35 cts as part of the value of the works done in that:
- It was not proven on the evidence adduced;
- The evidence on valuation of work done was unreliable and arbitrary;
- The Honourable Judge failed to take into account the delay in construction and its impact on the agreement and award;
- The Honourable Judge erred in failing to take into account the Appellant’s defective work in the construction, and the resulting costs.
- that the Honourable Judge erred in law in failing to award the Respondents the sum of SR42,843.00 cts for the materials purchased by the Respondents and lost and misplaced by the Appellant, whilst they were in the Appellant custody, on the work site.
- that the Honourable Judge erred in law in failing to make an award for moral damages for the Respondents in that he determined that the works were delayed by the Appellant, and further there were defective works, inter alia, and consequently it was fair, proper and just to make a fair order.
STRUCTURE OF THIS APPEAL AND CROSS-APPEAL
- We shall deal first with the appeal of SHCL in Part 1 of this judgment before we consider the appeal of the Respondents in Part 2. But before we do so, it is worth noting that all the above grounds – except one (Ground 7) - are grounds challenging the trial court’s finding of facts. The rule today is cast in stone that an appellate jurisdiction is ill-placed, hearing a dispute as it does relying on a record of transcript in black and white, in a 1-dimensional view on paper, to be a better judge than the trial judge who heard the case in a 3-dimensional view and in real life. One justification for the appellate court to interfere with the decision of the trial court would be where the appellant shows that the conclusion reached by the lower court on its findings of fact cannot reasonably be correct. Or that the trial court missed an important detail/s which, if it had taken into account, would have led to a different conclusion. The rule is the sovereignty of appreciation of the trial court. An appellate court should be more concerned with the law, which includes its application to the facts. But it may not substitute its own conclusion to the conclusion reached by the trial court. It was for both SCHL and the Respondents to show that the conclusion reached by the learned Chief Justice did not follow. Ground 7, of SHCL’s appeal, is a ground of mixed law and facts. We shall deal with that on its own.
- Learned counsel for SHCL has argued before us that the cross action of the Respondents was engineered to defeat the action of SHCL. He relies on the dates on which the cases were lodged and the appeals were lodged. We have given this aspect due consideration. But we are unable to accept it for a number of reasons. That 84/2011 came late in the day cannot be denied whether as a case before the court or on appeal. But, first, the dissatisfaction of the Respondents with the work did not start after SHCL had lodged its case. The differences had started brewing from the very early days of the work: at first in a very polite fashion before it ended up in litigation. Second, the two parties in the case, on the facts, are unequal in resources to rush to court. Third, the averments in the action of the Respondents are the very reasons which led the Respondents to terminate the contract. The order in which cases are initiated in court does not necessarily reflect ex post facto tactic. While it is true that a later case may be brought as an afterthought, it is also true that the first case in time may be designed to steal a march upon a later case. Cases in court rely on facts in evidence. We cannot go along the line suggested by learned counsel for SHCL that the case of the Respondents was engineered to blow up the case of SHCL. Its genuineness is documented and the history of the grievances pre-dates the timings of both actions.
APPEAL OF SHREE HARI CONSTRUCTION (PTY) LTD
- With respect to the appeal of SHCL, we find it convenient to adopt the following structure: Grounds 1 and 6 will be taken together. So will Grounds 3, 4 and 5. On the other hand, Ground 2 will be treated on its own as well as Ground 7.
GROUNDS 1 AND 6
- Grounds 1 and 6 have to do with the fluctuation clause and its applicability to the facts of the case. It is the case of the appellant that the then Chief Justice erred when he disallowed “the builder’s claim under the fluctuation clause inasmuch as that clause formed part of the contract and this was not denied.”
- The learned Chief Justice rejected “the claim arising out of an alleged fluctuation of currency or labour rates.” His reasons lay in the fact that this had not been pleaded and no notice had been given.
- We have considered the matter. We note that the contract does contain a fluctuation Clause for labour and consumables (water and electricity) in Clauses 8, 9, 10 and 13. But the Clause did not give a Charter to SHCL to apply it at its will. The learned Chief Justice rightly applied section 71(d) of the Seychelles Code of Civil Procedure not to engage into this avenue. As regards currency fluctuation, it was not mentioned in the contract at all. The currency in the agreement is given in Seychelles rupees. If the letter subsequently confirming the agreement mentions currency, it is with regard to 15% of the contract sum intended to pay the wages and airfares of expatriate workers. It was an item sought outside the four corners of not only the contract but also the plaint and pleadings. Section 71(d) of the Seychelles Code of Civil Procedure operated to pre-empt any consideration of the fluctuation clause. Grounds 1 and 6 fail.
- The language under Ground 2 is convoluted. I understand it to mean that the learned Chief Justice did not make a proper appreciation of the report of the Appellant’s QS as regards the sums that had been paid and the sums that were due.
- Now, the appellant was awarded the sum of SR486,467.00 in a claim it had made of SR1,772,740.54. The reasoning process of the learned Chief Justice had been as follows. He had discarded the figure given in D45 which put the value of the works at termination at SR401,625.12. He had equally discarded the figure given by the appellant. Both figures came from parties’ witnesses and looked to be in the opposite extremes to be accepted. In such situations a court is in search of objective criteria to reach a reasonable figure. In this case, the learned Chief Justice picked up – and rightly so - the figures in the three Certificates which were either due for payment or had been paid. These amounted to SR810,778.13. He applied his judicial common sense to assess the rate at which the work would have progressed for the remaining period until it was stopped. He came to the figure SR940,333.20 as not too far off the mark.
- Was this reasoning erroneous? No reasonable person would think so. Witnesses of parties to a case come up throwing either inflated or deflated figures, depending upon who between the claimant and the defendant has summoned them. Nigel Roucou was no less a QS than Arthur Oriarewo. If the latter was incompetent to give the figures, so was the former. The Court’s function is to come to a figure based on objective criteria where the experts’ testimony are not acceptable. This is exactly what the learned Chief Justice did. The objective criteria in this matter were the payments as had been made to which the learned Chief Justice added some other objective variables of time and rate of performance. It showed an objective and scientific process of reasoning on ascertainable facts in the case. Ground 2 fails.
GROUNDS 3, 4 and 5
- Grounds 3, 4 and 5 have to do with whether or not there were defective works and, if there were, the extent thereof. The learned Chief Justice came to the conclusion that there were.
- We have shown above that that the then learned Chief Justice did not “solely relied on the report for entertaining the award against this appellant, especially the valuation of remedial works attached along with Exhibit D45.” He had done anything but that.
- Learned counsel spoke of a clandestine arrangement between DW3 and Mr Oriawero for the production of the report in D45. He invited us to compare and match them to detect the complicity and bias. He submitted that no reliance should be placed on this document. If we were to go along the line suggested by learned counsel, we would be condoning a procedural lapse from the part of learned counsel.
- We explain. It was open to learned counsel for SHCL to cross examine the relevant witnesses, more particularly Aminu Yawale, on these matters. But he chose not to do so.
- To choose silence as an option in civil proceedings when there arises a duty to rebut documentary evidence which has been admitted by a formal Ruling is as good as laying down arms in a battlefield when the enemy is shooting. It makes no sense for one to raise allegations of complicity and bias – as learned counsel is doing now - after the enemy shot has maimed one. Theories of complicity and bias are easily concocted in the absence of those against whom they are made until they are as easily demolished by facts by them. Provided that they are given to chance to demolish them. Was a chance given? It would have been, had learned counsel for SHCL raised these issues, subjected them for cross-examination and re-examination as the case may be. At that time, we would have legitimately examined the points along with him. As he did not given that chance, his theory is a mere theory without substance. We decline to consider it in the name of fairness and due process under the rule of law.
