Power Coach Express (Pvt) Limited v Martin Millers and Engineers

### Preamble
HH 121-2010
HC 7385/06
POWER COACH EXPRESS (PVT) LIMITED
versus
MARTIN MILLERS AND ENGINEERS
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POWER COACH EXPRESS (PVT) LIMITED
versus
MARTIN MILLERS AND ENGINEERS

HIGH COURT OF ZIMBABWE
BERE J
HARARE, 15th, 16th, & 18th September 2009 & 21 July 2010

Civil Trail

B. Chidziva, for the plaintiff
C. Chipere, for the defendant

BERE J: The plaintiff caused summons to be issued out of this court on 29 November 2006 seeking the following order:-

“(1) The supply and delivery of:
(a) 1 x 10 000 litre underground tank;
(b) 1 x 25 000 litre underground tank; and
(c) 2 x 35 000 litre underground tanks or
Alternatively
Payment of damages representing the replacement cost of the tanks in question plus costs of suit”.

THE BACKGROUND

The facts in this case are largely common cause and can be summarised as follows:-

Having been furnished with a quotation dated 31 May 2006 for the manufacture and supply of tanks from the defendant, the plaintiff formerly placed an order with the defendant for the supply of same. The plaintiff initially paid a 60% deposit which was followed by the payment of the remaining balance to complete the full purchase price.

By its letter of 25 September 2006, the defendant advised the plaintiff that it had completed the manufacture of the tanks as per the agreed specifications.

The tanks were to be manufactured to the standard of Standards Association of Zimbabwe size 341 with steps, dipsticks and charts using 6 mm material.

Upon being inspected by Total Zimbabwe, and for whom the plaintiff was purchasing the tanks, it turned out that contrary to the assurances by the defendant, the tanks had not been manufactured per the required design specifications especially where a 4,5 mm plate was used instead of the 6 mm plate.

The plaintiff naturally refused to accept the manufactured tanks as they were a departure from what the parties had agreed upon.

The defendant then sold the tanks to a third party and when a letter threatening criminal action was written to it, the defendant offered to refund the plaintiff the amount it had paid. The plaintiff was not amenable to this suggestion.

At the commencement of the hearing of this matter the plaintiff, through its counsel abandoned its claim for specific performance in preference for a claim for damages as captured in its alternative claim in the summons commencing action.

ISSUES FOR DETERMINATION

At pre-trial conference held by the parties on 12 June 2009, the parties jointly agreed on the following issues as the basis for the referral of this matter for trial;

(1) Whether or not Mr Muzondiwa authorized the alteration of tank specifications, and if so whether or not he was acting as the agent of Total Zimbabwe

(2) Whether or not the plaintiff is bound by any alterations to the specifications that might have been authorized by Total Zimbabwe,

(3) Whether or not the plaintiff is entitled to damages and if so, the quantum thereof.

It is in the light of the issues agreed upon by the parties that the court must closely look at the tendered evidence in order to determine this matter.

THE EVIDENCE

Blazio Nyariri, the plaintiff’s Managing Director gave evidence for the plaintiff and basically his evidence was in all material respect consistent with the summary of the plaintiff’s case as outlined above.

The witness confirmed that upon being given a quotation for the manufacture and supply of the tanks in issue he placed an order with the defendant and paid the requested purchase price in two instalments. The witness referred the court to the quotation of 31 May 2006.

It is noted that although the quotation did not specifically state that the underground storage tanks were to be manufactured using 6 mm mild steel plate thickness both the defendant and the plaintiff were agreed that such material was to be used. This is confirmed by the subsequent correspondence between the parties which consistently made reference to the use of this material as well as the difficulties the defendant encountered in sourcing this material. There was therefore no argument that the parties had envisaged that this particular material was to be used in the manufacture of the tanks.

There was also no argument that on 25 September 2006 the defendant wrote to the plaintiff advising that the ordered tanks had been manufactured per given specifications. See the letter under exh. 1 tendered by the plaintiff.

The plaintiff’s position that there was written assurance by the defendant that the tanks had been manufactured as per specifications was confirmed by the defendant’s representative.

The defendant’s representative sought to justify the non-compliance with the specifications initially given on the basis that during manufacturing they realised they had run out of 6 mm steel plate in their stock. It was the defendant’s evidence that having faced this challenge they approached a Mr Muzondiwa an employee of Total Zimbabwe who authorized them to use the available material in their stock, viz the 5 mm steel plate.

The evidence of Douglas Mhikoyamwari Makonese (the defendant’s sole witness) even if it is true is not without difficulty.

Firstly the status of Mr Muzondiwa from Total Zimbabwe in this whole transaction was put in issue by the plaintiff who specifically told the court that he did not know Mr Muzondiwa and that he was a total stranger to the contractual agreement between the plaintiff and the defendant. The plaintiff was quite categoric that Mr Muzondiwa could not possibly have acted as the plaintiff’s agent in the contract in issue.

