Dzoole v Kaliombe (Civil Cause 318 of 1987) [1991] MWHC 5 (11 April 1991)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO.318 OF 1987 BETWEEN: A. DZOOLE • w ••••••••••••••••••••••••••• PLAINTIFF AND A. R. KALILOMBE ........................ DEFENDANT CORAM: TAMBALA, J. Chiphwanya (Mis.s), Counsel for the P.laintiff Mpando, Counsel for the Defendant Kalimbuka Gama, Official Interpreter Phiri, Court Reporter JUDGMENT This is a plaintiff's claim for the sum of Kl3,127.00 being the value of 2 freezers, 1 geyser, 2 cookecs, 1 counter, which the defendant promised to fit in the plaintiff's resthouse and restaurant. The defendant on h.is part counterclaims a sum of K6,800.00 which t1l€ plaintiff, in breach of a written agreement between them, failed to pay to the defendant. For the past 18 years the plaintiff has been running the business of Resthouse and Restaurant in Kasungu. He previously conducted his business in rented premises. In the year of 1985 he sought financial assistance from Indefund Limited to enable him construct his own business premises. He succeeded in securing such assistance. He was required by Indefund to find a registered building contractor who would carry out the construction of the rest house and-restaurant. It was agreed between the plaintiff and Indefund that the funds which would be lent to the plaintiff would be paid direct to the contractor. The funds would be used for the purpose of purchasing materials and payment of labour. The money would be paid in instalments and at certain agreed stages in the course of carrying out the project, The plaintiff then contacted the defendant who runs, also in Kasungu, the business of building construction. He is a registered contractor under the name of Neat Building Contractor. On 22nd April, 1985 the plaintiff and the -2 -defendant drew a written agreement. In terms of that agreement the defendant undertook to finish construction of the plaintiff's resthouse and restaurant from #the already part build foundationN. He was required to supply all the materials and labour necessary for the completion of the project. He also undertook to fit in the building, at his expense, some beddings, dining set, 2 freezers, 2 counters, l geyser and 2 cookers. The contract price was K69,000.00 payable to the defendants in agreed instalments at various stages of the construction of the building. When the plaintiff presented this agreement to Indefund it was rejected on the ground that the contract price was too high. The plaintiff and the defendant met again on 15th May, 1985 when they drew up another contract. In this agreenent the defendant undertook to perform the same tasks as in the agreement of 22nd April. The contract price was however reduced to KS0,000.00 an<l it was payable as follows: 1st payment of Kl2100.00 on commencement of work; 2nd payment of KS,000.00 when the building is at window level; 3rd payment of Kl8000,00 when the building is at wall plate level; 4th payment of K6900.00 on completion of roofing; 5th payment of K3000.00 after completion of the building; 6th payment of KS000.00 to be retained by the plaintiff and refunded to the defendant a year after the completion of the project. The contract was required to be performed within 5 months from the date of commencement depending on availability of funds. The plaintiff and the defendant signed this agreement whose terms were acceptable to Indefund. The date on the second agreement is cancelled and there is substituted 23rd June, 1986 as the date when the contract was made. The plaintiff said that the defendant and himself cancelled the original date and wrote the new date because there was delay before Indefund released the funds. The defendant denied that he was a party to the cancellation of the original date and substitution of 23rd June, 1986. I tended to believe the defendant that the cancellation of the original date and insertion of the new date was done in his absenca and without his knowledge. There was in my view no need for the change of the date when the contract was drawn and signed. Performance of the contract was to be completed, in my view, within five months from the date of commencement of construction work; the time did not start running from the date of signing the written contract. I am satisfied that the defendant was not a party to the cancellation of 15th May, 1986 and the substitution of the fresh date. The plaintiff said that the defendant started construction of the building from the window l~vel. The defendant told the court that the plaintiff only constructed foundation on three sides of the building. He said that he constructed the foundation for all the internal rooms and -3 -the other