Lusewa v The Muslim Association of Malawi (Civil Cause 734 of 1987) [1991] MWHC 10 (18 February 1991)

F BETWEEN: IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE N0.734 OF 1987 . ---- • HIGH CO 02 ,,,, · 1993 - - ~~)' )) II .··<./ ~ .... ,.. .... ..:..;~:;:._.;;;..:;. •.<' PETER LUSEWA ?LAINTIFP THE MUSLIM ASSOCIATION OF MALAWI . . . . . . . . . . . . DEFENDANT AND CORAM: MKANDAWIRE, J. Chatsika of Counsel for the Plaintiff Jussab of Counsel for the Defendant Manondo (Mrs), Official Interpreter Phiri/Longwe, Court Reporters JUDGMENT It is not in dispute that there was a building contract between the parties. This was to take place at the Blantyre Islamic Centre at Chadzunda near Mpemba on the Blantyre/ Chikwawa Road. two blocks of buildings. One block consisted of 4 units, while the other block consisted of 5 units. Each unit would comprise: It was agreed that the plaintiff should -hui.ld l dining room 1 sitting room 2 bedrooms To each unit was to be joined a sub-unit consisting of: 1 kitchen 1 bathroom 1 toilet A unit was t h erefore a complete house on its own and the plaintiff was to build 9 such units/houses in 2 blocks. was part of the agreement that the defendant would provide all the building materials, while the plaintiff would provide labour. Providing labour involved employing bricklayers, painters, carpenters, watchmen, laboure r s, women to draw water as there was no piped wate~ and, indeed, the entire work£orce. All this is not in d:lspute. What is in dispute, however, is the price attached tc this contract. Most surprisingly, it was not reduced into writi~9. It - - Apart from this main contract, there were supplementary contracts, so to say. Euch supplementary contract, however , I shall come to these supplemen was a contract on its own. tary contracts later in this judgment. It was the plaintiff's evidence that the total cost of building the two blocks containing 9 units was Kl8,000.00 at K2,000.00 per unit. He said he carried out the negotiations with Sheik Saad Al-Talib who is no longer in the country. He told the Court that he had suggested that the contract be put in writing, but the defendant never drew up any contract, so the matter was left in abeyance. When he started the job he had some capital of his own and he was paying salaries out of this. But before completion, he run out of money and so he had been advanced a sum of K6,200.00 to enable him pay his workers. The agreement was that he would be paid at the end of the contr a ct. Having been advanced K6,200.00, the balance was Kll,800.00. The contract was over in June 1 1985, but when he had demanded payment he was told there was no money as the defendant was waiting for money from donors. This went on until he decided to institute these proceedings. evidence that at the end of the contract he had problems with his workers and so they took away all his implements. This was because he could not pay them as the defendant had not paid him. It was his The only real witness for the defendant was Mr. Farrad Hassan who was the Administrative Officer and later Executive Secretary of the defendant. There was a second witness, but his evidence did not amount to anything. Mr. Hassan's evidence was that as Executive Secretary he knew details of the contract between the parties and the terms of this contract were negotiated in his presence. It was Mr. Hassan's responsibility to draw up contracts and to see to it that they were signed. Perhaps I should mention that Mr. Hassan is a lawyer by profession. Hf~ left the defendant's employ in 1989 and he is now an advocate with the Departmenmt of Legal Aid. Mr. Hassan failed to com£! up with any reasonable explanation as to why this particular contract was not reduced in writing. At one point in his evidtz,.ce he suggested that it was the plaintiff wh o was refusing to sign, but he did not insist for he realised that such a n assertion would not make any sense at all. The evidence of Mr. Hassan was that the contract price for the 2 blocks comprirdng 9 units was K6,400.00, that this was paid in full as was &greed. was to be paid in four ~ tages - at slab level, window level, roofing level and compl;tion, less 10% retention fee. conceded that the reten;ion fee has not been paid todate. Towards the e n d of the ,iontract the plaintiff requested that he should fix doors and do some other carpentry work. This was granted him as an e~tra contract and at an agreed cost of Kl, 000. 