Vandagne Plant Hire Co. (Pty) Ltd v Camille (Civil Appeal SCA 3 of 2013) [2015] SCCA 17 (17 April 2015)

IN THE SEYCHELLES COURT OF APPEAL [Coram: S. Domah (J. A) ,A. Fernando (J. A) , J. Msoffe (J. A)] Civil Appeal SCA 03/2013 (Appeal from Supreme Court Decision29/2008) Vandagne Plant Hire Company Pty Ltd (herein represented by its Director Mr. George Vandagne) Anne Camille Cross-Appeal Vandagne Plant Hire Company Pty Ltd (herein represented by its Director Mr. George Vandagne Versus And Versus Appellant Respondent Appellant Anne Camille Respondent Heard: 08 April 2015 Counsel: Mr. Pesi Pardiwalla for Appellant Mr. Frank Elizabeth for Respondent Delivered: 17 April 2015 J. Msoffe (J. A) JUDGMENT [1] r have read the lead Judgment of my brother Domah, lA. r entirely agree with him and I have signed the said Judgment. I have decided to write this Judgment purely out of interest. - [2] On 2112/2012 the Supreme Court delivered a Judgment in favour of the Respondent awarding her a sum ofRs.72,000 being 80% of the total claim of Rs.90,000 prayed in the plaint being loss of use, enjoyment of the access drive; inconveniences and moral damage; extra expenses for engineer and professional services and remedial works as per substituted plan; arising from breach of a construction contract of a drive way by the Appellant. [3] Aggrieved the Appellant is appealing and has listed four grounds which read:- 1. The learned judge erred in finding that the driveway was not useable, in that this finding is not supported by the evidence adduced in the case. 2. The learned judge erred in rejecting the evidence of the Appellant on the matter of whether the driveway could be used or not and dismissing it as being "self serving". 3. The learned judge erred In law in that he used the wrong principle In awarding damages. 4. The learned judge erred in awarding the totality of the damages claimed by the Respondent in her plaint and failed to carry out a proper assessment of damages as required by law. [4] At the same time the Respondent is cross-appealing. It is contended in the cross-appeal that the Judge erred when he considered contributory cause/fault/negligence and consequently reduced the award of damages by 20% since the same was not pleaded by the Appellant. [5] At the trial it was alleged that the Respondent is the owner of Title No. H6654 situated at Pointe Conan, Mahe, which lies on the mountain side away from the public highway. The Appellant is a licensed building contractor engaged in the business of concrete road - building. [6] In March 2007 the parties entered into a contract to build a concrete driveway pursuant to an approved plan and a drawing drawn by Patrick Amade, a licensed engineer, for a consideration ofRs55,000. [7] The agreed work was executed between 29/3/2007 and 3114/2007. The Respondent's case was that in executing the work the engineer usually visited the site for supervision. And that despite several attempts and entreaties by the engineer to the Appellant while on site to execute the works as per the pegged demarcation site and to stick to the gradient as per the drawings, the latter persistently refused to do so. [8] As a result thereof, according to the Respondent, at the completion of the works it became apparent that the driveway was defective, it had not been properly routed as it had been deviated from the plan and the gradient profile was too steep. The motorable access onto the road up to the car park space was too steep and the parking area was too high up. As a result, the Respondent was unable to use her access by vehicle. This state of affairs is best captured in the Respondent's evidence appearing at page 44 of the record in explaining why she decided to sue, thus:- "Q: Madam, can you tell the Court what is wrong with your driveway, why have youfiled this case before this Court? A: The problem is that we cannot use the driveway at all either as a driveway or by foot, because it is too steep, many cars have tried to climb that road but they have failed along the way. I went to Planning Authority and they said that the driveway is too steep and that it is not according to plan, they initiate on the plan where the driveway should be corrected. " [9] According to the Respondent, on 7/5/2007 during a joint site visit by the officials from the Planning Authority and Mr. Amade, the Appellant agreed to remedy the work subject to a substitute plan to be drawn by Mr. Amade. The substituted plan was submitted in - July 2007 and approved in August 2007. [10] On the other hand, the Appellant's case was that he built the driveway in accordance with the approved plan. Furthermore, that throughout the construction work the Respondent's engineer, Mr. Amade, was present and supervised the work regularly and gave directions to the Appellant. Regarding the substitute plan the Appellant testified that it related to a different contract for which he was not liable. [11] In disposing of the appeal and the cross-appeal I propose to do so generally in a manner that will become apparent hereunder. [12] The starting point will be the averment under paragraph 5 of the Plaint. The paragraph reads:- 5. The plaintiff avers that despite several attempts and entreaties by the engineer to the defendant's Director while on site to contain the works as per the pegged demarcation on site and to stick to the gradient as per the drawings, the latter persistently refused to do so. [Emphasis added.] [13] It turns out, therefore, that the determination of the case rested on whether or not in constructing the driveway the Appellant adhered to, or rather stuck to, "the gradient as per the drawings". This was the crucial issue in the case; and it is no wonder, therefore, that in determining the case the trial Judge framed the following issue:- 1. Was the driveway constructed by the defendant defective in that it was not a viable motorable access? [14] In my considered opinion, the determination of the above issue depended on evidence. In other words, this was a question of fact whose determination depended solely on the evidence on record. [15] With the above background in mind, the main issue in this appeal is this:- Is there sufficient evidence on record to show that in constructing the driveway the Appellant did not "stick to the gradient as per the drawings"? - [16] In my appreciation of the evidence on record it seems that the parties are agreed that in determining gradient it was necessary to use "instruments", and that in this case no "instruments" were ever used. This assertion is best captured in the evidence of Mr. Joel Philo (PW2), an independent witness in the