side of the house. After considering the terms of the agreement between the parties, I am satisfied that the plaintiff told a lie when he said that the defendant commenced construction of the building from window level. I find that the plaintiff only built the foundation on three sides of the building and it was the defendant who constructed the rest of the foundation including the foundation for the internal rooms. There was another conflict in the evidence. The plaintiff said that construction work commenced on 23rd May, 1986. Th8 defendant said that he started work on the building in August, 1986. I am satisfied that both parties <lid not tell the truth regarding when work on the plaintiff's building actually commenced. The defendant disclosed during cross-examination that he commenced work on the project on 27th June, 1986. After considering the terms of the written agreement I am satisfied that the defendant commenced work on the 27th June, 1986. In reply to a question from the bench the plaintiff said that the defendant l~ft in May, 1987 and that by that time he was supposed to buy l geyser, 2 cookers, 2 freezers, 1 counter, 12 dining sets and all beddings for the resthouse. and restaurant. He added that the defendant had done everything else apart from the provision of these items. From the available evidence it is very clear to me that at the time that the defendant left the construction site he had completed construction of the plaintiff's resthouse and restaurant and that all that remained for him to comply fully with terms of the written agreement was to supply to the resthouse and restaurant 1 geyser, 2 cookers, 1 counte~. 2 freezers, 12 dining sets and some beddings. The defendant did not complete construction of the building within the five months as stipulated in the contract. However it would s~em to me that the time for the completion of the contract was not of essence. To begin with the time for completion of the contract was expressly made dependent on availability of materials. The available evidence shows that difficulties were experienced by the defendant in obtaining some materials such as cement and paint. Then the plaintiff conceded during cross-examination that difficulties were experienced in obtaining funds from Indefund and that occasioned delays in carrying out the construction work. He then said that he did not mind if completion of the work took more than five months. It is therefore immaterial that in performing th8 contract the defendant took more time than that stipulated in the agreement. The defendant, in the course of giving his evidence, explained why he did not supply the required items. He said that when he was first approachGd by the plaintiff he agreed -4 -to carry out construction of the building and supply the fittings at the contract price of K69,000.00 in terms of the agreement of 22nd April, 1985. H8 said that when he was later told by the plaintiff that the figure was rejected by Indefund and was reduced to KS0,000.00, he told the plaintiff that the new contract price was inadequate. He said that he told the plaintiff that he could not perform the contract at that price. It was the defendant's evidence that the plaintiff persuaded him to accept the new contract price and promised that he would negotiate with Indefund for additional funds. The defendant testified, and it was conceded by the plaintiff, that as construction of the building progressed the plaintiff at one stag,::! n~quested Indefund for additional 30% of the original loan. Indefund rejected the 30% but gave the plaintiff a further 15% of the original loan. The defendant contended that he did not receive the additional funds. He said that these were paid direct to the plaiQJ:.if~ on the understanding that he would utilise the funds for the purchase of the gyser, 2 cookers, 2 freezers, a count.er and beddings. It was also contended by the defendant that he did not receive the whole contract price as stipulated in the agreement between them. He said that he received the first payment of Kl2,100.00 on 27th June, 1986; the second payment of KS,000.00 on 6th August, 1986; third payment of Kl8,000.0Q on 7th October, 1986 and the 4th payment of K6,900.00 on 31st December 1986. He received these payments direct from Indefund. These totalled K42,000.00. The defendant then disclosed he received Kl,200.00 from the plaintiff. The total sum of money which he received for carrying out work under the contract came to K43,200.00. The defendant testified that the plaintiff. demanded from him a sum of KS,000.00 which he said he would use in purchasing some items required for internal fittings. He said that he, as a result, issued to the plaintiff