C.of A (CIV) No .16 of 1984
IN THE LESOTHO COURT OF APPEAL
In the matter of:
KUTLOANO BUILDING CONSTRUCTION Appellant
and
MASEELE MATSOSO First Respondent
LESOTHO BUILDING FINANCE CORPORATION Second Respondent
E.K. MOTOPI AND ASSOCIATES Third Respondent
HELD AT MASERU
Coram:
SCHUTZ P.
MAHOMED J.A.
AARON J.A.
JUDGMENT
Schutz P.
This is an appeal against the judgment of Molai J, upholding two separate exceptions brought by the second and third respondents against the appellant's declaration. The appellant (to whom I shall refer as "the plaintiff") had sued the three respondents (to whom I shall refer as "defendants") jointly and severally for damages of M10 000 for breach of a building contract.
The plaintiff's declaration places reliance on a written building contract, concluded on 20th July, 1981, and "for the erection
and completion of a residential house for the first defendant as the proprietor and third defendant as the architects'. Although unsigned, a copy of the written contract is annexed. The relevant parts of it read, "This agreement is made ..........between M. Matsoso ..... . .. as the proprietor,
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and Kutloano Construction ........... as the contractor. The architect is E.K. Motopi and Associates .......... The works comprise erection and completion of house as shown in ....... The contract sum is ...... M18000.......The proprietor will pay the contractor the contract sum ...... and ........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 ..... this agreement. Signed by the said proprietor .......... Signed by the said contractor........"
This contract represents in fairly simple form the well known building contract, the basic nature of which appears to have been
misunderstood by the plaintiff's legal representatives. Under this form of contract the contractor performs the works and the owner, and no-one else, pays him therefor. The architect, who is for most purposes the owner's agent, has planning and supervisory functions,
and usually certifies part and final payments depending upon progress. Because he has powers it is customary to name him in the
contract: But he is not a party to this contract, and in no sense is he liable to the contractor for the price.
The next paragraph of the declaration (para 6) proceeds to say that, "The second defendant agreed in writing, all copies being kept by it, to finance the said erection and completion of a residential house on behalf of the first defendant in the sum of ............ M18000." (No copy of any agreement was annexed presumably because none was available to the plaintiff).
The next averment is to the effect that the plaintiff then proceeded to implement the contract, and the one following is that, "On
...... 30th July, 1981 the second defendant ....... (and no-one else - my interpolation) ....... without any reasonable
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cause told the plaintiff to stop the building operation,' at a stage when the plaintiff had already done certain specified work. The declaration then refers to "the said breach of contract" (by whom? - my interpolation) and a resulting suffering of damages in the sum of M10 000. The first and second defendants are then said to have "refused to pay the plaintiff for the work done and pay compensation for the expenses incurred as a result of plaintiff's fulfilment of his part of the contract", notwithstanding demand. Against the third defendant it is averred that he has neglected or refused to assess and certify the value of the amount of work done, despite demand.
Against this declaration the second defendant raised an exception in the terms that "....... it does not disclose a cause of action against the second defendant as the second defendant was not a party to the agreement attached to the declaration marked 'A'." The operative wording of the third defendant's exception is that the declaration "failed to disclose any cause of action against the third defendant'. This is the extent of the two defendants' compliance with Rule 29(1)(b) of the High Court Rules, which requires that "the grounds upon which the exception is founded must be clearly and concisely stated". In respect of both exceptions, in the Court below, the plaintiff raised as a point in limine non-compliance with this sub-rule. The learned judge declined to hear the point in limine and allowed argument on the exceptions to proceed, and dealt with the point in limine in the main judgment. I think that this may have been unfortunate. Before the exceptions were to proceed or not proceed, it was desirable that what 1 will call the "exceptions to the exceptions" be decided to determine whether there were good notices of exception.
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Before dealing with the issues raised by the exceptions and the notices of exception 1 feel bound to say that the declaration is manifestly deficient as an expression of a cause of action against at least the second and third defendants. The reasons for saying this in the case of the third defendant (the architect) I have already briefly stated. There is nothing in the contract that makes him liable for performance of the bulling contract, either specifically or by means of a damages surrogate. Nothing further is alleged in the declaration. Even the complaint directed at non-certification does not help. Even if he did act wrongly, it does not make him liable for performance of the contract, although it might make him liable for something on some other basis. But such a basis is not alleged. A statement of "neglect or refusal' despite demand is not enough. Nor is it shown that any such possible neglect is the cause of the damage allegedly suffered. In the case of the second defendant, he is not a party to the building contract and no averment is made which bases a contention that the plaintiff can claim performance of the building contract directly from him. Nor is there a sufficient averment that he assumed liability outside it. All that is said against him in paragraph 6 is that he agreed (with whom?) to finance the construction. That merely makes him the financier. And even although there is an allegation that he without reasonable cause stopped the work, to allege a breach of contract by a person who has not been alleged to have obligations under a contract is meaningless, even though such conduct can in certain circumstances ground a
different sort of claim.
