Challenge Wisdom Pawandwa Mukamba T/a Mukamba Architectural Practice v Christ Embassy Zimbabwe

HH 270-2011
                                                                               HC 1172/08
CHALLENGE WISDOM PAWANDWA MUKAMBA
T/a MUKAMBA ARCHITECTURAL PRACTICE
versus
CHRIST EMBASSY ZIMBABWE


HIGH COURT OF ZIMBABWE
UCHENA J
HARARE, 20, 21, 22 January, 2, 3, 4, 5 March, 28, April, 15, 29, May, 31 August, 7
September, 2, 3, 4,5, November 2009, 18, 19, 21 October, 11 November 2010, 2
January, 12 May, and 16 November 2011


Civil Trial

Mr M Foroma for the Plaintiff
Mr G. Machingambi for the Defendant


       UCHENA J: The plaintiff who runs an Architectural Practice sued the defendant,
a Church for fees he claimed he earned when he provided architectural services in
designing the defendants, church building.
       The plaintiff was initially contracted by one Huni a member of the defendant’s
church in his personal capacity to design drawings of the defendant’s proposed church
building for purposes of persuading the City of Harare to sell a church stand to the
defendant. He performed that task to Huni’s expectation, and was paid the agreed fee.
The defendant as a result got a church stand from City of Harare. The defendant then
approached the, plaintiff in May 2007, through Mr Anthony Parehwa who was the
chairman of its Building Committee. The plaintiff claims they agreed on a contract
through which he would render to the defendant architectural services, and eventually
rendered such services to final design stage, which entitles him to 7% of 25% of the cost
of the defendants’ building’s construction costs. The defendant says it did not enter into a
contract as they were still waiting for the plaintiff to furnish them with the fees he was
going to charge for his services.


The plaintiff claimed:
    1. $170 341 795 000,00 being capital
2
HH 270-2011
HC 1172/08

    2. $170 341 795 000,00 being interest at ZABG”s overdraft lending rates,
    3. interest on the sum of $340 683 590 000,00 at ZAB’s overdraft lending rate from
        time to time in force with effect from the date of judgment to date of payment.
    4. Costs of suit.


       At the beginning of the trial the plaintiff applied to amend its prayer by the
deletion of the above and its substitution by a claim of US$210 000,00. The application
for an amendment was opposed, but the parties agreed that the trial should proceed
without a decision being pronounced on the amendment as the parties wanted time to
research and be able to make submissions on case law on whether or not a claim for
services rendered on the basis of a contract in Zimbabwe dollars can be amended into one
in United States dollars.
       Mr Foroma for the plaintiff then called Mr Mukamba who testified for the
plaintiff to the following effect. He was initially contracted by Mr Huni to prepare
drawings for the defendant’s church for purposes of persuading Harare City Council to
allocate the defendant a stand. He and Mr Huni performed their respective obligations
leading to the defendant being allocated a stand. He was later approached by Mr Parehwa
together with other Architects and asked to bid for a contract to provide architectural
services for the defendant’s proposed church building in Harare. He and the other
Architects advised the defendant’s Building Committee that their regulations do not
allow them to bid for architectural work. The defendant’s Building Committee chairman
Mr Parehwa phoned him on 16 May 2007 to advise him that they had chosen him to be
the Architect for the defendant’s proposed church building. The following day he
attended a meeting with the defendant’s Building Committee at the defendant’s offices,
were the defendant’s Building Committee advised him of the defendant’s intention to
engage him and the need for him to state his proposed fee, to be included in the contract
agreement the defendant was to prepare. He advised them that architect’s are not allowed
to charge a specified fee but a percentage of the construction cost. The building
committee then agreed with him on 7% of the construction cost. They congratulated him,
after which Mr Parehwa took him to Pastor Ruth Musarurwa, and introduced him as the
                                                                                        3
                                                                              HH 270-2011
                                                                               HC 1172/08

architect for the church’s building project. Pastor Musarurwa congratulated him and
impressed on him the urgency of the project, after which he left.
       The building Committee instructed him that they wanted a church building for
10000 people. He advised the Committee that, such a project would need, structural
engineers, civil engineers, quantity surveyors, electrical engineers and mechanical
engineers, for the work to be neatly and diligently coordinated. The committee advised
him that they wanted the church up by the end of the year. He advised them that, that was
not possible, but they insisted saying that God would provide. He believed that was their
way of expressing the urgency but still insisted such a project could not, by world
standards, be completed in less than a year.
       He said, the second paragraph, of the defendant’s letter of intent, was over taken,
by events, as he at the meeting, explained, to the defendant’s, building committee, that
architects, do not, charge a specified fee, but a percentage, of the cost of the building. He
therefore explained to them the statutory requirements for engagement which they
accepted. He told them his fees would be 7 % of the cost of the building. He estimated
the building costs to be US$10 000 000. The agreement was therefore the standard
architect’s agreement on the blue forms. The chairman then instructed him to proceed to
the next stage, the preparation of the design brief. He summed up by saying a verbal
agreement was entered into though it was not followed by a written agreement signed by
both parties. He forwarded the agreement forms to the defendant who did not send back
to him a signed agreement.
       He said he was requested by the defendant to arrange for a project definition
workshop. He said that could not have been possible if they had not yet entered into a
contract. He said the project, had began. He thus on the day following the meeting he had
with the Building Committee, wrote to the Committee informing it of his acceptance of
the verbal agreement. He then prepared a design brief which was signed by Mr Parehwa,
Mr Shumba of the Building Committee and by Pastor Ruth Musarurwa. He said the
design brief is like a reference document with details like how many toilets, offices etc
are required. He held 10-15 meetings with the defendant’s building committee before he
produced the final design brief, which was signed by the church on 3 July 2007. He then
4
HH 270-2011
HC 1172/08

