IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CIV/T/454/2004
In the matter between:
PAUL CROCE ASSOCIATES PLAINTIFF
AND
THE OBLATES OF MARY IMMACULATE DEFENDANT
JUDGEMENT
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 3rdJanuary, 2011
[1] Plaintiff Paul Croce Associates issued summons against the Defendant the Oblates of Mary Immaculate a Holy Order of the Roman Catholic Church whose address is shown as P.O. Box 795, Maseru, refer to Rev. Fr. T. Letsepe OMI claiming:
PARTICULARS OF CLAIM
1. Plaintiff is PAUL CROCE ASSOCIATES a Firm carrying on business as Architects, Planners with address 49 Machache Road, Maseru West.
2. Defendant is THE OBLATES OF MARY IMMACULATE a Holy Order of the Roman Catholic Church whose full and further particulars are unknown to Plaintiff with address P.O. Box 795, Maseru, refer to Rev. Fr. T. Letsepe OMI.
3. …
4. Plaintiff’s claim against Defendant is for payment of the sum of M404,447.69 being the amount now due, owing and payable by Defendant to Plaintiff in respect of professional services rendered to Defendant at Defendant’s special instance and request during/or about November, 1995 in terms an official letter of appointment as architects for the project of Pius XII College House (Students accommodation) at Roma, dated the 22nd November 1995, a copy whereof is annexed hereto marked Annexure “A”, which amount despite demand Defendant fails/refuses/neglects to pay.
WHEREFORE Plaintiff claims:
1. Payment of the sum of M404,447.69;
2. Interest thereon at the rate of 18.5% per annum from date of issue of summons to date of payment;
3. Costs of suit;
4. Further and/or alternative relief.
[2] When the trial commenced on 8 September, 2010 Mr. Mpaka submitted the only question to be decided by the court was whether since originally there was no mandate question was whether subsequently there was authorization to proceed with the project prospective witnesses even if called their testimony not decisive and superfluous for the question to be decided was whether there was mandate. Mr. Mpaka went on to say even work done was not in dispute what was in dispute being whether work done was authorized. Accordingly Pw1 Ntšiu Theodore Ntlatlapa was called and sworn has testified he is a qualified architect and did prepare a written statement which he handed in and was marked Exh. “A”. He has testified he was approached by Pius XII College to design and consult on the construction of residential facilities at the NATIONAL UNIVERSITY OF LESOTHO. It is correct to say that Defendant mandated him to proceed as he did say in 1994-95 for they worked at the campus and Rev. Fr. Manyeli called him to Pius College and there gave him a brief about a female hostel owned by Pius XII College and later in November 1995 they submitted the design to Rev. Fr. Manyeli who approved the contract and we asked for a written letter of appointment and two days after the request Rev. Fr. Manyeli on 22/11/2005 appointed the Plaintiff per Annexure “A” termed Exh “B”.
[3] As to what happened thereafter the witness has testified after receiving letter of appointment Plaintiff accepted the appointment the same day. One of the conditions was that a team of professionals and consultants prepare estimates and it would seem while everything is in place only mandate is in dispute. The witness has also handed in summary of project activities marked Exh “C”. The witness has further testified apart from Rev. Fr. Manyeli there were other Oblates namely Rev. Fr. Motanyane, Rev. Fr. Makhalemele and Archbishop Mohlalisi and necessary steps were taken towards the execution of the mandate. A project briefing was submitted in 1996 and sent to Rome the Oblates having accepted all work done.
[4] Cross-examined by Mr. Matooane, the witness has testified Exh “B” is on University letterhead and has testified that the Oblates have own letterhead he has no knowledge of why Exh. “B” is on University letterhead. Asked why he is suing the Oblates the witness says it is as it should be.
[5] Re-examined the witness has testified the letter was sent to him from Pius XII and signed by Pius XII and as to the relationship between Pius XII and National University of Lesotho he has no idea. He says from correspondence there is reference to Pius XII and the Oblates.
