IN THE HIGH COURT OF LESOTHO In the matter
KUTLOANO BUILDING CONSTRUCTION CO. Plaintiff and
'MASEELE MATSOSO 1st Defendant
LESOTHO BUILDING FINANCE
CORPORATION 2nd Defendant
3. E.K. MOTOPI & ASSOCIATES 3rd Defendant
Delivered by the Hon. Mr. Justice B.K. Molaion
the 9th day of November, 1984.
This is an exception to a declaration in which Plaintiff
claims against the Defendants jointly and severally (a) payment of
maloti (M10,000) being damages for breach of contract
(b) Interest at the rate of 11% per annum (c) costs of suit
and (d) further or alternative relief.
Ad para 5 of his declaration to the summons, Plaintiff
"on or about the 20th July, 1981, the Plaintiff
entered into a written agreement, a copy of which is attached, marked
"A" for the erection and completion of a
residential house for the first Defendant as the proprietor and third
as the architects".
It is to be observed that on the face of it para. 5 of
the declaration does not make it clear whether Plaintiff had
agreement with either the first or the third or both
the first and the third respondents. However, if the paragraph is
read in conjuction
with Annexure "A", there can be no doubt
that the agreement (if any at all) was concluded between the
Plaintiff and the
first Defendant for the agreement reads:
THIS AGREEMENT is made the 20th
day of July,.1931
of P.O. Box 1216, Maseru, 100
as the Proprietor, Kuloano Construction
of P.O..Box 919,Maseru,.100
as the Contractor,
Architect is E.K.Motopi and Associates....
Architects, Box 706
works comprise Erection and completion of house as shown in the
drawings and/or describe in the specification.
The Contract Sum is Eighteen thousand
This agreement witnesses that the Proprietor will pay
the Contractor the contract sum or such other sum as shall become
the conditions of this agreement and that for the,
consideration thereof the Contractor will carry out and complete the
both the Proprietor and the Contractor hereby agree to be
bound by and observe the conditions of this agreement.
Signed by the said Proprietor
in the presence of
Signed by the said Contractor
in the presence of "
As far as one can gather from this document, Plaintiff
and 1st Defendant merely agreed that the third Defendant would be the
The declaration further disclosed that Second Defendant
agreed in writing to finance the erection and completion of the
house on behalf of the first defendant in the sum of
Eighteen Thousand Maloti (M18,000).
3/ The alleged written
The alleged written agreement with 2nd Defendant was,
however, not attached to the declaration on the ground that all
were kept by the second Defendant.
The Declaration disclosed that following the agreement,
Plaintiff immediately moved material plant, tools and equipment
to carry out the whole of the contract in an expeditious
manner. However, on or about 30th July, 1981, one Lehlohonolo
employee of the 2nd Defendant and as such acting within
the scope and in the course of his employment, without any reasonable
and in breach of contract told the Plaintiff to stop the
building operations. The Plaintiff had, however, completed the
and dug out the septic tank. Consequently, by the
aforesaid breach of contract, the Plaintiff suffered damages in
sum of ten thousand maloti (10,000) being expenses incurred as a
result of Plaintiff's performance of his part of the contract.
Despite numerous demands, 1st and/or 2nd Defendants
refuse or neglect to pay the ten thousand maloti (M10,000) to the
The third Defendant also refuses or neglects to assess
and certify the value of the amount of work done despite numerous
and demands by the Plaintiff. Wherefore, Plaintiff prayed
for relief as aforesaid.
The 2nd and the 3rd Defendants filed notices of
exception in which they prayed for the dismissal of Plaintiff's claim
plus costs on the ground that his declaration to the
summons disclosed no cause of action against them. 2nd Defendant
he was not a party to the agreement which was attached to
the declaration and marked annexure "A".
When the matter came before me for hearing, counsel for
the Plaintiff raised a point in limine and contended that the
exception which purported to be taken in terms of Rule 29(1) of the
High Court Rules did not clearly and concisely
state the grounds upon
which it was 4/ the provisions of ....
the provisions of Rule 29(1 )(b) and to that extent was
bad in law. Counsels for the excipients argued that the exception was
based on vagueness or embarrssment. It was on the ground that
the declaration disclosed no cause of action and in that event there
was nothing more that could be said.
If I follow counsel for the Plaintiff's contention
properly, his argument is that even where the exception is based on
no cause of
action, the excipient must state in what manner the
declaration is said to disclose no cause of action.
Assuming the correctness of the argument, it seems to me
that the exception of 2nd Defendant cannot be faulted for he has
stated that the declaration disclosed no cuase of action
against him in as much as he was not a party to the written agreement
was attached and marked annexure "A".
As has been pointed out earlier, annexure "A"
purports to be a contract between the Plaintiff and 1st Defendant who
agreed that 3rd Defendant will be the architect. There is no
indication that 3rd Defendant was a party to that agreement. On the
contrary, the agreement was between the Plaintiff and the 1st
Defendant. On the averments contained in the declaration, it is
that the basis on which 3rd Defendant says the declaration
discloses no cause of action against him is that he is not a party to
the agreement concluded between Plaintiff
and 1st Defendant. Indeed, that is what the court was
told in argument advanced on behalf of the 3rd Defendant.
I am unable to uphold the point raised in limine by
counsel for the Plaintiff and it is accordingly dismissed.
Coming now to the merits of the exception, it is
significant to note that on the face of it, Annexure "A" on
relies for his action against the 3rd Defendant has
not been signed by the 3rd Defendant or any of the parties for that
I do not see how it can seriously be contended that 3rd
5/ contractually bound
contractually bound by the terms of a written agreement
which he has not signed or of which he is not a party.
As regards the 2nd Defendant, it is clear from the
averments in the declaration of the summons that he is not a party to
"A". His liability is based on the allegation that
he has agreed in writing to finance the building of 1st Defendant's
house. The alleged written agreement is a material document on which
Plaintiff clearly relies for the success of his case. He has,
however, not annexed that document to his declaration. At p. 228 of
the Civil Practice of the Superior Courts in South Africa
(1954 Ed.) by Herbstein and Van Winsen, the Learned authors have
this to say on the subject;
"If the pleader relies on a document or portion
thereof and it is material, his failure to annex the document or
the material terms will lay his declaration open to
exception." I agree.
Consequently, it is apparent that I take the view that
the exceptions were well taken. They are accordingly allowed as
JUDGE. 9th November, 1984.
For Plaintiff : Mr. Pheko For Defendants: Mr.
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