- Learned counsel for the SHCL also submitted that reliance should be placed on Exhibit 38, the report of Architect Terrence Camille. However, the evidence of this witness is not of much help to the cause of SHCL. He admitted he had come to depose for three things basically: the form work of the roof; the direction of the grid lines and the finish on the columns. He acknowledged in his side comments that the client had dissatisfactions with the builder. Accordingly, we would not disturb the findings of fact of the learned Chief Justice. Grounds 3, 4 and 5 are dismissed for lack of sound reasoning.
- With this we come to the crucial issue raised by D45 in the case which is under Ground 7. First, this ground is worded this way:
“The learned Chief Justice whilst not relying on D45, a valuation of report of Mr Oriarewo, citing the valid reason, wrongly concluded that he would rely on this document based on the evidence of another expert and through his report D53. Thus, The learned Chief Justice is inconsistent in his views and shown contrary opinion to his own findings.”
- Three aspects of this ground should engage our mind. One is that this ground does not challenge the admissibility of D45. Second, nowhere in the appeal is the Ruling of the learned Chief Justice challenged on the admissibility of the document. What is challenged is the weight which the learned Chief Justice attached to part of it.
- In his submission before us this is what learned counsel for SHCL argues: “the learned Chief Justice solely relies on the report for entertaining the award against this Appellant, especially the valuation of remedial works attached along with Exhibit D45.”
- The judgment reads: “I have noted above the problem with Exhibit D45, in that it was not possible to test its veracity, given the absence of its author. Nevertheless in the light of the testimony of Jovan Yocette who inspected the works in question and made a report, I am prepared to accept firstly that there was defective works left behind by SHCL, ….I accept that to clear those defects would cost SR464,017.00 and when you add solution ‘b’ costed at SR22,450.00 the total sum comes to SR486.467.00 only.”
- It bears repetition that the learned Chief Justice did not rely solely on the evidence of D45. He sought support from the evidence of Gioven Yocette. There was ample evidence that there were defects in the delivery of the works undertaken by SHCL. Architect Terrence Camille was economical in speaking about it because he is an Architect whose tasks is different from that of an Engineer who can speak about it. In this regard, Mr Lownam, the Structural Engineer, gave details of the defects in the construction and the remedial works that were undertaken and that were due. Mr Lowlam, had been visiting the work site often and had to intervene to rectify the work time and time again. Even the QS Nigel Roucou, witness for the SHCL, in his report, does make the comment that he was put into the picture “that the works were not to the satisfaction of the client.” QS Nigel Roucou does add that he took these into account in the assessment. However, the least we would have expected of him is to show at least where and how he has taken them into account in his calculation. He does not.
- DW1 spoke about them and produced documents and exchanges between them and the builder. Witnesses have spoken about them: the weak soil compaction which allowed for rivulets of water flow; the honeycombs in the masonry; the black and uneven plastering; the unevenness in the surfaces because old timber had been used as setters; the breaking down of three out of 5 columns; the sight of exposed steel when the form was taken out; the laying of blocks too high which needed to be removed; the doors that did not fit properly; the arch that did not look like one; the sound of void in the plastering etc. The failings are fairly documented: inter alia, in D53, in the photographs produced not only in D45 whose admissibility has not been challenged on appeal.
- What the Project Implementation Unit through Mr Oriarewo did was simply make an autopsy of the defects of what had been happening. The type of defects we are talking about in this project is nowhere in the discipline of rocket science. The layman could see them, note them and make a case on them, without the need of an expert. As rightly pointed out by DW1: “This sort of work, you usually go and you will see that;” “any woman will be able to see with your normal eyes.” Jovan Yocette confirms it: these are defects which are visual on site and do not need an engineer or an architect to uncover. They are not inherent that require experts to use their science to diagnose, identify, detect and then report on. They were physical, visible, palpable and some of them measurable. SHCL’s witnesses adumbrate their existence. The report of Engineer Lowlam speaks of them. Above all, the oral evidence thereon is documented in letters to SHCL. One of the main reasons for the termination was the sub-standard work produced in this instance for reasons best known to SHCL. The case of the Respondents does not hang on the thread of D45. There is preponderant evidence in support. There is a duty implied in a contract of work that the work will be carried out in a good and workmanlike manner: Billyard v Leyland Construction Co Ltd  1 All ER 783. That would have been enough to dispose of this ground. But some further comments on the source of D45 would complete the picture.
- Mr Arthur Oriawero was a witness who could not come to depose personally on D45. But he had prepared his report after carrying out a visit on site. This report was produced by some other officer of the very office which had been mandated to carry it out. He was a Nigerian national and a foreigner on contract at the material time of the dispute. His contract having expired by the time of the hearing, he had left jurisdiction.
- Admittedly, it is he who had direct knowledge of the defective works. By profession he was a Quantity Surveyor. By post, he is much more than a Quantity Surveyor. He was heading the Project Implementation Unit in the Ministry of Land Use and Housing which is the Ministry that approves projects and imposes conditions on implementation. On the evidence, Mr Arthur Oriawero was not acting on his own as an expert for the respondent employers. The report had been triggered by a complaint to his Unit and prepared by him in his official capacity. The one person who came to produce the report was his successor with the necessary authority from the Permanent Secretary of that same Ministry: namely, Mr Aminu Yawale. The official function of the Project Implementation Unit is project implementation from the beginning to the end. The Report was prepared under the heading of the Ministry and signed on behalf of the Ministry.
- When learned counsel for the Respondents moved for the production of the report through Mr Aminu Yawale, learned counsel for the appellant builder objected not on the ground of admissibility but on the stated ground that “I will be unable to cross examine this gentleman.”
- The learned Chief Justice quite rightly admitted the report following a formal ruling on the matter. After having stated the law, he invited learned counsel for the appellant to test the veracity and the credibility of the document. Learned counsel declined to do so. He chose to allow this witness to walk out of the witness box with his examination-in-chief intact and the content of the report untested.
- The legal effect of an absence of cross examination is too well known to be rehashed here. A party which fails to cross-examine a witness in the box is deemed to have adopted the evidence of the untested witness. As such, learned counsel cannot be heard to say that he had objected to that report being taken into account before the ruling. There was a ruling against him to which he should have complied. He opted not to bow down to the Ruling, with legal consequences naturally flowing therefrom.
- The fundamental rule on cross-examination is that a party who fails to cross examine a witness is taken to accept the deposition of that witness as is. In Wood Green Crown Court, ex parte Taylor  Crim LR 879, this all-too-obvious principle was judicially consecrated in the following terms:
“a party who fails to cross-examine a witness upon a particular matter in respect of which it is proposed to contradict him or impeach his credibility by calling other witnesses, tacitly accepts the truth of that witness’s evidence in chief of that matter, and will not thereafter be entitled to invite the jury to disbelieve him in that regard.”
- What is the purpose of a cross examination? It is to “show that the witness is not to be believed on oath.” If he is not cross-examined, it is to be reasonably assumed that he is to be believed on oath. It was open to learned counsel for the appellant, if his position was that the evidence of witness Aminu Yawale was to be discredited, to put some basic questions in relation to what he had testified to. He should have been cross-examined, about his means of knowledge about the facts to which he has testified, his opportunities for observation, his powers of perception, the quality of his memory, mistakes, omissions and inconsistencies in his evidence and omissions and inconsistencies in previous statements that relate to his likely standing so that the Court may evaluate the truthfulness or lack of it of the document or even its weight for that matter. As Peter Murphy on Evidence, 8th Ed., p. 586-8, comments. There are two direct consequences of a failure to cross examine a witness. One is purely evidential in that “failure to cross examine a witness who has given relevant evidence for the other side is held technically to an acceptance of the witness’s evidence in chief.” The other is a tactical one: “Where a party’s case has not been put to witnesses called for the other side, who might reasonably have been expected to be able top deal with it, that party himself will probably be asked in cross examination why he is giving evidence about matters which were never put in cross examination on his behalf.”