[6] This court would urge that testimony of Pw1 be read in conjunction with the witness’s statement Exh. “A”. Plaintiff has closed its case and the Defendant has also closed its case.
[7] Seems to me according to counsel agreement all that this court has to decide is whether there was mandate for applicant to proceed as it did Pw1 Ntšiu Ntlatlapa having been called to affirm this and having, amongst other things, testified on oath before me that “I at all times to and consulted with Reverend Manyeli in this regard, who was the representative of the Defendant and duly authorized in such capacity.” It will be observed Defendant has not denied this. Having handed in his statement Exh “A”, Pw1 has also testified “it is correct to say Defendant mandated me to proceed as I did” and this statement is not denied by the Defendant either. Pw1 has further testified as appearing in Exh “C” summary of Project Activities apart from Rev. Fr. Manyeli there were other “Oblates namely Rev. Fr. A. Motanyane, Rev. Fr. N.T. Makhalemele and Archbishop B. Mohlalisi” and, according to the witness, the Oblates accepted all the work done, something not denied by the Oblates either nor is it indeed denied that the Oblates submitted the proposal to Rome for funding and I must add Pw1 in the summary of Project Activities has alleged Rome provided funding and this has not been denied.
[8] I don’t see how such serious allegations can be levelled at the Defendant and be left unchallenged unless they are true. There was evidence on oath to back up Plaintiff’s case and if Defendant was minded to deny Plaintiff’s allegations he should have in like manner called viva voce evidence to rebut Plaintiff’s testimony afterall Defendant’s witnesses were available to give evidence. Defendant’s effort to fight Plaintiff’s case was no more than to do so by hindsight. Wille in his Principles of South African 8th Ed. p.592 describes a mandate as “a contract whereby one person, the mandatory, undertakes to perform some lawful task for another the mandator. It would seem, according to Wille supra at p.593 as a general rule the mandatory in Roman law was not the representative of the mandator and if he concluded contract with third persons in execution of his mandate he did so in his own name and not on behalf of the mandator (exactly what Rev. Fr. Manyeli did) the rights and duties under the contract being his alone whilst the mandator could indirectly acquire a right of action against the third party by means of cession though he could not do so directly.
[9] Apparently today the position is different for the mandate may well include a power to represent the mandator, but it need not do so (see LAWSA Vol.17 ss 2-3). Has been said thus for example a person wishing to sell his house may authorize an estate agent to sell the property on his behalf, though more often than not he will merely instruct the ‘agent’ to find a suitable purchaser with whom he might conclude the deal himself and in our case it would seem Rev. Fr. Manyeli was a mandatory to find builders for the mandator the Defendant who, under normal circumstances, would conclude the deal with Defendant though, as we know, Defendant has concluded no such deal with Plaintiff who, despite funds being unavailable appears to have completed the project basing himself on future availability of funds from Rome. Plaintiff has claimed funds from Rome are available and he must be paid. Defendant has not denied Rev. Fr. Manyeli app arently also an Oblate represented him or that he is not in receipt of funds from Rome. In fact despite overwhelming evidence against him, Defendant has not denied that he is indebted to Plaintiff recalling when Mr. Ntlatlapa was called to testify the only issue in dispute was whether Plaintiff had a mandate to proceed as it did and yet Mr. Ntlatlapa having testified there was such a mandate his testimony has not been controverted by the Defendant.
[10] Seems to me common cause that the late Rev. Fr. Manyeli acted on behalf of the Defendant and even if it’s not common cause, Defendant accepts that the Rev. Fr. Manyeli represented Defendant the reason Defendant has not taken trouble to deny the obvious.
[11] Defendant not having denied his liability to the Plaintiff, this court finds Defendant is liable to Plaintiff in the sum claimed plus interest thereon and costs and accordingly judgment is entered for the Plaintiff as claimed in his summons.
G.N. MOFOLO
PUISNE JUDGE
For the Plaintiff : Mr. Mpaka
For the Defendant : Mr. Matooane