In the court’s view, once the status of Muzondiwa was made an issue it was not competent for the defendant’s representative to speculate on that status or to try and explain it by ‘proxy’ as it were. Such an approach was certainly not going to advance the defendant’s case.

It was incumbent upon the defendant to call Mr Muzondiwa to give evidence and allow the plaintiff to test that evidence by way of cross-examination. The role played by Mr Muzondiwa could therefore not have been left to speculation by Mr Makonese.

It is abundantly clear to the court that the contract in issue was between the plaintiff and the defendant and that the alterations allegedly made by the defendant as a result of the instructions of Muzondiwa (if any) were of no force or effect. If anything such conduct only serves to confirm there was a clear breach of contract by the defendant.


In the absence of the evidence of Mr Muzondiwa it is too far fetched to try and infer his agency to the plaintiff particularly in the light of the plaintiff’s clear evidence.

More importantly it is also clear that in the absence of the evidence of Muzondiwa the court cannot on a balance of probability accept that he authorized any alterations to the contract entered into by the parties and that when he did so he was acting as an agent for Total Zimbabwe. This is so because even Total Zimbabwe itself did not confirm this. In fact if there was need to glean for further evidence in support of the plaintiff’s contention that the manufactured tanks were in violation of the agreement one would need to go no further than merely looking at the attitude exhibited by Total Zimbabwe as contained in their report on the tanks (item ‘D’ on exh 2, which is the defendant’s bundle of documents). Item ‘D’ concluded as follows:-

“Recommendations

Based on the above, it is recommended that the tanks should not be accepted as they do not meet the required design specifications especially where a 4,5 mm plate was used instead of 6 mm”.

Even if it is accepted for whatever reason that Mr Muzondiwa authorized the alteration of the specifications originally agreed upon by the contracting parties such alterations cannot possibly bind the plaintiff since the plaintiff has categorically stated that Mr Muzondiwa was never employed as his agent. There was no attempt made by the defendant to controvert this evidence. The court therefore accepts the plaintiff’s evidence.

Having accepted that the defendant breached the contractual arrangement between the parties, the court must therefore consider whether the plaintiff is entitled to damages as claimed or not at all.

DAMAGES

In laying the foundation of its claim for damages the plaintiff has presented to the court a single quotation from D.C. de Sousa (Pvt) Ltd (pages 7-8 of the exh. 1 of the plaintiff’s bundle of documents) and pegged its claim at $72 473-00.

The quotation from D.C. de Sousa was the only one produced by the plaintiff and for doing this the plaintiff was severely critisized by the defendant which felt more quotations should have been produced by the plaintiff to justify its claim. I will deal with this issue later in my judgment.

At this juncture I propose to deal with the issues raised by the defendant against the granting of damages in seriatim.


FAILURE BY THE PLAINTIFF TO PLEAD THE AMOUNT OF CLAIM IN ITS DECLARATION

It was the defendant’s position through its counsel that the plaintiff, not having pleaded in its declaration the specific amount of damages could not be awarded the amount claimed. In other words the defendant felt the plaintiff’s claim was bound to fail on this basis alone.

It is true that it is most desirable that the trial court should as far as is reasonably possible adjudicate on those issues that are raised in the pleadings. This is basically meant to inter alia assist the court in remaining focussed in its effort to deal with the issues before it but I think it is an exaggeration to say that this is a rule of thumb.

The thrust in insisting on adherence to pleadings is that a party must not be prejudiced in the conduct of its case by having to deal with issues which would not have been pleaded.

In the instant case, it is true that the plaintiff did not specifically plead its claim for $72 473-00 in its papers but made a general claim for damages in its declaration. In my view the gap in pleadings was sufficiently canvassed during the plaintiff’s representative’s evidence in chief. Documentary evidence in the form of a quotation from D.C. de Sousa (supra) was produced and the defendant given a chance to examine and cross-examine on that exhibit. The defendant made certain observations on the exhibit and bemoaned the plaintiff’s failure to produce more exhibits to give credence to the amount of claim. More importantly the issue of the plaintiff’s entitlement to damages and quantum thereof was one of the issues, jointly adopted by both parties at pre-trial conference.

I strongly believe that in such a situation there can be no question of the defendant having been prejudiced by the plaintiff’s conduct. The defendant had the opportunity to rebut the plaintiff’s quantified damages by bringing to the fore for consideration its own quotations.

In the court’s view, this is a clear scenario where the court can safely rely on the provisions of order 1 rule 4c(a)\(^1\). For clarity’s sake the rule is couched as follows:-

“4c The court or judge may, in relation to any particular case before it or him, as the case may be-

(a) direct, authorize or condone departure form any provision of these rules ….. where it … is satisfied that the departure is required in the interests of justice;

(b) ……”

What is clear from the above cited rule is that this court has greater latitude in appropriate cases to depart from blind adherence to rules in the interest of justice.