proceeded to the preliminary design stage, where he prepared design sketches, feasibility
studies and operations like calculating the number of people in the congregation and
technical details. He during this stage recommended a church building which could
accommodate 6000 people. He further recommended increasing the number of floors
upwards or downwards if the church insisted on a sitting capacity of 10 000 people. The
church settled for a 7500 capacity church. He then revisited the designs by adding one
upper gallery and fine tuned the rest of the design. He told the court that the preliminary
design stage and final design stage overlap to a level when other consultants come on
board. He then required the input of structural engineers, civil engineers, electrical
engineers, mechanical engineers and quantity surveyors. These had to be engaged
directly by the client, but, the architect makes recommendations if the client does not
have specific people for such appointments. He said in making these recommendations he
was discharging part of his mandate. He recommended Mahachi and Gwaze for quantity
surveyors, and Overup and Partners for electrical and mechanical engineers. He however
did not get their input as they were not formally appointed by the defendant. Defendant
requested that they give a fee proposal based on the design he had produced, so they
could calculate the fees charged by the consultants. This was done and forwarded to the
defendant together with their conditions of engagement. Defendant did not advise him of
its decision on the presentations he had made. He on 25 October 2008 presented his fee
claim invoice based on the quantity surveyor’s estimates. His fee claim was based on
25% of the quantity surveyor’s estimates. He said the quantity surveyor had estimated a
cost of US$12 million equivalent to Z$8.4 trillion.
       When asked to tell the court the work he did, he said he researched on similar
projects, in-coperating the client’s requirements, considering the site conditions,
designing a structure that conforms, with local authority by laws and a structure that is
ecstatically pleasing, functional and conforms, with safety regulations for a place of
public assembly.
He produced exhibit 2 (a) to (g) as proof that he did that work. He said it took him four
month of dedicated work to produce these diagrams. He said exhibit 2 (a) to (g)
represents final designs. He to arrive at this stage had worked on this project with the
                                                                                        5
                                                                              HH 270-2011
                                                                               HC 1172/08

defendant’s approval from end of May to November 2007. This he said completed the
initial stage of his mandate for which he was entitled to claim 7% of 25% of the
construction costs of the project. He said according to the quantity surveyor the
construction was to cost US$12 000 000-00, or an equivalent amount of Z$8.4 trillion.
He billed the defendant in the sum of Z$$170 341 795 000,00 which is 7% of 25% of
Z8.4 trillion. He said the referral to US dollars was merely for giving the cost in a stable
currency as architects were then not allowed to charge in foreign currency. They were
then only allowed to transact in Zimbabwean dollars.
        He forwarded his claim to the defendant’s building committee and waited for
payment. He was given several excuses ie that the pastor was out of the country or was
busy. He despite being patient hoping that he would eventually be paid, did not get paid
leading to his writing a letter of complaint to the chairman of the building committee
copied, to pastor Musarurwa. Mr Parehwa the chairman of the building committee, took
offence and threatened that plaintiff would not be paid unless he withdrew the letter of
complaint copied to the pastor. The plaintiff believing that he was entitled to raise the
complaint refused to withdraw the letter, leading to his not being paid and to this
litigation.
        He denied the defendant’s allegation that he was to render free services for the
design brief and sketch plans, pointing that Architects are prohibited by statute from
rendering free services unless, one first seeks the approval of the Architect’s Council.
        He denied receiving the letter on page 9 of exhibit 4, the defendant’s bundle of
documents, in which the defendant insisted on being given his fees in definite figures.
        The plaintiff was, for several days, skillfully and extensively cross examined by
Mr Machingambi for the defendant. He during cross examination told the court that, he
prepared for Mr Huni plans with layouts and perspective views though that was not
necessary for the purposes for which the plans were then required. He said Mr Huni
required them so that Council would see what the church building would look like. He
conceded that paragraph two of the letter of intent he received from the defendant’s
building committee on the day he says they verbally agreed to engage him, requested him
to submit his proposed fee and terms of payment. He agreed that in the last paragraph he
6
HH 270-2011
HC 1172/08

was requested to arrange for a project definition workshop for an exhaustive scope of the
project. He said the fact that they had entered into a contract is proved by his sending to
the defendant a letter of acceptance dated 31 May 2007. He said temporal structures in
preparation for the project were built under his supervision and were part of his mandate.
He denied receiving the defendant’s letter dated 5 June 2007 in which the defendant
indicated it required a definite figure for the contract to come into existence as the project
was a public one, for which the terms of engagement had to be clear for a contract to be
accepted and signed. He conceded that the contract was not concluded in terms of the
memorandum of agreement. He does not know whether or not the defendant had signed
the memorandum of agreement. He conceded that the memorandum of agreement is part
of the conditions of engagement and that it was important for the conclusion of the
contract but that they sometimes work on trust and verbal assurances in anticipation that
the contract will be signed. He conceded he did not have a statutory legal support to bill
in US dollars. He said he did not give the defendant budgetary figures because he was not
asked to do so. He admitted that section 13 (2) of the Architect’s regulations provides that
an architect should advise the client of fees before he starts working for the client. He
agreed that if an architect does work without the client’s acceptance of the fees
chargeable there will be no contract, but maintained that he had informed the defendant
that his fees was 7% of the building’s cost of construction and the defendant had verbally
agreed to that. He admitted that no Electrical, Structural, Mechanical Engineers or
Quantity Surveyors made any input as they were never appointed He thus conceded that
the cost estimates do not include the work of other experts. He admitted that he asked for
the Quantity Surveyors estimates and briefed him through his drawings. He admitted that
the input of other experts affects the cost. He admitted using the gross floor area of 10
000m2 to estimate costs but conceded that the defendant had not agreed to that. He also
conceded that Mahachi Gwaze Quantity Surveyors in their letter on page 78 of exhibit 1
the plaintiff’s bundle of documents pointed out that the method used to arrive at the
estimated costs was not accurate. He agreed that the Quantity Surveyor gave the
estimated cost of US$12 Million as the equivalent of 8.4 trillion Zimbabwe dollars, but
said he does not know how he calculated it. He however maintained that his calculation
                                                                                       7
                                                                             HH 270-2011
                                                                              HC 1172/08