a cheque dated 7th October, 1986 for KS,000.00. This money was part of the funds which he rec0ived, under the contract, from Indefund. It was the defendant's evidenc2 that the plaintiff made persistent d~mands for some of the money paid by Indefund under the contract. He said that the plaintiff used to say that he was the ultimate borrower of the money and he alone would be responsible for the repayment of the loan. He said that as a result of such demands he issued to the plaintiff the following cheques:-1. Cheque dated 13th October, 1986 for K7,900.00. The plaintiff said that he would use the proceeds in purchasing building materials. It was the -5 -contention of the defendant that the plaintiff never purchased materials for the building, the subject of the contract. 2. Cheque dated 9th March, 1987 for K200.00. The plaintiff did not tell him for what purpose he intended to use the proceeds of the cheque. 3. Cheque dated 12th August, 1986 for K830.64. The plaintiff did not disclose the purpose for which he wanted the funds. The defendant denied that the money was for repayment of money owed by the defendant to the plaintiff. The defendant denied owing such money to the plaintiff. 4. Cheque dated 26th November, 1986 for K300.00. The plaintiff did not disclose why he wanted the money. The def2ndant denied that the money was payment for meals taken by defendant's workers during lunch time. 5. Cheque dated 13th January, 1987 for K471.73. The defendant said that the plaintiff did not tell him why he requested that money. He deniBd that the money was used by him for payment of wages of his workers. After a careful consideration of the evidence adduced before this Court I find as a fact that when the contract price was reduced to KS0,000.00 at the suggestion of Indefund the defendant expressed his unwillingness to perform the contract and that he accepted to undertake the obligations under the contract after some persuation from the plaintiff and after the plaintiff promised that he would obtain additional funds from Indefund. It is not in dispute that the plaintiff subsequently requested 30% of the original loan from Indefund and that the request was refused; but Indefund made an additional advance of 15% of the original loan. The plaintiff claimed that in addition to the sum of K43,200.00 which the defendant admits to have received the defendant received other payments. He claimed that the defendant received a total of over KSl,000.00. The plaintiff failed to adduce satisfactory evidence showing that the defendant received other money than the K43,200.00; if the money was paid by Indefund it would have been easy to call a witness from Indefund to prove the other payments. I found the evidence of the plaintiff regarding the other payments vague and unconvincing. I therefore find as a fact that the defendant received K43,200.00 only in the course of carrying out the work under the contract. -6 -The plaintiff conceded when he gave evidence in chief that the defendant issued to him the cheque dated 7/10/86 for KS,000.00, He said that he intended to use the proceeds of the cheque for purchasing dining sets. It must be appreciated that it was the duty of the defendant, under the contract, to supply the dining sets. From the available evidence I find that ch.e.que dated 13th October, 1986 for K7,900.00 was issued by the defendant to the plaintiff. I am howevor satisfied that the plaintiff used the proceeds of the cheque for the purchase of materials shown on receipts exhibits P4, PS, P6 and PB. I believed the plaintiff whcrn he said that on the material day he went with the defendant to Lilongwe where they bought the items shown on the receipts using the proceeds of the cheque for K7,900.00. I further find that they also spent K250.00 from the proceeds of the same cheque in hiring a lorry from Kasungu to carry the goods to the construction site. It must however be appreciated that the sums of money shown on exhibits P4, P5, P6, P7 and P8 total K7,276.ll. There is therefore a difference of K623.89 which has not been accounted for by the plaintiff. It must further be appreciated that it was not the responsibility of the plaintiff to purchase and supply materials required for the project. This was the responsibility of the defendant under the contract. The evidence shows, in my view, that the plaintiff used to demand from the defendant the money received from Indefund under the contract. I find that the plaintiff used to interfer0 generally with the r.esp.on.si bilities of the defendant under the contract. I further find that through persistent demands for money the plaintiff received from the defendant K200.00 through cheque dated 9th March, 