Chimdzeka t/a Chimdzeka Building Contractors (Civil Cause 528 of 1992) [1993] MWHC 7 (27 May 1993)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 528 OF 1992 BET WEE f·!: C S C ;-i I : -J Z E KA t / a C :-n : : D z i: ;(;; B ~i I L D I : '. G C Or TR f, C TO Rs O , • • ., ,. • • 0 0 - • • , • ? !... Cd f-J T I F F - and - CORA~: ~BA LAME, J. Sh i kopa, of Counsei, for the Pl aintiff :'b vundula , of Counse I , for the Defendant :'kh oma , Officiai Interpreter R U L I M G in contractor Th e p l aintiff a is Suilding buil~ ir g Contractors and claims among other tr. i ngs , the sum of K88,000.85, being balance of a contract pr i ce . The defendant is a local authority estab ! ished under 1'\ ct ( Cap 22:vi) of the the Loca l Government La vv s of ~1 a !. a\'!i '" this case , C S Chimd.zeka , tradin g from the defendant , Chimdzeka i-1reas) (Urban as the i'-i arket . advised '; st day of in dispute . Th~ facts of :-: ovember 19 9 1_ the case are not 30 th of December , The defendant , on the p i a i nt ~ff that he had been a\'1arded a contract to paint its l ater houses and market at a cost of ~i 72 , 80C . 83. This was reduced to writing . ? ursuant to the aforesaid cont ract, by the 3 Gti1 of :-: ovember the plaintiff did paint •i5 staff houses St ill to be painted wa s the and a tavern fo r the defendant . the defendant ' s Centra l On ;: defendant through its authorised agent and or se rv ant , ~1r By Sanda , Administrative Officer , terminated the contract . sum of that date ;<S4,C0C. Q2 out of sum of the contract was being XCS ,OGC. SS. terminated . t he defendant said the contract Has , by virtue of ti1e ~revisions of section 75(-,n of the Loca l Go vernment the (Ur ban Areas) Act to defendant , be i ng una\lf are of a 1>1ard trie consent of the ~: inister prior to a wardin g the car.t ract to t he o l a i n t i ff \:I h o t h e 1 o we st ny his Order of i3 th !". pril 1993, the Re gi st rar of bidder . the ~ igh Court ordered the the defe nd ant as a defence . name ly, whether the contract between the p l aintiff a a tile defendant had paid t h e d e f e n d a n t c l a i me d fa iled to obt ain the contract price , t :1e contract to the On being as ked why those prov1s1ons , I owest bidder or ( Cap 22:01). i l legal, because , i·1 a s not l ea ving raised tssue that by HIGH COURT LIBHARv ------·- the piaintiff and terms of section 76(4 ) of the Local Government (Urban Areas) Act (Cap 22: 0-1) of the Laws of '~a 1 avt i, be pl aced before a Judge for determi.nation ,. the defe;1dant illegal, \·ms in for the the contract Mr Chikopa, who the contract on appeared termination of the plaintiff. by its part . has the that submitted He defendarit was a breach of inva lid ate contends that section 76(~-) of the Act does not the co;1tract , as is an administrative and procedura ;_ instrument . He further argued that, since the plaintiff had nothina and the ministerial consent, he cannot be heid obtaining of is r2sponsl bi e for the defendant ' s mistakes, if any , as he the an contract , then he must pay the rest of the contract price, he co;.cJ.uded . the defendant breached innocent party " the contract to~ do with awardina of Since the 11: 1.-1rc;ig bidder haci been a1;;arded rr Mbvundula appeared for the defendant . He contended l'l a s i 11 e g a ; a n d th at th e c on t r act w a s entit ~ed to terminate it immediately it was discovered that the that there ~ad been no ministerial consent . He further submitted that the plaintiff is not entitled to the remaining contract pr5.ce , because he has neither done the work nor has he expended any of his materials on any fresh work. t h at t he defend a n t the contract and Section 7~(4} of the Act is in the following terms: '.; >n A Local Government any accept tend2r circumstances , appears to it to be the most advantageous and may take security for the due and faithful performance of every contract or the Loca! Authority may decline to accept any tender - F-, uthority may i'!hich having regard all. to before Provided accepting any tender other than the lowest shall ob ta i n the consent of the :F; in i st er . 