of the fees he claimed was correct and accurate. He did not dispute that the official
exchange rate was US$1.00 to Z$30 000-00 He conceded that at the time he billed the
defendant architects were not licensed to charge in US dollars, but they are now licensed
to do so. He concedes that the Quantity Surveyor said the cost appears unrealistic. He
said the Quantity Surveyor needed more information for him to be able to give an
accurate estimate. He also agreed that the Quantity Surveyor said the building could be as
cheap as the defendant wanted it to be. When asked why he did not follow the Quantity
Surveyor’s request for more information for the estimates to be accurate, said in his
opinion the estimate was adequate to be used as it was. He maintained that section 14 (3)
(b) of Architects Regulations allows them to use estimates. He conceded that the
diagrams produced as exhibit 2 (a) to (g) do not have dimensions. He conceded that the
contract in issue was entered into after 30 May 2007, but his diagrams refer to April
2006. He disputed the defendant’s allegation that the drawings he produced in court were
those he prepared for Mr Huni in 2006. He conceded that the cost of the building will
never be known as the project is not going to be completed, but said section 14 (3) (b) 1-3
of the Architects conditions of engagement provides for such a situation.
       Under reexamination the plaintiff said the meeting where the plaintiff and other
architects were asked to bid for the work took place on 16 May 2007. He also said on 3
July 2007 the defendants signed the program of works signifying the existence of the
contract. He denied receiving a letter from defendant dated 5 June 2007. He does not
know whether or not the memorandum of agreement was signed by the defendant, but it
was not returned to him. He said he worked on the design brief with the defendant’s Mr
Parehwa and sister Tariro over several weeks. He said the design brief is the same as
project definition workshop. He said an architect does not get involved in such work
before engagement as it is part of the overall work as indicated in the 3 rd schedule of the
memorandum of agreement. He said the estimated cost by a Quantity Surveyor must
consider, Civil works structural works, and any other works which form an integral part
of the building or project. As an architect he can do his own estimate of costs. He infact
did his own estimates and arrived at an estimate of approximately US$ 14 million. He did
so before the dispute arose. He said there is no direct relationship between a US$ estimate
8
HH 270-2011
HC 1172/08

and a Z$ estimate as each is based on quotations from local and foreign suppliers of the
building materials. He said Mr Parehwa initially had no problem with the bill and had
promised it would be paid once signed by the Pastor. He later said Mr Parehwa on
coming back from Nigeria where he had gone with the Pastor to source funds, said the
cost was too much for one person. He was however not stopped from continuing with the
work, but stopped on his own due to none payment. Plaintiff eventual wrote a letter of
complaint copied to the Pastor over none payments. The letter offended Parehwa who felt
it victimized him. He demanded that it be withdrawn so that it would not expose him on
the delays he had caused on the payment of the bill and be replaced by a toned down one,
if the plaintiff wanted to be paid. He refused to retract the letter as it represented the truth
of what had happened. He said while a written agreement is preferable in architecture a
verbal agreement is binding. He said when he recommended other professionals the
defendant asked that they indicate their proposed fees before the agreements could be
finalised.
        Under re-cross examination on Exhibit 3 the plaintiff’s delivery book which was
produced during re-examination on condition the defendant’s counsel would be allowed
to cross examine the plaintiff on it the plaintiff said the following. That the document
labeled proposal which was on work in progress, dated 28/6/07 was not signed for. He
however insisted that the documents were delivered as the delivery book could have been
left at the office. He admitted that the letter on page 52 of the plaintiff’s bundle of
documents was not signed for in exhibit 3. The same applies to the letter of 10/7/09
referred to on page 71. The plaintiff then said not all letters were being entered in the
delivery book, as some were being delivered without being recorded in the delivery book.
        The plaintiff’s evidence established that he did not fully comply with the
architect’s conditions of engagement, as he should not have started work before the
contract document was signed, but said at times one can work on trust or verbal
assurances. This tends to show that the plaintiff appreciates that he did not act diligently
in this case. He admitted using a gross floor area of 10 000 squire meters for costing the
construction of the building, without the defendant’s consent .This seriously
compromises the total building cost, which had already been put in doubt by the quantity
                                                                                        9
                                                                              HH 270-2011
                                                                               HC 1172/08