case, where at page 68 of the record he stated as follows, under cross-examination:- Q: According to the report did you take measurement of the gradient when you visited the completed works? A: Usually to determine the gradient you need instruments,you can see it is steep with your eyes but to get the gradient you need the instruments to know that. Q: Was a proper gradient taken with proper instrument after the work was completed? A: Not by our department." [Emphasis added.] [17] Mr. Philo repeated the same point at page 72 that an instrument was needed to determine the gradient of the work in question. [18] It follows that in the absence of evidence of measurement of the gradient taken by "instruments" any other evidence that the gradient was steep, too steep, etc. was opinion evidence and, at best based on hearsay. Thus, the evidence of the Respondent at page 44 (supra) that the driveway was too steep, "that the Planning Authority also said that it was too steep", etc. was opinion and hearsay evidence unsupported by evidence of measurements taken by "instruments". [19] According to the Respondent's Attorney, 10 his Heads of Arguments, exhibit P3 was strong evidence to the effect that the work was not executed according to plan. - [20] Exh. P3 was a letter written to the Appellant by Mr. Dereck Marie, Acting Senior Development Control Officer in the Planning Authority. In substance, the letter reads as follows:- Your Ref DCI60107 Our Ref QAIL TRl091111 Enquiries to: Dereck Marie TelephoneExt: 4518 Date: u" March 2009 Mr. George Vandagne Green Estate Au Cap Mahe Thru ': Secretary Planning Authority Dear Sir RE: New Access Drive and Retaining WallAt Pointe Conan-DC160107on Parcel H6653, H6652, H2027 Reference is made to the above mentioned development. It was observed that the construction of the access road has not been carried out according to approval granted. It is also a fact that you have also failed to submit the mandatory reinforcement notice prior to casting of concrete. Mr. Patrick Amade, the engineer responsible to monitor the project was written a letter dated 1rfh May 2007 which was copied to you. He thereafter submitted a substitute plan approved on 6th August 2009 to remedy the construction. (Refer to letter attached) Note that in view of non-compliance to the original approved plan dated 26th February 2007 you are now liable to rectify the construction to adhere with the approval granted on the 6th August 2007. Planning Authority should be informed of every stages of the development 48 hours to implementation. - Note that failure to comply with Planning Authority's directives will result in further action being instigated againstyour license. Should you have any enquiries on the above, do not hesitate to contact the undersigned Yours Faithfully Mr. Dereck Marie Acting Senior Development Control Officer FOR: CHIEF EXECUTIVE OFFICER PLANNING AUTHORITY" Cc: Anne Camille, Andre Toussaint, Jovanah Barreau, Ryna Bistoquet Seychelles License Authority, Orion Mall, Victoria [21] In my considered opinion, the above letter poses a number of difficulties. One, it was written on 24/3/2009, about two years or so after the work was done. Two, Mr. Dereck Marie did not testify in the case. Thus, the probative value or otherwise of exh. P3 was not tested by way of cross-examination, etc. Three, exh. P3 did not negate the evidence of PW2 that in determining gradient it is always necessary to use "instruments". [22] The cross-appeal arises, inter alia, from those portions of the Judgment where the Judge found contributory negligence, thus:- " Indeed, in any actionfor damages that isfounded upon thefault or negligence of the defendant, if such fault or negligence is found on the part of the plaintiff or third party that contributed to the damages, the court shall apportion the damages in proportion to the degree of fault or negligencefound against the parties respectively At the same time, the fault of the plaintiff's engineer lies in that he omitted to check the work, then and there while the work was in progress. This omission is significant enough to merit consideration as a contributory causelfaultlnegligence. The degree of contributory cause or fault or negligence on thepart of the plaintiff's engineer, in my considered view, is a 20% responsibility for the defective work. Hence the consequential - damages payable by the defendant should be reduced by 20% on the loss and damage sustained by the plaintiff in this matter. " [23] It is trite law that parties are bound by their pleadings. In this case the issue of contributory negligence was not pleaded. It was not therefore open to the Judge to disregard the pleadings and deal with an issue which was not pleaded in the first place to reach a conclusion that he thought was just and proper - See, for instance, the case of Blay v Pollard And Morris [1930] 1 KB 311, at page 634, Scrutton, J. [24] In the case of Farrel v Secretary Of State [1980] 1 All ER 166 HL at page 173 Lord Edmund Davies made the following pertinent observation:- It has becomefashionable these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been many times when an insistence on complete compliance with their technicalitiesput justice at risk, and, indeed, may on occasion have led to its being defeated. But pleadings continue to play an essential part in civil actions for the primary purpose of pleadings remain, and it can still prove of vital importance. That purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable to take steps to deal with it. [Emphasis added.] [25] The above point is reiterated in Vel v Knowles SCA 4111998,42/1998, LC 136 that a court may not formulate a case for a party after listening to the evidence or grant a relief not sought in the pleadings. A Judge cannot adjudicate on issues which have not been raised in the pleadings. Thus, a Judge who grants a relief not sought in the pleadings acts ultra petita - Monthy v Esparon [2012] SLR 104. [26] It follows that the sums of money awarded for contributory negligence were uncalled for for want of pleadings to that effect. In similar vein, it was not fair to order Mr. Amade to pay 20% of the claimed sum for "contributory negligence" when he was not party to the - case! Indeed, he was not even called to testify as a witness in the case! In essence, he was condemned unheard. [27] When all is said and done, I allow the appeal with costs. The issue raised in the cross appeal does not really arise in view of the comments made above as regards procedure and pleadings. J. Msoffe (J. A) Signed, dated and delivered at Palais de Justice, lie du Port on 17 April 2015 - 9