- It would appear that learned counsel chose to do so for the purpose of canvassing the issue on appeal. He was basically contemplating an appeal, at the expense of his client, well before the hearing was completed. Gone are the days when counsel used to play a cat and mouse game in the conduct of their cases. Counsel are under a duty to put the case fairly to the Court, in the best interest of the client in search of truth and not otherwise. The proper course for learned counsel was to challenge the witness while he was in the witness box or, at any rate to make it plain to him at that stage, by the proper questions, that his deposition is not accepted: see Hart (1932) 23 Cr. App. R 202.
- As we pointed out, at the hearing of this appeal, a couple of simple questions would have sufficed such as:
Q: Mr Aminu Yawale, you do not have personal knowledge of the facts stated in the report you have produced?
Q: Are you aware that witnesses who have left jurisdiction may be summoned by the court and they do come in many cases?
Q: If I put it to you that the report is not reliable for this Court to find that there was defect in the construction?
Q: If I put in to you that my client did everything that was his duty to do under the contract?
- Once there is a failure to cross-examine, counsel may be prevented from even a suggestion in his closing speech to the jury that the unrebutted evidence should not be believed: see Bircham (1972) Crim LR 430. If he may be prevented from making a mere suggestion, he should be a priori prevented from raising such a question on appeal.
- The question now is as to what is the manner in which the Court assesses evidence which has not been cross examined upon. It may reject it if that evidence is manifestly incapable of belief: see Lovelock  Crim. LR 821. This was not such a case. The Court may accept the unrebutted evidence in its entirely: see Wood Green Crown Court, ex parte Taylor [1995 Crim LR 879. It may seek support of that evidence from other depositions: see Laxmibai (Dead) Thr. L.Rs. & Anr. v. Bhagwanthuva (Dead) Thr. L.Rs. & Ors., AIR 2013 SC 1204.
“31. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.” (Emphasis supplied) (See also:Ravinder Kumar Sharma v. State of Assam & Ors., AIR 1999 SC 3571; Ghasita Sahu v. State of Madhya Pradesh, AIR 2008 SC 1425; and Rohtash Kumar v. State of Haryana, JT 2013 (8) SC 181).
- This is exactly what the learned Chief Justice did. He asked himself whether there were other pieces of evidence which supported the evidence-in-chief. There was more than enough in support, independent of the content of D45, to conclude that there were defects in the construction. There was also evidence from which an assessment could be made scientifically of what were the obvious and visible defects and what would be the reasonable cost to remedy them. The judgment of the learned Chief Justice, accordingly, cannot be impeached on the ground that the judge relied on inadmissible evidence to decide in favour of the Respondents.
- Were the officer/s moonlighting? In my view, the comment made by the learned Chief Justice was uncalled for. He made that inference from midair well before QS Nigel Roucou had completed his deposition. It was an inference drawn from inference and not inference drawn from facts in evidence. In truth, the facts in evidence showed a different story. Nigel Roucou had admitted that there is a duty on the authorities to supervise the work. The Learned Chief Justice again intervened to have his view across that Arthur Oriarewo was doing private work as a public officer and therefore moonlighting. Judges do sometimes give in to the temptation of leaping into the arena, thereby losing their cloaks as judges at that point in time and for that duration. This was one of those unhappy instances in an otherwise well-reasoned out judgment. Thereafter, to give a colour of legitimacy to his inference not drawn from facts, the learned Chief Justice used the word “moonlighting” it in his judgment. In our view, that self-justification was avoidable.
- When the Ministry of Land Use and Transport gives an approval to any project, they have a duty to ensure that the construction is as per plan and as per conditions imposed. They have a duty of supervision as was admitted by Nigel Roucou. That is evident from the very name of the unit: the Project Implementation Unit of the Ministry of Land Use and Housing. Arthur Oriarewo was not privately engaged by the Respondents.
- The Respondents had regarded themselves, rightly or wrongly, having fallen prey to the vagaries of their trusted builder who, they felt, had started holding them to ransom. They began to question the company’s capacity and competence to deliver and to deliver at all. They had written letters upon letters but to no avail. A letter from their lawyer had also been sent. Their loan payments had been suspended and interests had started accruing on them. Their only recourse was to complain to the authority which had given the authorization for project implementation. More than a private matter between private parties, it had become a matter of official scrutiny. That is how the Ministry had entered the scene.
- To achieve an orderly transition from tree dwellings to new towns, various countries in the construction industry have tried to regulate the sector by introducing building laws as early as the seventeenth century. In a number of jurisdictions, legislations are antiquated, employers unprotected against builders, not all of alike competence, capability and honesty. In emerged jurisdictions, the legal protection is ensured, inter alia, to the small employers with limited funds and big loans intent upon realizing their only dream of a heavenly home of a lifetime. The construction industry is properly regulated with specialized professionals in a legal framework of up-dated construction laws administered by Construction Courts interpreting universally standardized contracts. In Seychelles, the Project Implementation Unit may not enter into the badly drawn up contracts between the builders and the modest employers. It does at least ensure within limits that the terms and conditions imposed on the project permits are complied with. A country not addressing the issues involved in the construction industry is taking a serious risk on its governance policy. It has come to our knowledge that the Fair Trading Commission is so concerned in the current weaknesses in the construction industry in Seychelles that it has embarked on a research which will “enable the commission along with other authorities to create awareness with regard to the rights and responsibilities of both the consumers and the service providers where there is a gap, thereby improving consumer welfare and improving service quality.”
- In our analysis, all the grounds of SHCL having failed, its appeal is dismissed. With costs.
APPEAL OF THE SOLANA BONIFACE AND PHILIP LAFORTUNE
- We now deal with the appeal of the Respondents who employed SHCL to provide the labour to get the project off the ground. In their appeal, their grievances are only as regards the quantum. They submit that the award of SR45,060.00 cts to the builder for extra works was unjustified in that there never was any agreement, nor any evidence for same(Ground 1); the award of SR450,777.35 was equally unjustified inasmuch as it failed to factor in the defect in the works and the delay which had resulted in the completion (Ground 2). They also submit that SR42,843.00 cts of material had been delivered to the builder which has been unaccounted for (Ground 3). Finally, they are aggrieved that there has been no award for moral damages which had been claimed in the sum of SR100,000.00 (Ground 4).
- On the issue of extra works, it is incorrect to state that there was no evidence and no agreement in relation to the extra works. The learned Chief Justice in his judgment stated that “(T)here has been evidence that the extra works were authorized.” We have checked the transcript and we have found that the Respondents were following the progress as well as the lack of progress of the work with great attention and they had been aware of the plan. As the work progressed, alterations had been made and new materials purchased for same. This could not have been done without the knowledge and implied agreement of the Respondents. Ground 1, therefore, fails.
- What we say about the evidence in Ground 1 is also true for Ground 2. That extra works had been done cannot be denied. Nor can it be denied that a construction had come off the ground and the site not abandoned. The defective works have been taken into account as explained in Grounds 3 to 7 of the SCA 83/2011. We have also adverted to the rationale of the learned Judge in reaching the figures. As regards the resulting costs in correcting the defective works, there is evidence that corrective works had been done when identified. We also need to take into account that this was a case in contract rather than in tort where the prejudice caused by the act or omission is reparable. As regards the issue of delay, if the learned Chief Justice did not award for delay, it would appear that the delay was caused by the circumstances rather than by conduct of parties. It was ill advised for both parties: SHCL and the Respondents to agree to such an up market construction, all with their obvious limitations. On the evidence, SHCL did not have either the resources and/or the experience at that level. Likewise, the Respondents lacked the resources and/or experience of contract management of a project with materials to be supplied by the Respondents and labour to be supplied by SHCL. As rightly commented by the learned Chief Justice on the progress of the work, several extensions had been acquiesced in by the Respondents. Ground 2 fails.