In my opinion the substance is as simple as that, and I wish that I had to say no more. But unfortunately the matter does not end there. This defective declaration was followed by two inadequate notices of exception.
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Before dealing with the two exceptions separately, I shall deal with the authorities now governing notices of exceptions founded on there being no cause of action. I have already quoted the terms of Rule 29(1)(b). The main purposes of the sub-rule are presumably to prevent the respondent being taken unawares, and to allow him to amend if he can. Such inspirations of the sub-rule are no doubt excellent. But it in its turn can become an instrument of oppression of a party faced by a bad pleading, if it is applied without regard to the circumstances.
A pleading may be so bad that it may be difficult to say anything meaningful other than that it discloses no causes of action. Take as an example a declaration which reads: "1. Smith is the plaintiff. 2. Jones is the defendant. Wherefore the plaintiff claims
payment of R100,000 from Jones (fullstop)". On the other hand an exception may mask, if not made explicit, a point of great complexity or obscurity. To take an example of the latter, an exception may be based on some esoteric provision lurking in the statute book and known to few. How little nay often be needed in order to comply with the Rule is illustrated by Buthelezi v.Minister of Bantu Admnistration and another 1961(3) 255(D) in which case Warner AJ said (at 258 R):
"The exception is that the declaration is bad in law on the ground that the Court has no jurisdiction.... Mr. Muller's argument
was that the excipients should have said why the Court has no jurisdiction, but that, to my mind, is a matter of law which would
not be properly included in a pleading or an exception".
But it is nonetheless clear that the ground has to be stated, even if only briefly in some cases. Thus in Cook and others v.Muller 1973(2) SA 240 (B) Milne J stated (at 244 A-B):
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"It is clear that in this Division, ...... an excipient was required to state the particulars upon which his exception was based, and it was not sufficient merely to state that the exception was upon the ground that the plea did not disclose a defence."
See further Molteno Bros v. SAR 1936 AD 408 at 417, and Jones and Buckle, The Civil Practice of the Magistrate's Courts in S.A. 7th ed. Vol.2p.161.
Judged by these standards, the exception of the second defendant is good to the extent that his exception is limited to the contention that the building contract does not oblige him. But the question then arises, what is left? For one thing, paragraph 6 is left. In Amalgamated Footwear and Leather Industries v.Jordan and Co.Ltd 1948 (2) SA 891 (C) Herbstein J said (at 893):
"It seems to me that insofar as there can be an onus on either party on a pure question of law, it rests not upon the plaintiff but upon the excipient. It is the excipient who is alleging that the summon does not disclose a cause of action and he must establish that in all its possible meanings no cause of action is disclosed. (cf. Kennedy v Steenkamp (1936 CPD 113 at 115)". ("My
underlining)
I have already expressed my opinion as to the substantive inadequacy of paragraph 6. But it is there, alleged against the second defendant, and however inadequate it is, it is those very inadequacies that required highlighting as an additional ground in the notice of exception, coupled perhaps with an exception based on vagueness and embarassment. I do not think that the striking out of paragraph 5 on its own brings down the whole declaration. Accordingly I am of the view that the second defendant's notice of exception was insufficient for the purpose of sustaining an exception that the declaration showed no cause of action.
I turn to that of the third defendant. His notice is not a
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compliance with the sub-rule. Contrasting it with the slightly but insignificantly expanded notice of the second defendant illustrates
the point. For the reasons I have already stated, I think that it is quite clear that the declaration, insofar as it affects the third defendant, is bad, So that we are confronted with the slightly comical (if not altogether unusual) situation of a bad declaration
being sought to be assailed by a bad notice of exception. What are we to do about it? I do not see that in this case the obviousness of at least one of the points argued can save the excipient's notice. What all might not have been concealed within it, such as an attack on jurisdiction? In this case I am of the view that the Court below should not have proceeded to hear the exception on the notice that had been filed.
I am afraid that my decision may smack of the triumph of formalism over substance. But forms are often important and the requirements of the sub-rule are such. Bad as was the declaration, so also were the notices of exception for their intended purpose. The plaintiff had taken his life in his hands by filing the declaration. But so in turn did the two defendants when they filed their exceptions, and, as at the battle of Fontenoy, they had to fact the firing first.
The appeal is upheld in respect of both respondents, with costs. The order of Molai J is set aside and the following is substituted
therefor:
The exception of the second defendant is dismissed. The notice of exception of the third defendant is set aside as irregular. Each of those two defendants is to pay the plaintiff the costs caused by his taking exception.
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Signed : W.P. Schutz
W.P. STCHUZ
President
I agree Signed: I, Mahomed
I. MAHOMED
Judge of Appeal
I agree Signed: S. Aaron
S. AARON
Delivered this 29th day of January 1985 at MASERU.
For the appellant : L. Pheko
For the second respondent : Erusmus
For the third respondent : A. Backley
