CIV/T/290/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of

KUTLOANO
BUILDING CONSTRUCTION CO. Plaintiff

. and

1.
'MASEELE MATSOSO 1st Defendant

2.
LESOTHO BUILDING FINANCE

CORPORATION
2nd Defendant

3. E.K.
MOTOPI & ASSOCIATES 3rd Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on 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 ten
thousand 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 avers :

"on or about the 20th July, 1981, the Plaintiff entered into a
written agreement, a copy of which is attached, marked annexure
"A"
for the erection and completion of a residential house for the first
Defendant as the proprietor and third Defendant
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 concluded the
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:

"CONTRACT

THIS AGREEMENT is made the.....20th....................

day of.....July,.1931..............

between.....M.Matsoso..............

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of P.O. Box 1216, Maseru, 100

as the Proprietor, Kuloano Construction

and Kutloano Construction,

of P.O..Box 919,Maseru,.100.....

as the Contractor,

The Architect is .E.K.Motopi and Associates....

of Architects, Box 706

MASERU 100,Tel.24296

The works
comprise Erection and completion of house

as shown in the drawings and/

or describe in the specification.

The
Contract Sum is Eighteen thousand Maloti.........

....................................(M18,000.00

This
agreement witnesses that the Proprietor will pay the Contractor the
contract sum or such other sum as shall become payable
under the
conditions of this agreement and that for the, consideration thereof
the Contractor will carry out and complete the Works,
and 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 Architect.

The
declaration further disclosed that Second Defendant agreed in writing
to finance the erection and completion of the residential
house on
behalf of the first defendant in the sum of Eighteen Thousand Maloti
(M18,000).

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The
alleged written agreement with 2nd Defendant was, however, not
attached to the declaration on the ground that all copies thereof

were kept by the second Defendant.

The
Declaration disclosed that following the agreement, Plaintiff
immediately moved material plant, tools and equipment necessary
to
carry out the whole of the contract in an expeditious manner.
However, on or about 30th July, 1981, one Lehlohonolo Khoboko,
an
employee of the 2nd Defendant and as such acting within the scope and
in the course of his employment, without any reasonable
cause and in
breach of contract told the Plaintiff to stop the building
operations. The Plaintiff had, however, comple­ted
the
foundations and dug out the septic tank. Consequen­tly, by the
aforesaid breach of contract, the Plaintiff suf­fered
damages in
the 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 Plaintiff.
The third
Defendant also refuses or neglects to assess and certify the value of
the amount of work done despite numerous requests
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 against them
plus costs
on the ground that his declaration to the summons disclosed no cause
of action against them. 2nd Defendant added that
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 ....

4

the
provisions of Rule 29(1 )(b) and to that extent was bad in law.
Counsels for the excipients argued that the exception was not
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 clearly
stated that the
declaration disclosed no cuase of action against him in as much as he
was not a party to the written agreement
which 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 have
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 obvious
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 which Plaintiff
relies for
his action against the 3rd Defendant has not been signed by the 3rd
Defendant or any of the parties for that matter.
I do not see how it
can seriously be contended that 3rd Defendant is

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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 Annexure
"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 incor­porate

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 prayed with
costs.

B.K.
MOLAI.

JUDGE.

9th
November, 1984.

For
Plaintiff : Mr. Pheko

For
Defendants: Mr. Harley.