11 l ocal Authority that the i.n initio or !-\ contract can be said to be There are various categories of illegal contracts and the course of they may be declared void ab their performance ,, illee;a1 if i t is a co~tract to commit a crime, a tort or a fraud on a third party, a contract that is sexually immoral , a contract pr2judic ial to public safety. a contract prejudicial to the admi:iistration of to corrupt justice, a contract J. ife, a contract to defraud 1~evenue, or a contract pub l ic that coi1tra·:eries or does not conform to a statute under i s n o t d i s p u t e d \·; h i c h the ti,at the plaintiff Nas among people t h e \'JO r k. s i n q u e st i on , no r am , t e ;-, d e ,~ , a l t h o u g h he w a s n o t howeve~ , aware that generally, the defendant would be under no obligation to accept the lo~est tender . Since his , the tendered for 1-rn n t h at h e b i d de r " I \~ho d i s p u t e d l o \v e s t i n s t a n t c a s e i s m a d e . I n t h e liable t h e i s i t i t l t t e n d e r t h e 1 o we s t , t-rn s n o t the consent and blessing of p l a i n t i -7 f : s , i t s a c c e pt a n c e h a d This to have The blessin g was not there and has not been there to -date. \'! o r d u s e d i s i t I n my manciato ;~y, j u d g e r.i e n t , \'/ h et i1 e r d e 1 i be r at e o , by d e s i g n , rendered t~~ a ward of the tender and the subse quent contract n u j_ 1 a n d '! o i d a b i n i t i o O s t a n ci , \0! a s a n d \·; h i c h m e a n s r ,-iat then is the effect of this omiss io n ? t h a t om i s s i o n , ~ s o f '. ;-1 d • :Hnister " I t c a n n o t i l l e g a l . s e c t i o n II s h a l 1 11 t h e the i. n i s I t • I t lav1 i l l e g a 1 . i s a is very doubtfu l. the defend a nt and wa s no fault of ( 19 92) AC 25 , initio is treated by the ~-r Ci1i.k opa has vehement ly submitted that since th i s om J ss ! o n wa s by the p lainti ff, ti·1e Court shouJ.d gr ant the reliefs sou ght, even 1. a u s i b l e "t ;1 e c o n t r a c t u e re to b e i f s u~ge s ti.0:1, tut its viability in As Lord Hal sbury o b served in the case of Mogul Steamship Co -v is McGregor . Gow and Co ill e ;;a·'. ab Iav1 as if it had not been made at a l J.. is a v a! lab! e ~o either party . Vo action l ies for d ama g es , for I ndeed , a~ ac c ou nt of profits or for share of the e xp enses " In the case of an illega l cont r act fa;~ s al e of goods , for e xamp:e; the purchaser , even if he has paid th e purchase price , cannot sue for non-delivei~y .. in the case of Miller -v- Keliski it \'l as he ld that a s e ;~ v a n t i 1 l e g a l a n contr act of emp l oyment . c a n not r e c o v e r a r re a r s o f tota lly v oid and no (1945) 62 TLR 85 , s a 1 a 1~ y u n d e r a contract /\g a in, remedy that th e i s I t f) ~he plain tiff in this case said he, as opposed to the defendant , wa s not a ware of the provisions o f section 7~(4) of the .1. ct and sh o u :. d , therefore , not be he 1 d v i ct i m of the d e f end a n t : s act of om i s s i on ., t h i s f o rm at i o n , n e i t h e r 1,1 h e re a c on t r a c t o i: e " ig nora nce, ex party c an circum vent tumpi causa non oritur actio . I hold that t he contract in q uestion bet ween the pl aint iff and the defe~da~t ~a s , and sti '.l is , as p lead ed by the defendant in terms of in hi s sec ond paragraph of the defence , sect ion 73(1) of the Loca l Go ve r nment (U rban Areas) ~ct {Sap t he L a t'J s of : 1 a l a\·! L 2 2 : Q 'i : o f i s the rule by plead ing ! n my C o s t s to t h e def e n d a n t 0 j ud g ement . the r efo re , s et t 1 e d o n i l J. e g a 1 i ll e g a l T h e i t s J. a \•/ i n i s ; '. P. D ;~ :Jlc1ntyre ,, i n C h am b e r s t h i s 2 7 t 11 d a y o f r,: a y 'i 9 S 3 , at o/ R r :-·: b a 1 am e JUDGE