surveyors comments on the accuracy of the estimate he had given after working with
inadequate information. The plaintiff also agreed that costs can never be accurate now
that the work is not going to be completed. He personally estimated the construction of
the church building at US$ 10 million, but later changed to US$ 14 Million. He admitted
that the factors complained of by the quantity surveyor had not been corrected. The above
concessions makes it difficult to find that the fees claimed by the plaintiff, are justified
This, is further complicated, by his admitting that the drawings and diagrams exhibit 2 (a)
to (g), had errors. The errors are not consistent with his claim that he had put in four to
five months of serious work into their preparation. In the result it can not be said that the
plaintiff proved that the defendant owes him the amount claimed in respect of services
rendered.
       The defendant called Antony Taengwa Parehwa as its only defence wittiness.
Parehwa told the court that he is the chairman of the defendant’s building committee. He
has been a civil Engineer since 1990. He holds several certificates and diplomas in that
field. He is currently studying for a Masters degree in Business Administration with the
University of South Queensland Australia. He also said he is studying for the same
Masters degree with Zimbabwe Open University. He said his committee’s mandate is to
recommend to the Pastor and the church on the construction of the proposed church
building. He admits his committee met the plaintiff in May 2007, to obtain from him the
cost of his services so that they could recommend his appointment to the pastor.
       They asked the defendant to give them his fees and to do a project definition
workshop. He admits receiving the plaintiff’s notional brief and final brief, but says these
were done so that the plaintiff could give them a quotation for his services. He said the
final brief originated from his committee as the church’s wish list of what was to be in
the church building. The plaintiff then prepared a final brief from it and he and the pastor
signed it to confirm their wish list, as plaintiff had requested for their signatures. He
conceded that the plaintiff prepared the programme of works without any input from his
committee, but said the plaintiff needed it so that he could budget his time for purposes of
giving them a quotation of his fees. He said they wrote the letter of intent on page 7 of
exhibit 4 so that they could get the proposed fee and terms of payment and to intimate
10
HH 270-2011
HC 1172/08

and discuss everything about the project. He acknowledged receipt of the plaintiff’s letter
of acceptance but said it did not conclude a contract between the parties as they had in
their letter of intent informed him that they wanted him to give them the actual fee he was
to charge for the church building. He said his committee’s mandate was limited to
negotiating the fee after which it would recommend the appointment of the plaintiff to the
Pastor who would then enter into the contract with the plaintiff. He said he responded to
the plaintiff’s letter of acceptance by his letter dated 5 June 2007 in which he reiterated
that the contract could only come into existence if he gave them his actual fees for the
services he was going to render to the defendant. He said the plaintiff did not hold a
project definition workshop with the building committee at which they would have
discussed with him the type of church building they wanted which had a bearing on the
cost of the project and his fees.
       On the drawings presented in evidence by the plaintiff he said they had no
dimension or key to explain them. He also said there having been no definition workshop
it was not possible for the plaintiff to proceed, into drawings without having discussed
the type of church the defendant, wanted, and the attendant details. He denied the
plaintiff’s allegation that the defendant had chosen other experts for the project. He said
the defendant did not receive the letters on the appointment of other contractors. He said
the estimates of the Quantity Surveyor where not reliable and the defendant had not
appointed him. He said the estimate is based on 10 000 square meters, which the
defendant never gave to the plaintiff, as the defendant had only told the plaintiff that they
wanted a church with a sitting capacity of 10 000 people. They were to be quoted in
Zimbabwe dollars as they had not discussed the use of foreign currency. He denied
telling the plaintiff to go ahead with performing the duties of Architect as they had not
yet concluded the contract. He was shocked when he received the plaintiff’s invoice. He
denied discussing quantities to be used in the building with the quantity surveyor and the
plaintiff. He denied, discussing, the drawings, with the plaintiff nor receiving them from
him. He does not know the signature of the recipient of documents recorded in exhibit 3.
He said the drawings could not have been used by anyone as they do not have
dimensions, and do not refer to any site. He also said exhibit 2 (a) to 2 (c)’s scale of 1 is
                                                                                       11
                                                                              HH 270-2011
                                                                               HC 1172/08

to 1 is grossly erroneous. He said the scale of 1 is to 1 means the drawing on paper should
be of the same size as the actual building which can not be possible. He maintained that
there are no dimensions to exhibit 2 (a) to 2 (g). He said the drawings, are dated April
2006, long before they ever discussed doing any business with the plaintiff. He said in
view of the fact that there is no site plan or stand number on the drawings they could be
the ones the plaintiff drew for David Huni in 2006 before the defendant had acquired a
stand. He denied ever agreeing with the plaintiff on the interest rate to be used or legal
costs to be charged in the case of a dispute between the parties. He maintained that a
contract had not yet been entered into.
       He under cross examination admitted that the plaintiff’s letters dated, 30/ 5/07,
1/6/07, 8/6/07, 26/6/07, 19/7/07, 16/8/07, 19/8/07, 18/9/07 and 25/10.07, were addressed
to him , but denied receiving some of them. He said those which he received were
handed to him by plaintiff as they had not discussed the means of communication which
should have been discussed at the definition workshop. He acknowledged receipt of the
letters of 28/10/07, 3/7/08, 25/9/07, 31/10/07, 11/1/08 and 11/2/08, directly from the
plaintiff and not through exhibit 3. He admitted knowledge of Tariro Mutepare whose
signature seems to be on signed exhibit 3, whom he said is a church member. He however
said on the last page of exh 3 the receptionist said she could not sign on his behalf. He
said he did not receive the letter of 19/7/07 though its in defendant’s bundle of
documents. He said it was given to his lawyers as part of further particulars. He admitted
receiving the letter on page 68 of exhibit 1, and having a meeting with plaintiff, and says
that’s when he brought to him a list of the building areas in terms of their functions, after
which the plaintiff told him he would with that information be able to give them the
quotation they required. He denied that there was a clerk of works called Sister Tariro in
spite of her having been mentioned in various documents by the plaintiff’s bundle of
documents. He said the program of works was not actual but a proposal as proved by its
title and the accompanying letter. He denied telling plaintiff that the church building
should be up by November 2007, and that when told by plaintiff that was not possible his
committee said God would provide. He said he had previously been given quotations by
Architects who gave their fees in actual figures. He gave an example of Architect Vernon
12
HH 270-2011
HC 1172/08