- Ground 3 relates to a claim of SR42,843.00 cts which was arguably ignored by the learned Chief Justice for materials purchased by the Respondents and lost or misplaced by SHCL. We note that the judgment simply speaks of the cost of rectifying the defects when there was evidence adduced by the Respondents that the timber that had been supplied to them were not found on site. The complaint on its disappearance from site had been reported to the Police. Later, some timber had been returned on site but not quite the one that had been supplied. Putting a value to what had been lost when some had been returned placed the judge in the same difficulty as the Appellate Court. How do we come to a figure when even the trial court could not on the absence of evidence by Solana Boniface? She spoke of 36 pieces of timber which had gone missing from the container which was under the custody of SHCL. What had been returned were in pieces glued together. Photographs of them have been produced (D39-D32). The other issue of law on material delivered to contractors is at what stage in the contractual relations could it be said that the property in the materials reverted to the employers in a contract of this nature which had been terminated. We have searched for evidence in vain. Ground 3 for that reason fails.
- Ground 4 relates to the question of moral damages. The learned Chief Justice was correct in his proposition of law that moral damages for breach of contract had to be specifically pleaded and proved. It cannot be presumed. This action was not based in tort but in contract. Ground 4 is dismissed for lack of merit as a matter of law.
- The cross appeal of the Respondents, having failed on all the four grounds is dismissed with costs.
OUR FINAL REMARKS
- The two cases SCA 83/2011 and SCA 84/2011 were consolidated and heard together in the court below as well as on appeal. All technicalities shred aside, this consolidated appeal rested on an answer to three simple questions. First, in the case of SCA 83/2011, was there any outstanding sum due by the Respondents to SHCL less the disbursed sums for works that had been performed? The answer could not but be in the positive. Second, in the case of SCA 84/2011, was there any sum payable for defective works on the state of the evidence? The answer could not but be in the positive. Third, what is then the quantum: (a) left as payable by the Respondents to SHCL; and (b) payable for defective works by SHCL to the Respondents. The quantum in either case was decided by the learned Chief Justice rationally in the sum of SR495,837.35 in the case of (a); and in the sum of SR492,481.00 in the case of (b). Both parties argued on the peripheries and the technicalities but hardly on the crux of the case.
- The appeal and the cross appeal are dismissed with costs. A copy of this judgment shall be filed in each of the records of SCA 83/2011 and SCA 84/2011.
S. Domah (J.A)
I concur:. …………………. F. MacGregor (PCA)
- The Appellant has appealed and the 1st and 2nd Respondents have cross-appealed against the judgment of the Supreme Court dated 28th of June 2013, wherein the learned Trial Judge at the conclusion of his judgment had said “As the parties have succeeded only in part, and in so doing have garnered about the same amount, I will order each party to bear its own costs.” He had come to the following findings:
- that the Appellant was “entitled to only to the value of the works at the time of termination and any extra works that were authorised to be performed. I accept that the SR 940,332.20 represents the value of the works as at the time of termination of the contract; of which the SHCL (Appellant) had already been paid SR 489,555.85 by Philip and Solana. This leaves the balance outstanding to SHCL to be paid SR 450,777.35 together with SR 45,060.00which comes up to a total of SR. 495,837.35 only.”
- “I accept that to clear those defects would cost SR. 464,017.00 and when you add solution ‘b’ costed at SR 22,450.00 the total sum comes to SR 486,467.00 only. I would award that sum to Philip and Solana (Respondents) as against SHCL. I would add SR. 6,041.64 that is conceded in the report of PW2”.
- The Notice of Appeal by the Appellant had been filed on the 7th of August 2013, whereas the Notice of Cross-Appeal had been filed on the 13th of January 2014. Leave to file the said Cross Appeal out of time had been granted on the 28th of March 2014 by the President of the Court of Appeal, with a condition that Heads of Arguments had to be filed by the Cross Appellants (Respondents) within 30 days of the 28th of March 2014.The Appellant had objected to the granting of leave. The Cross-Appellants having failed to file the Heads of Arguments as ordered, within the time specified in the Order of the President of the Court of Appeal, namely within 30 days of the 28th of March 2014; had thereafter sought leave to file the Heads of Arguments out of time on the 19th of November 2015 and such leave had been granted by the President of the Court of Appeal by letter dated 25th November 2015.
- This was a case where both the Appellant and the Respondents had filed two separate actions before the Supreme Court on the 14th of April 2011 alleging breach of contract against each other and claiming damages from each other. The Appellant who was the Plaintiff in CS 83 of 2011 had claimed in its plaint, that the Appellant was a building construction company that had entered into a building contract on the 1st of June 2008, with the Respondents for the construction of a ‘storey house’ for them for the sum of SR 1,315,000.00. It had been the Appellant’s position that since the commencement of the project, the Respondents had delayed in their payments due to the Appellant, on every occasion the payment became due; inordinately delayed in supplying materials on time in the required quantities; had unreasonably intervened in the Appellant’s construction works on many occasions and thus failed on their part to facilitate the Appellant’s progressive stages of the construction, which led to delay in the works. The Respondents had also “caused delays by frequent change in structural designs … that prompted the Appellant to go for additional and extra works”. It had been the Appellant’s position that the Respondents had extended the completion date of the contract. Thereafter in March 2010 the Respondents had terminated their contract with the Appellant and instructed it to vacate the construction site forthwith. In pursuance of the termination of the contract the Appellant had caused a valuation of the work done by it and the Quantity Surveyor had assessed the valuation of work done for a sum of SR 1,488,006.54. It had been the Appellant’s position that this sum is due and payable by the Respondents. The Appellant had averred in its plaint “that the report of the Quantity Surveyor has taken into consideration of the total payments received in the sum of SR 489,555.85” from the Respondents. In addition to the sum of SR 1,488,006.54, it had been the Appellant’s position that the Respondents are jointly and severally liable to pay the Appellant a sum of SR 284,734.00 by way of interest and loss on expenses making a total sum of SR 1,772,740.54, with the costs of the suit.
- The Respondents in their defence to plaint CS 83 of 2011 while denying any liability to make any payments to the Appellant have denied allegations made against them pertaining to delays in payments and supplying materials and interventions in the Appellant’s construction works, and had averred that the agreed period was extended because of the delay and incompetence of the Appellant. It had been the Respondents’ position that the agreement had been terminated as a result of the breach of agreement by the Appellant. The Respondents had not denied the Appellant’s allegation that the Respondents had “caused delays on their part by frequent change in structural designs, namely in foundation; roof that prompted the Plaintiff (Appellant) to go for additional and extra works”.
- The Respondents in plaint numbered CS 84 of 2011 have agreed that they entered into a building contract on the 1st of June 2008, with the Appellant for the construction of a house for them for which they were to pay the sum of SR 1,315,000.00 for labour and construction works. The Respondents were to supply the materials for the said works and project. They had averred that the Appellant “would commence the said works and project on the 15th of July 2008 and complete the said works by or prior to the 15th of July 2009.” It had been their position that a sum of SR 489, 55.85 (sic – should be SR 489,555.85, as per the plaint in CS 83 of 2011) was paid to the Appellant towards the agreement and that they had provided the necessary construction materials. It had been the position of the Respondents that in breach of the agreement the Appellant had:
- Failed to complete the said works and project within or prior to the 15th of July 2009,
- Despite several extensions of time, failed to complete the said works and project within the agreed time limits as extended by the Respondents,
- Did not provide and did not undertake good, satisfactory, reasonable and workmanlike works and labour,
- Provided defective construction and works,
- Worked with defective materials, or failed to properly utilize the materials,
- Misplaced or appropriated Respondents materials,
- Provided construction works not in conformity with the agreement, approval plans and drawings,
- Failed to engage or employ a qualified or competent workforce.
It had been the Respondents position that the aforesaid breaches of the agreement by the Appellant renders it liable in law to the Respondents.
- The Respondents had particularized their loss and damages as follows:
- Labour and materials to rectify defective work at SR 569,292.89
- Expenses to establish new company, to provide labour and construction works including registration, licensing, advertisement, recruitment of workers abroad, insurance, medical, architectural drawings, legal costs at SR 166,192.00
- Loss of materials paid for and delivered to the Appellant at SR 42,843.00
- Moral damages at SR 100,000.00
and had prayed for a judgment ordering the Appellant to pay the Respondents, jointly, the sum of SR 878,327.89 with interests and costs.