00. A docun1ent l. eaded ,. Set th rnent" was drawn up. It was his evidence that this It was It - 3 - was in fact Mr. Hassan who drew up this document and according to him it embraced the entire contract and not just carpentry work. June, 1985, marked the end of the contract. to this document at some convenient time in this judgment. It is the defence case that this document signe d on 5th I shall come back As I have mentioned above, apart from the main contract, that is the two blocks consisting of 9 units, ther e were also e xtra jobs and each was a contract on its own. The se were particularised as follows: Ci) To construct floors betwe en the house and kitchen made of 3# hard core using broken bricks and stone. A figure of K2,O25. OO was agreed for each block of 4 units and 5 r e spectively and the total cost of the 2 blocks was K4,O5O. OO. (ii) Construction of 2 septic tanks with soakaways and manholes at a cost of Kl,20O. OO e ach; K2,400.00. (iii) Carry out ant-protection work covering the entire floors of the 2 blocks at a cost of KSOO. OO per block= Kl,OOO. OO. It was the plaintiff's e vidence that he did all The plaintiff's claim is in the total of Kl9,250. OO, plus interest. these extra jobs as was agreed, but at the end of the day he was not paid both on the main contract and on the e xtra jobs . Mr. Chikhadzula, PW.2, a quant ity surveyor by profe ssion, testified that from the information he got from the plaintiff and from his own physical viewing of the total construction work done by t he plaintiff at the Islamic Centre, h e e stimated that labour alone would cost K25,OOO. OO. It is now time to e valuate the evidence. As both learne d Counsel had correctly observed, this case is mostly It is a question of who to beli e ve as betwe en the factual. plaintiff and the defendant. This case is not based on a ~uantum me ruit and to this effect, Mr. Chatsika submitted that th e purpos e of calling Mr. Chikhadzula was merely to show whose evide nce is likely to b e true. Speaking for myself, I fi n d littl e difficulty i n thinking that it is the plaintiff's evidence which has the probability of truth. dealing with t he main contract. I had the occasion to see both Mr. Lusewa and Mr. Hassan and I forme d the imp r e ssion that Mr. Lusewa's e vide nce has th0 ring of truth. Mr. Hassan had immens e d i fficulty in c::xplainins-1 some o f the t h ings. For example, h e was cl e arly in trouble '.fhen pr e ssed as t o why no written contract was dra\\'n and sign~d. th e settl e me nt which Mr. Hassan claims covered the e ntire contract: I a m presently I now set out in full ~-~-- ·~- ~ -· -· ~ __ ,~ .... ----',,,.,,,.,,. ,, ,,,/ ✓ SETTLEMENT #DATE 5th June 1985 That the As sociation and M~. Lusewa have agreed to settle their contract as follow s : 1. Upon finishing all carpentry jobs the Association shall pay Mr . Lus e wa Kl,000.00 only. 2. Mr . Lusewa shall not at all have any claim against the Association on the matters regarding the houses he was working on. 3. Mr. Lusewa·s labourers shall be the concern of him as a lab our contractor. 4. That the Association shall have no further claim against Mr. Lusewa. 5. This marks the end of the contract in respect of the construction of the houses. H If Mr. Lusewa·s explanation is that this document only relates to the carpentry job for which he was duly pa id. I think that it is Mr. Lusewa·s explanation that makes sense. This document was prepared by Mr. Hassan and it was signed by him and Mr. Lusewa. One wonders why Mr. Hassan found it fit to prepare this settlement document for the carpentry job. this document covered the whole work, including the main contract, then one would have expected the full contr a ct price to be spelt out in the document and that Mr. Lusewa was fully paid. The document does not even give deta ils of the jobs the plaintiff did, it only refers to carpentry work and as I said earlier, each additional contract was a separate and complete contract on its own. That is why I a m inclined to agree with the plaintiff that the document only relates to