Mwamuka, in respect of the building of Time Bank’s Head Quarters. He admitted that
when he wrote the letter of intent Mr Mukamba had not yet agreed to be their project
Architect. He agreed that an agreement can be oral and that they were in the process of
drafting the agreement. He also agreed that for one to start drafting an agreement the
parties will already have agreed. He denied introducing the plaintiff to the pastor, but
ended up saying he does not recall everything he did.. He admitted that plaintiff had told
him that fees would be as per the Council of Architects in Zimbabwe, but said they had
not accepted that position, and had told plaintiff they wanted his fees in actual figures not
percentages. He said the plaintiff had promised to try and give them his quotation in the
form they wanted it. He later admitted that the Architect’s Regulations require that fees
be quoted in percentages and that the plaintiff’s letter of the day after the meeting was
referring to fees in percentages. He pointed out the irregularities on the alleged
appointment of the Quantity Surveyor by referring to the Quantity Surveyor’s letter of 18
October 2007, Plaintiff’s letter of 25/10/07 seeking the appointment of the Quantity
Surveyor, and plaintiff’s letter of 30 October 2007 claiming fees calculated on the basis
of the Quantity Surveyor’s letter of 18 October 2007 written before his appointment was
sought. Asked why he did not respond to the letters dated 18 and 25 October he said they
did not respond because over and above these letters they had also been on 30 October
billed by plaintiff, an Architect they had not appointed. He received the letter dated 19
September on 25 October 2007. Commenting on page 14 of exhibit 4 he agreed to having
attended a meeting with plaintiff and sister Tariro a works clerk, but said the plaintiff was
with the lady, and the meeting was at the plaintiff’s office. On the definition workshop,
he said the Architect’s Regulations in section 10 (3) require an Architect to hold such a
workshop with client to obtain his requirements and scope of work to be done. He said
such a workshop would have informed the plaintiff of the following, the site at which the
church was to be built, the church’s practices, the type of church they wanted hall or
conference centre type, materials to be used, the type of finishes required, the churches
budget, procurement methods, human resources, whether the structure would be
prefabricated or made locally, which would have enabled the plaintiff to calculate the
fees he was to charge. When it was put to him that he obtained the information he
                                                                                       13
                                                                              HH 270-2011
                                                                               HC 1172/08

required from the schedule of accommodation they gave him he said that could not be a
substitute for a definition workshop. When it was put to him that he requested the
plaintiff to submit his fee claim he denied ever making such a request to the plaintiff.
       Under re-examination Mr Parehwa identified page 22 of exhibit 4 as the 2000
Edition of the recommended Architect Memorandum of Agreement he received from the
plaintiff. He said it was not signed by both parties. He said exhibit 2 (a) to 2(g) are
sketch drawings which depict pictures of an auditorium. Commenting on page 54 of
exhibit one he said he does not know what plaintiff meant when he wrote “site not up”
and “building to be up by November”, as there was no agreement with the plaintiff for
the church building to be up by November. He pointed out that according to exh 4 p 14
the building project was to be completed by 22/11/08. Though no such agreement had
been entered into between the plaintiff who wrote the letter, and the defendant. He said
he did not attend the meeting mentioned on page 53 of exhibit I, and does not know the
individuals there mentioned. Commenting on a letter from Delta quarries he said Mr Huni
was acting subject to the direction of the church but on his own.
       The evidence of Mr Parehwa is corroborated by the plaintiff’s on the following
aspects;
   1. That there was no agreement between the parties on the building being of 10 000
       squire meters.
   2. That the quantity surveyor whose estimates the plaintiff used had not been
       appointed by the defendant
   3. That the diagrams exhibit 2 (a) to (c) had a scale of 1 is to 1.
   4. That the drawings and diagrams exhibit 2 (a) to (g) did not relate to the
       defendant’s church site and were dated April 2006, a period before the defendant
       discussed the possibility of contracting the plaintiff with him.
   5. That the estimates prepared by the quantity surveyor had shortcomings.
       The above supports the defendant’s challenge to the amount claimed by the
defendant. The defendant’s wittiness was not a perfect wittiness. He at times became
unnecessarily argumentative, and denied things which he should not have admitted. In
spite of these deficiencies his testimony on whether or not the parties had concluded a
14
HH 270-2011
HC 1172/08

contract is more probable than the plaintiff’s if considered in light of the communication
exchanged by the parties.
       The issues which were referred to trial are;
   1. Whether Defendant entered into an agreement with Plaintiff in terms of which
       Defendant engaged Plaintiff as the Architect for the planning design and erection
       of defendant’s church building.
   2. What where the terms of the agreement?
   3. Whether Defendant owes Plaintiff the amount claimed in respect of services
       rendered?
   4. Whether Plaintiff is entitled to demand interest at the ZABG overdraft lending
       rate on the amount outstanding?


The issues will be considered on the evidence led as supported by documental evidence.




The Agreement


       The plaintiff’s evidence is that he entered into a verbal agreement with the
defendant’s building committee on 30 May 2007. He said he was at that meeting given a
prewritten letter of intent to appoint him as the plaintiff’s project’s Architect. He said that
letter had been overtaken by the subsequent verbal agreement when it was handed over to
him. He thus on 1 June 2007 wrote to the defendant accepting his appointment by it as its
project’s Architect.
       The defendant disputes the plaintiff’s allegation that they entered into a verbal
agreement, but states that it on 30 May 2007 wrote a conditional letter of intent to the
plaintiff informing him that it intended to appoint him as its project’s Architect, but he
had to before such appointment give them his fees in definite figures. The defendant
admits receiving the plaintiff’s letter of acceptance but responded to it by its letter of 5
June 2007.
                                                                                         15
                                                                                HH 270-2011
                                                                                 HC 1172/08

       The intention of the parties to contract is not in doubt, but the issue is whether or
not they entered into a contract without the plaintiff having to comply with the
defendant’s letter of intent. The letter of intent in exhibit 1 page 48 reads as follows;
       “Following our recent discussion we are pleased to confirm our intention to
       engage you as Architect for the design of our church building on our site being
       Stand Number 18094, STL Harare.

