IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C of A (CIV) NO.12/2011
In the matter between:
THE OBLATES OF MARY IMMACULATE Appellant
PAUL CROCE ASSOCIATES Respondent
CORAM: MELUNSKY, JA
HEARD: 10 OCTOBER 2011
DELIVERED: 21 OCTOBER 2011
Contract – whether plaintiff proved defendant authorized contract appointing it to provide professional services.
1] This is an appeal from a judgment of Mofolo AJ, sitting in the High Court, who upheld a claim brought by the respondent, Paul Croce Associates, a firm of architects and planners practising in Maseru, against the appellant, the Oblates of Mary Immaculate, described in the summons and the particulars of claim as “a Holy Order of the Roman Catholic Church.” The claim upheld by the trial judge, which was for professional services in respect of a project for students’ accommodation at the National University of Lesotho at Roma, was for an amount of M404 447-69.
 In paragraph 4 of its particulars of claim the respondent alleged that it had rendered the professional services to which the claim related to the appellant at the latter’s special instance and request and that the appellant had appointed it as architects for the project by means of what was described as an official letter of appointment dated 22 November 1995. This letter, which was annexed to the respondent’s reply to the appellant’s request for further particulars, had been sent by telefacsimile transmission to the respondent. It was on the letterhead of the National University of Lesotho and stated that it had been sent from Pius XII College House. The main part of the letter read as follows:
Pius XII College House hereby confirm the appointment of Paul Croce Associates for the Project Students Accommodation. We appoint them to design and supervise the students’ residences”.
At the foot of the letter appeared the following:
“SIGNATURE (SENDER) T.L. Manyeli.”
 In its plea the appellant denied paragraph 4 of the respondent’s particulars of claim and alleged that it had never requested the respondent to render the architectural services in question. It went on to deny appointing the respondent in 1995 for students’ accommodation and averred that the letter on which the respondent relied was not from it and that the letterhead was that of the National University of Lesotho and not its letterhead. It also denied being liable for payment of the amount claimed.
 At the trial the attorney acting for the appellant stated that the only issue in the case was what he called ‘authority’, i.e, whether the sender of the letter of appointment, the Reverend Father T.L. Manyeli (who according to the Court record had died before the trial) had been authorised by the appellant to make the appointment.
 The only witness who testified at the trial was Mr. Nts’iu Theodore Ntlatlapa, who practises under the name Paul Croce Associates.
 He testified that while his firm was working at the National University campus the Rev. Manyeli called him to Pius XII College House, the residence on the campus, and gave him a brief to prepare a project proposal for students’ hostels on the land owned by Pius XII on the campus. Two to three weeks later his firm submitted the design concept to the Reverend Manyeli, who told him a week later that ‘they’ liked the concept. Mr Ntlatlapa then stated that he asked for a written letter of appointment. Two days later, he said, the Reverend Manyeli wrote the letter of 22 November 1995 which has been quoted above. The same day, he continued, he accepted the appointment in writing. Thereafter his firm put together a team of consultants and gave their names to Pius XII. He later handed in, with the consent of the appellant’s attorney, a summary of the project activities.
 He said that apart from the Reverend Manyeli he dealt with other Oblates, namely the Reverend Motanyane, who, he said, was working in Rome and was trying to facilitate the funding of the project and later came to join the Reverend Manyeli at Pius XII, the Reverend NT Makhalemele, Archbishop B Mohlalisi, and the Reverend Letsepe, who was the bursar for the Oblates.
 He testified further that after accepting the mandate his firm prepared a detailed project concept because the project was, as he put it, supposed to be submitted for funding in Rome. Three copies were sent to the Oblates’ bursar in Rome, the Reverend Coeter.
 He concluded his evidence in chief by saying that the Oblates accepted all the work his firm did.
In cross-examination by the appellant’s attorney it was put to him than he had never told the court why the respondent was suing the appellant. His reply was: “in my understanding Pius XII are the Oblates, they are one and the same thing.”
In re-examination the respondent’s counsel referred to the question he had been asked on to why the respondent was suing the appellant and asked whether there was any reference in the correspondence to the appellant. He replied that there was reference in the correspondence to Pius XII and the appellant.
In his judgment the learned trial judge said that Mr. Ntlatlapa had testified that his firm had a mandate to proceed as it did and that this evidence was not controverted by the appellant. The judge said that it seemed to him to be “common cause that the late Reverend Father Manyeli acted on behalf of the [appellant] and even if it is not common cause the [appellant] accepts that the Reverend Father Manyeli represented the appellant, the reason [the appellant] has not taken trouble to deny the obvious.”
It was not common cause that the Reverend Father Manyeli acted on behalf of the appellant and the judge erred in so holding. The question arising for decision is whether Mr. Ntlatlapa’s statement that in his understanding “Pius XII are the Oblates, they are one and the same thing” has been shown on the evidence to be correct.
Advocate Mpaka, who appeared for the respondent, contended that it was. He relied on the evidence summarized above that the respondent dealt with other Oblates apart from the Reverend Father Manyeli, that he interacted with ‘the rest of the Oblates’ and that the Oblates accepted the work.
He also relied on the summary of project activities handed in by Mr. Ntlatlapa.
I do not think that the evidence led established such a link between Pius XII and the appellant as to justify Mr Ntlatlapa’s understanding that they were “one and the same thing”.
In the summary handed in by Mr. Ntlatlapa is a reference to a visit paid by Reverend Rufus, who is described as the new bursar of the Oblates, when the project was discussed and “Rev. Rufus ‘confirm[ed] that they [presumably the Oblates] are still interested to fund the project.”
With reference to the Reverend Father Manyeli it is said in the summary that Mr Ntlatlapa interacted with him at the beginning of the project and during the preparation of all project documents “including negotiation with possible financiers”. The statement in the summary that the appellant’s bursar, Reverend Rufus, indicated during his visit to Lesotho that the appellant was still interested to fund the project creates the impression that the involvement of the respondent may have been as a possible donor or financier. Most of the activities listed in the summary relate to documents (a budget estimate, four copies of the project proposal, three of which were sent to Rev Coeter “to request funding for the project”), accounts, letters etc) sent to “Pius XII” or to “Pius XII (Reverend Father T.L Manyeli)”. There is one reference to a letter (on revised cost estimates) sent to “Pius XII (Father A Motanyane)”.
There is also reference in the summary to an instruction given by Pius XII (on 27 January 1998) to the respondent to prepare a project proposal for a Social and Pastoral Centre, which proposal was submitted “to Rome and other donors for funding.”
That there appears to be some link between Pius XII College House and the appellant is clear. What it is was not established. If Pius XII and the appellant “are one and the same thing” it is not clear why it should be necessary to approach the appellant for funding or why the appellant’s bursar, Reverend Rufus, would say that the appellant was “still interested to fund the project.”
In all the circumstances I am satisfied that the respondent did not establish that Reverend Father T L Manyeli was authorized by the appellant to appoint the respondent as architects for the students’ accommodation project. It follows that the order made by the trial court should have been one of absolution from the instance.
The following order is made:
1. The appeal succeeds with costs.
2. The order made by the court a quo is set aside and replaced with the following:
“Absolution from the instance with costs.”
JUSTICE OF APPEAL
I agree: _________________________
JUSTICE OF APPEAL
I agree: _________________________
JUSTICE OF APPEAL
For Appellants: Adv. T. Matooane
For Respondent: Adv. T. Mpaka
Air Jordan XVII 17
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