1987; K830.64 by cheque dated 12th August, 1986; K300.00 by cheque of 26th November, 1986 and K471.73 through cheque dated 13th January, 1987. I did not believe the plaintiff when he said that the cheque for K300.00 was for payment for meals taken by defendant's workers at the plaintiff's restaurant. I also did not believe him when he said that the cheque for K471.73 was for payment of wages for defendant's workers. I was also of the view that the plaintiff did not tell the truth when he said that the K830.64 was used for repayment of money owed by the defendant to the plaintiff. I find that this money was part of the money which the defendant received from Indefund under the contract. From the available evid~nce I am satisfied that the defendant did not receive the additional loan which the plaintiff subsequently obtain€d from Indefund. It would have been easy to prove that the additional funds were p.aid to the defendant by obtaining the relevant documents from the bank or by calling a witness from Indefund. The la.ck of documentary evidence from the bank and failure to call a -7 -witness from Indefund to testify on this matter tend to show that the additional loan was received by the plaintiff who utilised it for his own personal ends. I find that the plaintiff received an additional K7,500.00 from Indefund being 15% of the original loan of KS0,000.00. I have already found that he received from the defendant a cheque for KS,000.00 and that he failed to account for the sum of K623.89 from the-proceeds of a cheque for K7,900.00; then from the cheques dated 9th March, 1987; 12th August, 1986; 26th November, 1986 and 13th January, 1987 the plaintiff received from the defendant a total of Kl,802.37. From the available evidence I find that out of the funds which the Indefund disbursed under the contract the plaintiff received a total sum of Kl4,926.26; this money was used by the plaintiff for his own personal purposes totally unconnected with the contract entered between himself and the defendant. It would seem to me contrary to common sense and reason that the plaintiff having received and spent the Kl4,926.37, contrary to the terms and conditions of the contract between himself and the defendant, should now demand and insist that the defendant should pay to him the value of 2 freezers, 1 geyser, 2 cookers and a counter, items required under the contract. After considering the evidence before me and the conduct of the parties in performing their contract, I am satisfied that the parties subsequently varied the terms of the written agreement with the result that the plaintiff undertook to perform certain obligations which were required to be performed by the defendant. I am satisfied that among the obligations which the plaintiff demanded and took upon himself to discharge was the supply of beddings, 2 freezers, 2 cookers, dining sets, a geyser and a counter. I find that the defendant issued the cheque for KS,000.00 to the plaintiff and allowed him to receive the additional K7,500.00 direct from Indefund to enable him to purchase and supply these items to the restho11se and restaurant which the defendant constructed. The burden to prove the claim against the defendant rests on the plaintiff and this is consistent with the maxim *ei qui affirmat non ei qui negat incumbit probatio#, Phips on Evidence 13th Edition par. 4-02. The standard of proof which the plaintiff must satisfy is one of proof on a balance of probabilities: Miller v. Minister of Pensions (1947] 2 All ER 372. After carefElly considering the evidence before me and the issues raised in this case I am satisfied that the plaintiff has failed to prove his claim on the balance of probabilities. His claim must, therefore, fail. I dismiss it. The defendant completed th~ ccnstruction of the plaintiff's resthouse and restaura~t. It was the plaintiff • co\.111. T OF M"L"' '-" ..,.,<,\>-. ""' ' • 02 JUL 1993 _.) --.;;;;_ •• _ I 11te ao'( ~--...._..;.::..__~~- • r -8 -who frustrated the defendant and made it impossible for him to discharge his obligations in terms of the written agreement. He did not receive the 5th and 6th payments as stipulated by the written agreement. These payments total K8,000.00. The plaintiff only gave him Kl,200.00 leaving a balance of K6,800.00. I am of the view that the defendant is entitled to this sum of money. The defendant's counter claim succeeds. I enter judgment in favour of the defendant for K6800. Costs for successfully resisting the plaintiff's claim and establishing the counterclaim are granted to the defendant. PRONOUNCED in open Court this 11th day of April, 1991 at Blantyre. t)I. Lt-1. ,.t. D. G. Tamba!a JUDGE -------------• ~~~ouRr -2JUL1 \ . JJ ~