       We request you to submit to us your proposed fee and terms of payment so that
       these may be considered for incorporation into the main agreement which is
       currently being drafted.

       More details on your engagement will be made available in the contract of
       engagement. In the mean while please arrange for a project definition workshop
       for an exhaustive exchange on the scope of the project.”
       The letter is headed “Re: Letter of Intent”. The heading and paragraph 1 of the
letter tends to show that what was being communicated to the plaintiff was an intention to
engage him after the conditions mentioned in paragraph two had been met. The fact that
the letter conveyed an intention to engage, and not an engagement, seems to have been
appreciated by the plaintiff who had to rely on a verbal agreement he says was entered
after the letter had been written and when he had a meeting with the building committee
on 30 May 2007. This leaves the plaintiff with the onus to prove that the letter was
overtaken by subsequent events. That places the plaintiff in a situation where he has to
disprove written testimony of what the defendant asked him to do in writing, with what
he alleges the defendant subsequently verbally agreed to orally. The scale of justice starts
heavily tilted towards what is written, and admitted by the plaintiff. It is generally
difficult to challenge a written document whose contains are beyond dispute with an
alleged subsequent verbal alteration which is strenuously disputed by the other party. I
will thus have to closely examine the other documental exhibits the plaintiff alleges,
proves the alteration of the written position.
       The plaintiff says because of his discussion and subsequent agreement with the
defendant’s building committee on 30 May 2007, he wrote a letter of acceptance to the
defendant on 1 June 2007. The letter which is on page 49 of exhibit 1 reads;
       “Reference is made to your letter of intent dated 30 May 2007. Mukamba
       Architectural Practice gladly accepts the commission to undertake architectural
       services for the abovementioned project.
16
HH 270-2011
HC 1172/08


       As previously communicated to you our conditions of engagement and scale of
       fees will be those stipulated by the Architects council of Zimbabwe. A copy of the
       agreement form has already been issued to yourselves for perusal and
       familiarisation.

       We also wish to advise that work on the temporary office structures and boundary
       wall are in progress. We have also started preparing the design brief for your final
       comments and adoption. Also be advised that preliminary feasibility studies have
       began.

       We thank you in anticipation of a mutually beneficial professional and spiritual
       relationship”

       The plaintiff’s letter is clearly headed ‘Letter of acceptance.” If there was a
definite offer of engagement there would have been no doubt that it had been accepted.
Mr Foroma for the plaintiff argued that the plaintiff was responding to both the letter of
intent and the subsequent verbal agreement reached at his meeting with the defendant’s
building committee on 30 May 2007. Mr Machingambi for the defendant, on the other
hand argued that there was no verbal agreement and that the letter of acceptance, shows
there was a common mistake between the parties as to what they were communicating to
each other and therefore no contract came into existence.
       An examination of the plaintiff’s letter of acceptance reveals that it was a
response to the defendant’s letter of intent. It specifically says, ‘Reference is made to
your letter of intent dated 30 May 2007.” It then refers to previous communication in
which defendant had advised the plaintiff of their condition of engagement being based
on a scale of fees. There is no reference in the letter to a meeting of the 30 th May having
resulted in a verbal agreement. If it was so it would have been expected that the plaintiff
in his letter written a day after such an important meeting would have referred to its
having resolved the issue of the plaintiff’s fees instead of referring to generalized
previous communication In the result I would find that the plaintiff’s allegation that there
was a verbal agreement is improbable, while the defendant’s claim that they were waiting
for the plaintiff to give them his fees so that they would enter into a contract with him is
probable. The reference to the building of a temporary structure and boundary wall, while
                                                                                       17
                                                                              HH 270-2011
                                                                               HC 1172/08

tending to show a contract had been concluded, is denied by the defendant who said it
responded to the letter of acceptance by their letter of 5 June 2007 which reads as
follows;
       “We acknowledge receiving your letter of 1 June 2007. In our letter of 30 May
       2007 we indicated to you that the church requires a more definite figure of your
       design fees to enable the committee to make a recommendation to the whole
       church.

       We already supplied you with our requirements in terms of the total
       accommodation required. Please note that this is a public project for which the
       terms of engagement have to be very clear for a contract to be accepted and
       signed. Once you have given us your proposed fees and terms of payment, we can
       then proceed to finalise the agreement given to us”.

       This letter puts beyond doubt that the defendant wanted the fees in definite
figures, and payment terms for the consideration of the church. It makes it clear that if
that was not done the contract documents they had been given would not be signed. I
appreciate that the plaintiff said he did not receive this letter. The letter is however
consistent with the defendant’s conduct and evidence in court. It did not sign the
agreement given to it by the plaintiff. If it had verbally agreed as suggested by the
plaintiff, and was willing to pay as testified by the plaintiff until he wrote the offending
letter, why would the defendant not have signed the agreement. The probabilities favour
the defendant. The defendant’s insistence on definite figures is confirmed by the plaintiff
when he said the defendant refused to conclude contracts with other consultants as it
insisted on being given actual figures. It seems to me that the defendant had resolved to
only do business with those who would give it quotations of their fees in actual figures.
Its position remains stronger than the plaintiff’s.
       The plaintiff produced other exhibits in support of its position. It is therefore
necessary for purposes of clarifying the court’s view of the position from the three initial
letters, to consider the additional exhibits. These are the design brief, proposed
programme of works, letters on the appointment of other consultants, the drawings and
diagrams exhibit 2 (a) to (g). An analysis of these documents should prop up or rest the
party’s respective positions.
18
HH 270-2011
HC 1172/08

The design brief was forwarded to the defendant accompanied by a letter dated 8 June
2007. The letter reads as follows;
       “Please find enclosed a notional design brief for your perusal and comments;

       In the design of places of worship each individual diocese or sect has guidelines
       for its own church but local regulations on places of assembly should always be
       observed.