- The Appellant in its defence to The Respondents’ plaint numbered CS 84 of 2011 had specifically denied what the Respondents’ had averred in their plaint as aspects by which the Appellant had breached the agreement and as referred to at (i) – (viii) at paragraph 5 above. It had been the Appellant’s position that it was the Respondents who contributed to the delay and the “various time extensions were given in view of delays solely on their part”. It had been the Appellant’s position that it is not at all liable to the Respondents, while the amounts claimed by the Respondents as referred to at paragraph 6 above have been “engineered so as to counteract and absolve themselves from” their liability to the Appellant’s claim in CS 83/11 for the sum of SR 1,772,740.54.
- Court had made order that both CS 83 of 2011 and CS 84 of 2011 be consolidated and heard as one case on the application of the Appellant and the Respondents. The learned Trial Judge had in view of the pleadings before him proceeded on the basis that the contract had been terminated and with the consent of both parties narrowed down the issues to be determined at the trial as follows:
- What is the value of the work done by SHCL (Appellant) at the time of termination of the contract?
- What other sums of money is SHCL (Appellant) entitled to from Philip and Solana (Respondents)?
- Were there any defective works at the termination of the contract and if so how much would it cost Philip and Solana (Respondents) to rectify the said defective works, if any, left by SHCL (Appellant)?
- And what other sums of money is Philip and Solana (Respondents) entitled to claim from SCHL (Appellant) on account of their contract?
- The final determination of the trial Court is set out in paragraph 1 above. The Appellant had been awarded a sum of SR. 495,837.35 for value of the works at the time of termination and extra works authorised to be performed, out of a sum of SR 1,488,006.54 that was claimed. The Appellant’s claim of SR 284,734.00 for interest and loss on expenses had been dismissed. The Respondent had been awarded as against the Appellant a total sum of SR 492,508.64 for defective works out of a sum of SR 569,292.89 that was claimed. The rest of the amounts claimed by the Respondents and as set out at sub-paragraphs (ii), (iii), (iv) at paragraph 6 above have been dismissed by the learned Trial Judge. It is to be noted that the awards had been made in respect of the two separate cases that was before the Supreme Court, although consolidated and heard as one trial.
- The Appellant has filed the following grounds of appeal:
- “The learned Chief Justice erred in his decision in disallowing the Appellant’s claim under fluctuation clause while he appreciates the legality of the claim through the uncontroverted terms of the contract.
- The learned Chief Justice failed to understand himself of the effects of the Appellant’s QS report in that he failed to see that the QS had considered the payments received by the Appellant and the net value of the works done is exclusive of payments made by the Respondents.
- The learned Chief Justice failed to justify in detail, as to how the defective works would have cost the Respondent in the total sum of SR 486,467.00 being the award against this Appellant.
- The learned Chief Justice failed to appreciate that the Exhibit D53 that he relies on for the award against this Appellant, is not a genuine and straight forward document but is arbitrary and one sided.
- The learned Chief Justice despite having raised the issue for determination in page 8 of his judgment for the alleged defective works at the time of termination of the contract to match the sum necessary for the rectification of such works, grossly failed to arrive at any rational decision but concluded that the Appellant is liable for such defective works in the sum of SR 464.017.00.
- The learned Chief Justice grossly failed to take note of the Appellant’s every single payment certificate bears in clear terms of the fluctuation clause, thus the Respondents were given due notice of adjustment of price due to fluctuation. It is wrong therefore, to hold that no notice of fluctuation was given while disallowing the claims.
- The learned Chief Justice whilst not relying on D45, a valuation report of Mr. Orairewo, citing the valid reason, wrongly concluded that he would rely on this document based on the evidence of a another expert and through his report D53. Thus, the learned Chief Justice is inconsistent in his views and shown contrary opinion to his own findings”.
The Appellant has prayed to reverse the order and decision of the learned Chief Justice and prayed further that his claims in his plaint be allowed against the Respondents.
- The Respondents have in their Notice of cross-appeal have raised the following grounds of appeal:
- “That the Honourable Judge erred in law in awarding the Appellant the sum of SR 45,060.00 cts in extra works done, in that it was neither proven on the evidence, nor the said works agreed upon between the parties.
- The Honourable Judge erred in law in awarding the Appellant the sum of SR 450,777.35 cts as part of the value of the works done in that;
- It was not proven on the evidence adduced.
- The evidence on valuation of work done was unreliable and arbitrary.
- The Honourable Judge failed to take into account the delay in construction and its impact on the agreement and award.
- The Honourable Judge erred in failing to take into account the Appellant’s defective work in the construction, and the resulting costs.
- The Honourable Judge erred in law in failing to award the Respondent the sum of SR 42,843.00 cts for the materials purchased by the Respondents and lost or misplaced by the Appellant, whilst they were in the Appellant’s custody, on the work site.
- The Honourable Judge erred in law in failing to make an award for moral damages for the Respondents in that he determined that the works were delayed by the Appellant, and further there were defective works, inter alia, and consequently it was fair, proper and just to make a fair order.
- We decided to consolidate the appeal and cross-appeal in the two cases and hear and determine it as one appeal. We also decided to refer to the Cross – Appellants as the Respondents for purposes of convenience.
- The Appellant’s 7 grounds of appeal can be categorised into three grounds, namely the challenge to the amount awarded to the Appellant as value of work done; the disallowing of the Appellant’s claim under the fluctuation clause and the amount awarded to the Respondent for defective works.
- The Respondent’s grounds of appeal are a challenge to the sum of SR 450,777.35 awarded as part of the value of the works done and the sum of SR 45,060.00 awarded for extra works to the Appellant; the failure to award the Respondent SR 42,843.00 for the materials purchased by the Respondents and lost or misplaced by the Appellant, whilst they were in the Appellants custody, on the work site and the failure to make an award for moral damages for the Respondents.
- As regards to the challenge by the Appellant to the amount awarded to it, as value of work done under ground 2 of appeal, it is clear from Exhibit P37 that the learned Trial Judge was not in error by deducting the sum of SR 489,555.85 which had been paid by the Respondents to the Appellant; from the SR 940,333.20, which latter sum he had accepted as representing the value of the work done as at the time of termination of the contract. The value of the work done was based on Exhibit P37, the Valuation Report of Quantity Surveyor; Mr. Nigel Roucou dated 2nd September 2010, which specifies the value of works completed as at SR 940,333.20; “Less Previous payments” of SR 489,555.85. I therefore dismiss the Appellant’s ground 2 of appeal.
- The Respondents in their Skeleton Heads of Arguments in relation to their Cross-Appeal have challenged the credibility of PW2 Nigel Roucou; the Quantity Surveyor who testified by producing his Report Ex P37, on behalf of the Appellant; in the following manner:
- On a perusal of Ex P37 I find that this challenge is incorrect and baseless, as the works done had been valued at SR 940,332.20 but it is the addition of the amounts for extra works (SR 45,060.00), the increase in price due to currency fluctuation for 15 months (SR 970,815.00) and extra preliminaries due to prolongation of construction period (SR 27,395.83), that made up a total sum of SR 1,997,562.39. Thus the statement that the value of the assessed works done exceeds the contract sum is not correct. I note from the judgment of the learned Trial Judge that the amounts set out in Ex P37 for the increase in price due to currency fluctuation and extra preliminaries have not been granted. PW2 Nigel Roucou had while testifying explained in detail the basis of the evaluation carried out by him and set them out in Ex P37 as “site visits and general discussion with the contractor; ascertainment of all the structures sizes; market rates of all the works, at the time of execution of the contract and copy of contract and drawings provided to us.” In fact he had gone on to state that in doing the evaluation he had taken the current rate in 2010, when the evaluation was done and discounted it to reflect the rates in 2008, which was the date of the contract. PW2 Roucou, while testifying in cross examination had specifically stated in his evidence, contrary to what is submitted by the Respondent in his Skeleton Heads of Arguments, that his evaluation for work done at SR 940,000.00 was based on his assessment that 70% of the contract had been completed. He had gone on to state that the rationale for the percentage had been reached after visiting the site and measuring the work done. I have carefully gone through the evidence of PW Roucou and do not find any statement by him to the effect that “various works have also been assessed and their values included”, as stated in the Respondents’ Skeleton Heads of Arguments.