carpentry work. can only mean that the document covered the entire work I think it unfortunate for performed by the plaintiff. Mr. Jussab to try to capitalise on paragraph 5. that parties are free in contract, but inconceivable to suggest that the plaintiff agreed to build all the 9 units/houses for only K6,400.00. This is highly improbable. As for the settlement document put in by Mr. Hassan , all I can s a y is that I find it woolly, ambiguous and crafty. It certainly does not stand for all the work the plaintiff did. to build the 2 b locks comprising 9 units at K2,000.00 a unit, making a total of Kl8,000.00. Since he was advanced the sum of K6,200.00 , In his submission Mr. Jussab suggested that paragraph 5 In the re sult, I find that the plaint i ff was I enter judgment in the sum of Kll,800. O0. t hink it is I am aware I ' -----~ c,\-1 COURT OF ""' - - • ",~, ' !(}~~ 0 2 1 !I ' ------- l/f!1'~ f! Y . - .. ,._ ,, .. •• "° r \ I now turn to the extra jobs or contrac'~--s ·~- . The In his evidence defendant's case was full of contradictions. Mr. Hassan said the only extra job given to the plaintiff was In cross-examination he conceded that he saw carpentry work. the plaintiff construct concrete floors, septic tanks and man holes, but he did not know how these were negotiated. He did not even k now whether these were paid for. Mr. Hassan was not sure but he thought these had been negotiated for b y his boss. Mr. J ussab submitted that septic tanks and manhol e s could not be a separ ate cont r act as th~s e are usually built together wit h t h e h ous e . This was contradicting their own d ef ence, b ecaus e a t paragrap h 3 of it s d e f e nc e , the defendant concedes that there was a supplementary agreement to construct concrete floors b e twee n each hou s e and kitchen and 2 septic tanks an d It is stated in the defence that the agree d price manhol e s. I think that the defendant is in total was Kl,000.00 . confusion. The Kl,000.00 was for the carpentry job and not for floors and septic tanks. The plaintiff's e vide nce is solid in this respect . indeed extra or supplementary agr e ements to construct concrete floors and septic tanks and rnanhol tJ s for K4,050.00 and K2,400.00 respectively and that upon completion the plaintiff was not paid. Mr. Lusewa mentioned a wall between units, although this was not pleaded. The main substance of the extra jobs was pleaded and this was conceded in the defence. j udgment in these amounts. I do not think it fatal that in his evidence I therefore find that the r e w2re I therefore enter I now turn to the third extra or supplementary agreement to carry out ant-protection work covering the entir e floor of the 2 blocks at Kl, 000 . 00 . Mr. Hassan said the plaintiff did not do this as this was already done at slab level. The plaintiff's evidence was that ant-~roofing was not done at slab level and so he was asked to do it later at an e xtra I do not think that Mr. Hassan·s memory served him cost. right. He gave me the impression that h e was telling the Court what usually happens in construction work and not what actually happened in this particular case. When pressed in cross-examination he said fumigation was done by a different company by the name of Hawk Inda strial and Agricultural Trading Limited. that it is the plaintiff's story which carries th e probability I therefore e nter juogment for Kl,000.00. of truth. think he was confusing matters. think I I In th e final analysis I enter judgment for the plaintiff in the sum of Kl9,250 .0 0. The plaintiff has pray e d for int~rest. Mr. J ussab said that this was ill-founde d as it is not shown from what date interest is to b e awarde d. It was clearl y pl2ad~d and b~rne out by th e evidenc e serious. that the contract was comp let e d in Jun~, 1985 and that is when Lhe mone ys be c ame payabl~. that time. I therefore aw a.rd th e plaii :tif f int e rest at the I nt e rGst wlll there fore run from I do not think Mr. Jussab was ·- 6 - normal bank rate obtaining in June, 1985. ~annot agree as to what int e rest is payable then the plaintiff is at liberty to apply to Court for assessment. If the parties The defendant is condemned in costs. MADE in Chambers this 18th day of Feb ruary, 1991, at Bl antyre . M . . ---