       We have made provision for a church with a sitting capacity of about 6 000
       people. Kindly note that due to the size of the site of the stand a higher sitting
       capacity will require upper level galleries and the reduction in the building
       coverage to accommodate additional parking space for the increased capacity.

       The options of having underground parking or high level parking could be
       explored but the marginal increase in parking capacity may not justify the high
       costs of construction. The need to afford the complex with adequate parking for a
       large building capacity will also impact on green and landscaped spaces.

       The resultant church capacity and the number of permanent staff members to
       occupy the offices will also affect the overall design and configuration of the
       church. We have provisionally included a sketch drawing showing the extent
       covered by a 6 000 capacity church building in relation to the parking bays for
       better appreciation.

       We kindly request feed back on the final brief at your earliest convenience”

       The second paragraph of the letter exhibit 1 page 52 gives the impression that the
design of the church to be built had not yet been discussed and agreed. If it had it would
not have been necessary for the plaintiff to bring this issue to the attention of the
defendant. This paragraph therefore supports the defendant’s evidence that this issue was
still to be discussed. This is further corroborated by the plaintiff’s evidence to the effect
that the defendant wanted a building that could accommodate 10 000 people.
       Paragraph three reveals that the sitting capacity of the church was still to be
agreed. This again favours the defendant’s position that they had in their pre-contract
discussions told the plaintiff they wanted a 10 000 capacity church. If a contract had been
finalised it would have been impossible for the plaintiff to unilateral change the sitting
capacity to 6 000. It would also not have been possible to negotiate the sitting capacity if
                                                                                          19
                                                                                 HH 270-2011
                                                                                  HC 1172/08

the contract had been finalised. In his evidence the plaintiff wavered between a sitting
capacity of 6 000 and 8 500 which the defendant said had not been agreed upon.
       The fourth paragraph talks about options of under ground and upper level parking
again signifying that parties had not yet finalised their agreement. These are expected to
have been in the description of the designs the plaintiff was to draw if the agreement had
been finalised. A contract could not have been concluded without the correct identity of
the thing on which the contract of service was to be based.
       The fifth paragraph talks of the resultant church which was obviously to be settled
on using the information given in the preceding paragraphs. That again supports the fact
that an agreement was still to be concluded as vital details of the building to be designed
was not yet at hand. The defendant told the court, that they had asked for a project
definition workshop with the plaintiff were they were to discuss with him what they
wanted to be included in the building. The plaintiff said a project definition workshop
performs the same functions as a design brief for which he admitted the defendant had
given him their wish list. It seems a lot of things had to be agreed on before the plaintiff
could perform the contract he claims he had entered into with the defendants. That does
not favour his version but that of the defendant.
       It is not in dispute that the defendant signed for the design brief. It said it did so in
acceptance that its wish list had been correctly captured in the plaintiff’s design brief.
The plaintiff said it signifies acceptance of the work he had done in pursuance of the
contract. I am persuaded that the defendant’s position is consistent with the reality of the
circumstances.


       On 26 June 2007 the plaintiff wrote exhibit 1 page 68, to the defendant, a letter
which accompanied his final brief and proposed Program of Works. It reads;
       “Please find enclosed the amended design brief as per the meeting held at our
       offices on the 23rd of June 2007 and a draft proposal of the Program of Works for
       your attention.

       Please feel free to amend the proposed Program Of Works as you see fit, bearing
       in mind the scopes of work involved on a project of this nature. We feel that the
       project deserves ample time and attention to ensure a professionally and diligently
       executed product.
20
HH 270-2011
HC 1172/08


       Your timeous responses to key & pertinent issues during the course of the project
       will go a long way in the swift and successful implementation of the project. The
       appointment of consultants as proposed bellow should be addressed as a matter of
       urgency.

       We propose the appointment of the following consultants;
         a) Structural and civil Engineers
         b) Mechanical and Electrical Engineers
         c) Quantity Surveyor

       Should you require assistance in the identification of the above, we will gladly
       recommend appropriate consulting firms for the various aforementioned
       disciplines.

       We kindly request feedback at your earliest convenience.”

       This letter suggests that the parties had a meeting after the first design brief which
led the plaintiff to continue working on the final brief. The fact that there had been
meetings is confirmed by the defendant’s Pastor and Chairman of the building committee
signing the Schedule of accommodation and program of works. See exhibit 4 pages 15
and 16 in the defendants own bundle of documents, and compare with exhibit 1 page 69
and 70. If the parties had not had the meeting of the 23 rd June the defendant would have
been expected to protest and not sign the accompanying documents.
       In paragraph two the defendant was told to feel free to amend the program of
works, but chose to sign it showing its approval of it as presented by the plaintiff.
        Paragraph three deals with the way forward during the implementation of the
program of works, and the appointment of other consultants. The signing of the program
of works tends to show acceptance of the communication and the program of works. Mr
Foroma for the plaintiff submitted that this is indicative of the implementation of the
contract. Mr Machingambi for the defendant on the other hand submitted that the parties
were merely exchanging information which would enable the plaintiff to come up with
the fees they wanted to know about before they could conclude a contract with him. Both
arguments are persuasive and indicate the respective views of it by the parties. Mr
Machingambi further submitted that the parties could have been operating at a tangent,
and plaintiff could have been mistaken that they had concluded a contract while the
                                                                                       21
                                                                              HH 270-2011
                                                                               HC 1172/08