- I note that the Respondent had not objected to the production of Ex P37. The Respondents had also not challenged the expertise of PW2 Nigel Roucou, as a QS. PW2 who stated he had obtained a BSC honours from Salford University, in Greater Manchester, UK in 2002, had been in the trade for 20 years and had about 4 to 5 years’ of experience in the Seychelles as a QS and had testified in more than 5 instances before the Seychelles courts as an expert.
- The Respondent cannot expect the Appellant’s QS to make an assessment of the “defective works and rectification works carried out, and necessary to be carried out by the Respondents” and thus prove the case of the Respondents. That is a matter which had to be proved by the Respondents through their architect or structural engineer as it is they who have pleaded them in their plaint CS 84 of 2011 and the Appellant had denied them in its defence to the said plaint, and put the Respondents to the strict proof of such averments. However PW2 Nigel Roucou in his report at P37 had stated under the heading ‘workmanship’: “The contractor has provided us with correspondences, where works were not to the satisfaction of the client and/or his representative, the value of same has been assessed and adjustments made.” (emphasis added)
- In this context it is to be noted that Respondents have relied on a report, Ex P45, prepared by Arthur Oriarewo, a Quantity Surveyor who worked for the Ministry of Land Use and Housing, but who prepared his report undertaking a private job; to make an assessment of the “defective works and rectification works carried out, and necessary to be carried out by the Respondents”. The following dialogue between Counsel for the Respondent and PW2 Nigel Roucou in cross examination is of interest.
- In private sector project licensed QS are supposed to deal with it. Government QS shouldn’t be dealing with private project, they are not allowed. I don’t know why they have been called to prepare a report, they shouldn’t be doing it.
Q. Who said so, they shouldn’t be doing it?
A. Everybody knows that.
Q. They are not doing it for a fee they are doing it in their job as civil servants.
A. No their job is only for Government project, it is not for private projects. That is for sure.
Q. We will ask Mr Oriarewo when he comes to court. (emphasis added)
Mr. Oriarewo had not turned up in Court to testify on behalf of the Respondents. The learned Trial Judge had rightly told Counsel for the Respondent: “You see you are mixing two things Mr. Derjacques. There is a question of Government oversight in terms of building. That is one aspect. There is the question of government officers, moonlighting doing private work.”(emphasis added)
- As regards grounds 3, 4, 5 and 7 of appeal, namely on the amount SR 492,508.64, awarded to the Respondents, for defective works I find that the learned Trial Judge had relied according to paragraphs 28 and 29 of the judgment, on Exhibit D45 the Report dated 20th April 2011 of Mr. Arthur Oriarewo, a Quantity Surveyor, “that costed what it would cost the owners to rectify the said defects”; and D53 the Report of Jovan Yocette, an Architectural Draughtsman, “on these defects”; and the testimony of Mr. Yocette himself. It is to be noted that the Appellant had objected to the production of Exhibit D45 on the basis that its maker was not before the court and thus he could not cross-examine its maker as to the veracity of its contents. The Appellant’s contention had been to the effect that it is the maker of the Report who could “explain the modalities involved for his quantity surveying, the test that he applied for his own estimates of work and for his results” and again it is Mr. Arthur Orarewo “who has done his modalities, applied principles for his valuation, the test that he carried out to arrive at the valuation for each item.” I am of the view that this was a valid objection. The learned Trial Judge in his Ruling on the objection had stated: “Mr. Rajasundaram learned Counsel for the Plaintiff has objected to the production of this report largely on the ground that he will not be able to cross examine the author. I note that it is true he will not be able to cross examine the author but that is something that goes to the veracity of faith and credit to be given to the report rather than to its admissibility. If it can be established that the author of the report is no longer within this jurisdiction and he cannot easily be obtained this court can allow the admission of the report if it is identified by somebody as a report made by that officer.” (emphasis added). Having laid down the criteria for admission of the report the learned Trial Judge had erroneously admitted D45 despite absence of evidence that Mr. Oriarewo “cannot easily be obtained”.
- Counsel for the Respondents have correctly identified the basis on which Mr. Arthur Orarewo’s report D45 could have been admitted under the Evidence Act, namely, “it has to be compiled by a person officially within his official capacity. The person has to be overseas and it is impracticable for him to be brought back to Seychelles in order tender his evidence.” According to section 14 (1) of the Evidence Act, under which D45 was sought to be admitted a statement contained in a document shall be admissible in any trial as evidence of any fact stated therein of which direct oral evidence would be admissible
- if the document is or forms part of a record, compiled by a person
- acting under a duty, and
- if he is outside the Republic, and
- it is not reasonably practicable to secure his attendance.
- The words “the document is or forms part of a record, compiled by a person acting under a duty” have not been defined in the Evidence Act, but can be construed to mean as a compilation of a record by someone under an official or public duty as opposed to a ministry official doing some ‘private work’ for another outside his official duties. The importance of the element that the ‘statement is or forms part of a record’, in other words, that the statement or record should have some official character – resides in the accompanying probability of the lack of any personal or extraneous interest in the transaction in respect of which the statement was made and that there was the absence of a motive to misrepresent. Section 14 has to be interpreted also bearing in mind article 19(7) of the Constitution which guarantees a right to a fair hearing, which right necessarily incorporates the right to cross-examine witnesses called by the opposing party.
- Having carefully perused the evidence of Aminu Yawale from the Ministry of Land Use and Housing, who came to produce D45 I do not find any evidence on record to the effect that Mr. Orawero compiled D45 in his official capacity, about Mr. Orawero’s expertise as a QS, that he is overseas, and that it was not reasonably practicable to secure his attendance in Seychelles to testify in this case. In fact when asked in examination-in chief by Counsel for the Respondents whether Oriawero prepared the report ‘officially’, AminuYawale had not responded. There had been no other witness from the Ministry of Land Use and Housing who testified in regard to these matters. The fact that D45 is on letter head of the Ministry of Land Use and Housing amounts to nothing in the absence of any evidence that Mr. Oriarewo was acting under an official duty in preparing the report. This was a case of “government officers, moonlighting doing private work” as correctly pointed out by the Learned Trial Judge. Even the 1st Respondent in her evidence had only stated that Mr. Oriarewo’s “contract expired about a few months ago, so he left the country. He is no longer in the country.” There was no evidence that it was impracticable to bring him back to Seychelles to testify in this case. The submission by Counsel for the Respondent from the Bar as we find recorded in the proceedings on these matters, which appear to have been relied upon by the learned Trial Judge, is not evidence. In the Sri Lankan case of Korossa Rubber Co. V Silva, (1917) 20 NLR 65 Wood Renton CJ said in relation to a similar provision of the Evidence Ordinance of Sri Lanka: “It is, of course, true, as a general rule, that where it is sought to put in evidence the statement of an absent witness under section 32 of the Evidence Ordinance, proof must be placed before the court that all reasonable efforts have been made to secure his attendance”. (emphasis added) It was sought to be argued on behalf of the Respondents that the Appellant had failed to cross-examine both AminuYawale and the 1st Respondent about the impractibility to bring back Mr. Oriarewo to Seychelles to testify in this case and that amounted to a tacit acceptance of Mr. Oriarewo’s report D 45. The need to cross-examine on this point would have arisen if the 1st Respondent and especially Yawale had given evidence as to the impractibility to bring back Mr. Oriarewo to Seychelles to testify. The learned Trial Judge had stated: “You are excused.” when Counsel for the Appellant had detailed out his reasons of his inability to cross-examine Yawale on D45, due to the absence of Orirewo, thus accepting the position taken up by Counsel for the Appellant. It was for the Respondents and not for the Appellant to establish the basis for the admission of the report D45 in accordance with the provisions of section 14 of the Evidence Act. This, the Respondents had failed to do. Thus I find that the admission of D45 as an exhibit in this case was gravely flawed.