In this regard NEWTON THOMPSON J remarked as follows in the case of Vos v Cronje and Duminy²

That the court is not bound by the strict pleadings when the parties themselves have enlarged the issues is beyond argument (Still v Milner 1937 AD at p 105). In Robinson v Randfontein Estate GM Co. Ltd 1925 AD at p 198 it was said:

“The object of pleadings is to define the issues; and the parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But within these limits the court has wide discretion. It seems to me in this case there was a full enquiry, with the result that the court was placed in possession of all the facts which would have enabled it to make an award of damages if such had been asked for” (my emphasis).

Similar sentiments were echoed in other subsequent decisions. Thus in Collen v Rietfontein Engineering Works³ CENTLIVRES JA remarked;

“This court, therefore, has before it all the materials on which it is able to form an opinion, and this being the position, it would be idle for it not to determine the real issue which emerged during the course of the trial. See Still v Milner (1937, A.D. 101, at p. 105) and the authorities there cited”.

Back home and in the case of Mtuda v Nduzdo⁴ the learned judge GARWE J (as he then was) remarked as follows:-

“These sentiments have been approved in various other decisions since then. Even where no amendments have been applied for, both trial courts and courts of appeal have, in appropriate cases, adjudicated on issues not raised on the pleadings but fully canvassed at the trial”.

In the light of the evidence led in this court on how the amount of claim was computed coupled with the various authorities cited, I am satisfied beyond any shadow of doubt that contrary to the position held by the defendant, the plaintiff claim though not having been specifically pleaded is properly before the court and screams for consideration.

THE ISSUE OF A SINGLE QUOTATION

The plaintiff was critisized for relying on a single quotation as a way of justifying its claim for damages.

I accept it is desirable that where possible one must have more than a single quotation but again there must not be a blind adherence to this requirement. There are occasions when it is not possible to get other quotations.

² 1947(4) SA 873(c) at 879
³ 1948(1) SA 413 (A) at p 433
⁴ 2000 (1) ZLR 710 (H) at p 719 D-E


In the instant case it was he plaintiff’s uncontroverted evidence that at the time D.C. de Souza (Pvt) Ltd was the only company which had the capacity to manufacture the tanks in question to specifications and using the appropriate material. It was precisely because of this that no any other quotations could be produced. The court accepts this position as a good reason to bring a single quotation. The defendant had the opportunity to counter the quotation by bringing other quotations. Defendant did not do so and must not be allowed to cry foul now.

NON JOINDER OF TOTAL ZIMBABWE (PVT) LTD

The argument raised by the defendant was that because Total Zimbabwe had an interest in this matter, its non joinder was fatal to the plaintiff’s case. I do not accept this argument.

The issue of misjoinder or non joinder of parties is sufficiently covered in our rules and it is clear that non joinder is not fatal to the case before the court. For the avoidance of doubt the specific rule provides as follows:

“87 (1) No cause or matter shall be defeated by reason of the misjoinder or non joinder of any party and the court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter”\(^5\)

In any event the defendant was not mandated to speak or litigate on behalf Total Zimbabwe. If Total Zimbabwe felt it had an interest in these proceedings it was up to it to seek joinder. It did not do so and the court is in a position to determine the issues in so far as they affect the two litigants.

THE QUANTUM OF DAMAGES

Having accepted that the plaintiff is justified to claim damages as a result of breach of contract and that the claim itself is properly before me I must now focus on the exact amount which the plaintiff is entitled to.

I have already indicated that there was no serious challenge raised by the defendant on the quotation by D.C. de Sousa (Pvt) Ltd as representing the damages suffered by the plaintiff as a result of the defendant’s conduct. I accept the quotation as it is.

The plaintiff sought to recover US$72 430 based on the quotation from D.C. de Sousa (Pvt) Ltd. A close analysis of that quotation shows that the total quotation adds to US 70 980-30 and not the figure claimed by the plaintiff.


It will be noted that the summons specifically refer to the defendant’s failure to supply 4 tanks whose capacity and quantities are as follows;

(a) 1 x 10 000 litre underground tank
(b) 1 x 25 000 litre underground tank, and
(c) 2 x 35 000 litre underground tanks.

The quotation from D.C. de Sousa (Pvt) Limited is silent on the cost of a 10 000m3 tank but makes reference to a 15 000m3 tank which is irrelevant to the proceedings before me. There has been no attempt by the plaintiff to quantify the cost of a 10 000m3 tank and it is not the function of this court to do so.

From the correct global figure of US 70 980-30 will be substracted the figure of US$12 337-20 giving us a total figure of US$58 643-10 representing the actual amount of damages established by the plaintiff and to this extent the plaintiff succeeds in its claim.

Accordingly it is ordered as follows:-

1. That judgment be and is hereby granted in favour of the plaintiff in the sum of US$58 643-10 with interest thereon from 28 February 2009 to the date of full payment

2. That the defendant should pay costs of suit.

*Kentor and Immerman, plaintiff’s legal practitioners*
*Mtombeni Mkwesha, Muzawazi & Associates, defendant’s legal practitioners*
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