defendant believed they were in the pre contract stage and was co operating with the
plaintiff so that he could give them the required fees. This view could be possible in view
of the defendant’s letter of intent, and the lack of the required details for a contract to
have come into existence. On the other hand the plaintiff may have mistakenly believed
they had concluded a contract as he was no longer talking about their contract but was
urging the defendant to engage other consultants giving the impression that the existence
of a contract between him and the defendant was no longer an issue.
       A mistake, as to whether or not the parties have entered into a contract, occurs
where there is an apparent agreement between the parties, a case where it appears that the
parties are in agreement, but where owing to a misunderstanding of some kind or another,
no agreement has in fact been reached. The mistake must be a material or essential one
for it to vitiate the contract. The parties’ minds must not have met on the thing they were
to agree on because of the misunderstanding. In this case the first three letters exchanged
by the parties tend to show there should have been no mistake, as the parties stated what
they wanted for a contract to come into existence. The plaintiff wanted to contract using a
percentage of the total cost of building the defendant’s church. The defendant wanted the
actual fee the plaintiff was to charge for the contract to come into existence. They both
clearly stated their positions. There was at that stage no room for a mistake. The contract
could only come into existence if one of them abandoned his position and agreed with
that of the other Both parties said this did not happen as each said he stuck to his position
In the circumstances there could not have been a mistake but a yielding of position by
one of the parties. The defendant who is said to have yielded his position denied doing so
The agreement form the plaintiff gave to the defendant was never signed. It seems to me
that the plaintiff must have remained aware that the contract had not yet come into
existence. This gives strength to the defendant’s argument that it was still waiting for the
plaintiff’s fee for it to conclude a contract with him.
       The plaintiff on 19 July 2007 wrote to the defendant exhibit 1 page 71, which
reads as follows;
       “Please find enclosed preliminary design as per the approved brief.
22
HH 270-2011
HC 1172/08

       Kindly note, that due to the site constraints and the site of the stand, we managed
       to provide a total sitting capacity of about 8 500 people instead of the preferred 10
       000.

       Please study the submitted drawings and feel free to comment as appropriate.
       Also bear in mind that some of the provisions made are to enable the building to
       conform with the local authority Bye-Laws and standards.

       We also would like to inform you that at this stage, the services of other
       consultants as previously communicated to you is now critical as structural,
       mechanical electrical considerations need to be co-opted into the design.

       We kindly request feedback at your earliest convenience.”

       The first paragraph of this letter reveals that the sitting capacity of the building
had not been settled. The plaintiff was not even able to categorically state how many
people his drawings could accommodate. He talks of about 8 500 people, while
acknowledging that the defendant wanted a sitting capacity of 10 000 people. There is no
mention of his earlier suggestion of building underground or upper level parking. He also
does not say why he could not design a double story building which accommodates 10
000 people as he had earlier suggested. All this demonstrates to the defendant’s favour
that the parties were still not yet agreed as to the type and capacity of the building. The
cost of a building will obviously depend on its size, its nature, the complexity of
constructing it and the type of materials to be used. It seems the parties had not yet agreed
on these and therefore its unlikely that the parties had entered into a contract. It is
common cause that the defendant, wanted the other consultants’ actual fees, long after it
had demanded the same from the plaintiff. That tends to show that the defendant
remained adamant on its demand for the actual fees and therefore the contract did not
come into existence.


       The defendant denied ever receiving the drawings referred to in the above
paragraph. When they were produced in court Mr Parehwa who testified for the
defendant said they could have been downloaded from the internet, or be the ones the
plaintiff prepared for Mr Huni before the defendant had secured the stand on which the
church is to construct the building over which this dispute arose. He criticised the
                                                                                       23
                                                                              HH 270-2011
                                                                               HC 1172/08

drawings for having been labeled April 2006, a period before they had had any
discussions with the plaintiff. The diagrams have a scale of one is to one meaning the
building would be no bigger than it appears on paper which does not make any sense.
The diagrams and the drawings do not refer to the stand on which the building was to be
constructed. These criticisms are factual. An analysis of exhibit 2 (a) to (g) confirms
them. This seriously damages the plaintiff’s credibility, as it gives the impression that he
did not do the work for which he claims the fees for the final design stage. It also raises
the possibility of cheating especially in view of the fact that the date of the diagrams and
drawings is consistent with the period during which the plaintiff prepared drawings for
Huni on behalf of the proposed church of the defendant. The absence, of reference to, the
defendant’s stand strengthens that belief. Mr Foroma for the plaintiff submitted that the
defendant should have called Huni to testify as to whether, the drawings and diagrams are
the ones which where drawn for him. The onus was on the plaintiff to prove that he did
the work for which he claimed fees. All the defendant had to do was to rebut his
allegations. I am satisfied that the defendant has rebutted the plaintiff’s claim that he
drew those drawings and prepared diagrams for it, as they do not relate to the period
during which it had communicated with him for that purpose and does not relate to its
church’s stand
       In the result the plaintiff has failed to prove that it concluded a mandate of service
with the defendant. There is therefore no need to determine the other issues. His claim is
therefore dismissed with costs.




Messers Sawyer & Mkushi, Plaintiff’s Legal Practitioners
Messers G Machingambi Legal Practitioners, Defendant’s Legal Practitioners.