- It is to be noted that when the 2nd Respondent Solana Boniface testified before the Court, she had stated, that when a dispute arose between the Appellant and the Respondents as to the amount due to the Appellant on the 2nd claim the Appellant submitted for payment in July 2009; the 2nd Respondent had obtained the services of Mrs. Cecile Bastille, a Quantity Surveyor to quantify the work done. Counsel for the Respondents had, rightly so in my view, not sought to mark Mrs. Bastille’s Report by saying “No I am not marking it. I am giving the reason why. I am saying it was prepared by her. She is not coming so I am not marking.” (emphasis added). That should have been the same standard to be applied in relation to the admissibility of D45.
- It is noteworthy to see the learned Trial Judge’s comments at paragraphs 15 & 16 of the judgment as regards D45 when he analysed it in relation to the value of the work done by the Appellant at the time of termination of the contract. He states: “On the other hand the evidence of Philip and Solana (Respondents) on this point is contained in a Report made by a Government quantity Surveyor, Mr. Arthur Oriarewo, Exhibit D45, but which was produced by another witness familiar with his signature, as Mr. Oriarewo, was no longer in Seychelles. This report put the value of the works (that was done by the Appellant) at the time of termination at SR 401,625.12 only”, and “Exhibit D45, in light of the absence of Mr. Oriarewo, could not be subjected to the test of veracity that comes with cross examination. However its figure of completed works becomes suspect when you consider that the owners had already approved certificates of payment twice the value. Payment Certificates one and two exceed that value. That figure in my view cannot be correct”. (emphasis added) In making this statement the learned Trial Judge had accepted that the very test he propounded as ‘to the veracity of faith and credit to be given to D45’ as referred to at paragraph 21 above is not met. At paragraph 18 of the judgment the learned Trial Judge had stated: “I think the figure of SR 940,333.20 may not be too far off the mark for the value of the works as at termination......” and “It is much more likely to be the value of the work at termination stage rather than the figure of SR 401,625.12 only given by Mr.Oriarewo” (based on a report of Mr.Oriarewo relied on by the Respondents at the trial).There are serious inroads into the reliance placed on D45, namely, the admission of D45 despite the absence of the criteria laid down in the law for admissibility of documents in the absence of its maker, the absence of Mr. Oriarewo to explain to court the basis of his valuation and the learned Trial Judge himself being suspicious and thus disregarding D45 in determining the value of the work done by the Appellant, at the time of termination of the contract.
- In making a determination as to whether there were any defective works at the termination of the contract and if so how much would it cost the Respondents to rectify the said defective works left by the Appellant the learned Trial Judge had said at paragraph 29 of the judgment: “I have noted above the problem with Exhibit D45, in that it was not possible to test its veracity, given the absence of its author. Nevertheless in light of the testimony of Jovan Yocette who inspected the works in question and made a report, I am prepared to accept firstly that indeed there were defective works left behind by SHCL (Appellant), on termination of the contract. These are detailed in Exhibit D53. Much as the witness was subjected to tough cross examination his testimony remained cogent and believable.” At first glance I wish to point out that identifying defective works is one thing but determining an amount that would cost the owners to rectify the said defects is another. Also I am in a difficulty to understand how the learned Trial Judge could have based himself on D45 to determine how much it would cost the Respondents to rectify the said defective works left by the Appellant when he was not prepared to rely on D45, in determining the value of the work done by the Appellant at the time of termination of the contract as stated at paragraph 26 above. In this regard he had pronounced that figures in D45 was suspect and in his view incorrect.
- I have noted that D45 had been prepared ( on the 20th of April 2011) almost one year after the termination of the contract and 6 days after the filing of the plaint CS 83 of 2011(14th April 2011) by the Appellant against the Respondents. What is more surprising is that D45 had been prepared 14 days after the preparation of the Plaint CS 84 of 2011 (6th April 2011) by the Respondents. Thus the basis for the claim of SR 569,292.89 for labour and materials to rectify defective works in particularising their loss and damages at paragraph 7 in their Plaint CS 84 of 2011 by the Respondents, comes into question. I also do not know as to what is the QS Report that is listed as number 4 in the List of documents annexed to the Plaint CS 84 of 2011 prepared on the 6th of April 2011. It could not have been D45 that was prepared on the 20th of April.
- I also note two irreconcilable alternatives have been suggested in D45 in relation to defective works, namely “to demolish and rebuild the entire block” at a cost of SR 1,773, 560.00 or “to demolish and restore front approach commencing from lintel to ring beam only” at a cost of SR 22,450.00, which raises serious doubts as to the correctness of D45.
- Even D 53 the Report of Gioven Yocette relied upon by the learned Trial Judge to award SR 492,508.64, to the Respondent for defective works; had been prepared one year after the termination of the contract. It is to be noted that Yocette in his own words is only “an architectural draftsman or you can say an architectural technician. I am not an architect as yet” and it was the first time he had testified in Court. Commenting on a certain aspect of Yocette’s report the learned Trial Judge had said in putting a question to Yocette “So would I then be correct to conclude that on paragraph 7 of your report you have trespassed onto work of a qualified engineer.” The learned Trial Judge commenting on the defects that Yocette had spoken about had belittled him by posing the question to Yocette: “I could also see the same thing but would I be competent professionally to comment upon it. I am a lawyer not an engineer but I could…….say this load is too much but is it within my competence? to which Yocette had truthfully said “No”. Having made such comments to Yocette while he was testifying, I am in a difficulty to understand how the learned Trial Judge came to place any reliance on D 53. I find that Yocette’s evidence has not been linked in any way to Exhibit D45 the Report of Mr. Arthur Oriarewo, the Quantity Surveyor, “that costed what it would cost the owners to rectify the said defects” that was relied on by the learned Trial Judge to make the award of SR 492,508.64, to the Respondents for defective works.
- Mr. Lowlam, the structural engineer who testified on behalf of the Respondents had made reference to several defective construction works from the very commencement of the work by the Appellant; but what puts his evidence into serious doubt is why the Appellant was allowed to continue with the work, despite the defective work and also paid a sum of SR 489,555.85 for such work. According to Mr. Lowlam, the Appellant was required to maintain a site diary in which the architect, planning officers and the structural engineer had to make entries in regard to the quality of the work that was been carried on. The following dialogue between Counsel for the Appellant and Mr. Lowlam is to be noted.
“Q. I can sight many of your endorsements where it reads that works were satisfactory.
A. Yes there were works that were satisfactory.
Q. And you made this certification of satisfactory works after your visit followed by your inspection, physical inspection.
Q. This is the same book that every technician involved including Planning Officers, architects will sign.
A. Correct, that was the same book I was referring to and that initially the contractor didn’t have it.
Q. Which upon your insisting he started maintaining it.
Q. Do you know whether any adverse remark has been made by Planning Authorities?
A. When I came on site I usually flip over the site book and I didn’t notice any at that time. It could have happened later on.
Q. During your checking the book and site visits nothing was brought to your attention.
A. No I didn’t notice.”
- GiovenYocette nor Mr. Lowlam in their evidence had stated that they were in contact with the Mr. Oriarewo in relation to the defective work or the preparation of D45. It was the duty of Mr. Lowlam to satisfy himself as to the acceptable quality of the work, before requiring the Respondents by way of a certificate to make payment for it, and in particular should have kept the Quantity Surveyor continually informed of any defective or improperly executed work which he has observed. This it is clear, he had not done.
- There is another aspect to this case which has been overlooked by the learned Trial Judge, namely the responsibility for detection and certification for defective work and costing for rectification of such defective work is the responsibility of an architect or structural engineer and not of a Quantity Surveyor. In Dhamija and another v Sunningdale Joineries Ltd and two others  EWHC 2396 (TCC); Coulson J of the Queen’s Bench Division of the High Court of London cites the leading authority on the obligations owed by a quantity surveyors, namely Sutcliffe VS Chippendale & Edmondson (1971) 18 BLR 149 which said: “….that responsibility for the detection and, if necessary the exclusion from the certificate of defective work was that of the architect as opposed to the quantity surveyor, whose concern was as to quantity and not quality….” Coulson J also makes reference to paragraph 7.322 of Professional Negligence and Liability (LLP, edited by Mark Simpson QC) where it is stated: “….It is clear, however that whilst the quantity surveyor must check the quantities of work carried out, he is not obliged to investigate whether or not that work is defective. As HHJ Stabb QC made plain in Sutcliffe it is for the architect to ensure that the work that is being assessed by the quantity surveyor for the purposes of valuation has been properly carried out.”Aminu Yawale when asked by the Respondents Counsel as to “Why do we need Quantity Surveyors?” had said “We need surveyors in that department because they are the one that gives the quantity of materials to be executed in such project and gives the amount of money implementing that particular project. They are just construction economists or construction accountants. So they give the projected amount for the particular project.” There is no mention of quality assessment or quantifying defective works.
- As stated in the previous paragraph, in a case of building contract of this nature where damages are claimed for defective construction work which have necessitated rectification work there must be clear evidence on record as regards to the amount spent or that has to be spent for the rectification of such work by an architect or structural engineer or a Quantity Surveyor who would have carried out his work in conjunction with an architect or structural engineer who is in a position to place a value for such rectification work. It is not possible for a Court on its own to do this as it has no expertise in such matters of ‘valuation of construction work or rectification work’. In this case the “Labour and materials to rectify defective work” which has been specifically averred as “SR 569,292.89” at paragraph 7(i) in the Respondents Plaint CS 84 of 2011 had to be necessarily proved through the evidence of an architect or structural engineer or a Quantity Surveyor who would have carried out his work in conjunction with one of them.
- I am therefore of the view that learned Trial Judge was in error to have relied on D45 to determine how much it would cost the Respondents to rectify the said defective works left by the Appellant. There had not been any other evidence placed before the Court by the Respondents in regard to how they incurred the expenses they claimed that they did incur, in relation to labour and materials to correct the defective works. The burden of proof was on the Respondents to establish what it cost them to rectify the defective works and not on the Appellant which denied the Respondents allegation - ‘ei incumbit probatio qui dicit, non qui negat’.
- I therefore allow the Appellant’s appeal on grounds 3, 4, 5, and 7 and reverse and quash the order and decision of the learned Trial Judge awarding the sum of SR 486,467.00 to the Respondents as against the Appellants in CS 84 of 2011. I dismiss grounds 1 and 2 of the Respondents Cross-Appeal and maintain the award of SR 495,837.37 made by the learned Trial Judge to the Appellant in CS 83 of 2011.
- I note the following remarks and findings of the learned Trial Judge as regards grounds 1 and 6 of appeal:
“19. However the difficulty lies with the claim for currency fluctuation.Firstly as a matter of pleading, SHCL was under an obligation to particularise this claim in its plaint so as to put notice to the other party that he was invoking the fluctuation clause of the agreement and specifying from what period or time the fluctuation clause kicked into play.This it has not done.
Section 71(d) of the Seychelles Code of Civil Procedure states,
‘The plaint must contain the following particulars: -
(d) a plain and concise statement of the circumstances constituting the cause of action and where and when it arose and of the material facts which are necessary to sustain the action.’
20. It was incumbent upon SHCL to plead in its plaint, the claim arising out of the fluctuation clause of their agreement, when it arose, and the material facts giving rise to the same for such a claim to succeed.This it did not do and the other side has had no notice of this claim to prepare to refute it or accept as the case may be.In my view section 71 of SCCP is couched in mandatory terms and must be complied with.As SHCL did not do so I would think no cause of action has been set out in the plaint for a claim in relation to the fluctuation clause and it should not be permitted to flourish.
21. Secondly, notwithstanding the foregoing, Philip and Solana wrote to SHCL several letters requesting SHCL to provide them with a schedule of labour rates.This is clear from exhibits D9 and D10 dated 2nd May 2009 and 23 June 2009 respectively to which there was no response by SHCL.Neither did SHCL during its performance of the contract give notice to Philip and Solana that the labour rate set out in their agreement had changed due to a fluctuation in either labour prices or the cost of foreign exchange.Not having invoked the fluctuation clause during the currency of the contract it cannot now be invoked by bundling it together with a claim for the unpaid value of the works as at the termination of contract.
22. Thirdly PW2’s testimony as to currency fluctuations covers the whole period of the contract from month one to month 15.How could that be the case and there was hardly a mention of it during the performance of the contract? The only officer of SHCL during the performance of the contract who testified did not adduce any evidence to the effect that the labour rates expressed in the contract changed and when this occurred.He had to show that the SHCL was paying out a new rate other than the rate expressed in the contract.PW2’s testimony on this point falls short of proving that SHCL incurred a higher labour rate for a particular period of the contract.He, PW2, makes the assumption that that payments by SHCL to its workers was in US dollars.This was a matter for proof by SHCL.It offered none.
23. For all the foregoing reasons I reject the claim arising out of an alleged fluctuation of currency or labour rates.”
- I am in agreement with the learned Trial Judge for disallowing the Appellant’s claim under fluctuation of currency in view of the provisions of Section 71(d) of the Seychelles Code of Civil Procedure, for the Appellant was under an obligation to particularise this claim in its plaint so as to put notice to the other party that he was invoking the fluctuation clause of the agreement and specifying from what period or time the fluctuation clause kicked into play. I have perused the plaint in CS 83 of 2011 carefully and do not find any averment or relief claimed under fluctuation of currency. The fact that fluctuation was referred to in Exhibit P4, the payment certificates Exhibit P7 and P9 and the Quantity Surveyors Report Exhibit P37 and was thus part of the evidence as argued by the Appellants Counsel in the Skeleton Heads of Argument does not suffice. This should necessarily have been part of the pleadings. It was held in the case of Zahid Afwaz Ali VS Patterson Brothers Shipping Co. Ltdand three others, Civil Appeal No ABU 0045 of 2012, by the Fiji Court of Appeal by its judgment of 2nd October 2015, dismissing a claim by the Appellant Zahid Afwaz against one of the Respondents that “the purpose of a statement of claim is to inform the other party of the case against him. This imposes an obligation to inform the defendant in the simplest terms of the case the defendant has to meet and for the court to be able to see what the issues are”. I therefore dismiss grounds 1 and 6 of the Appellant’s appeal.
- As regards Respondents ground 3 of appeal I am in agreement with the learned Trial Judge’s finding that “Philip and Solana have claimed SR 42,843.00 for loss of materials paid for and delivered to the defendant. I have examined the testimony of Solana, the only testimony capable of having supported his claim. There is no proof of the value of the materials allegedly lost by the defendant. This claim fails.” (emphasis added) The Appellant in his Reply to the Cross appeal has correctly stated: “It is for want of satisfactory proof, the claim of SR 42,843.00 has rightly been disallowed.” I therefore dismiss Respondents ground 3 of appeal.
- In view of our finding that the Respondents had failed to establish their claim against the Appellant in its entirety, Respondents ground 4 of appeal for moral damages necessarily fails and we dismiss this ground of appeal.
- In conclusion I dismiss grounds 1 and 2 of the Respondents Cross-Appeal and maintain the award of SR 495,837.35 made to the Appellant by the learned Trial Judge as against the Respondents in CS 83 of 2011. I also allow grounds 3, 4, 5, and 7 of the Appellants appeal and reverse and quash the order and decision of the learned Trial Judge awarding the sum of SR 486,467.00 to the Respondents as against the Appellants in CS 84 of 2011. I dismiss grounds 1, 2 and 6 of the Appellant’s appeal. I dismiss the Respondents Cross-Appeal in its entirety, namely grounds 1, 2, 3 and 4. I do not make any order as to costs.