Nissan Clover LEAF Motors (Pvt) LTD V Nengo Builders (Pvt) LTD

### Preamble
1
HH 204/2013
HC 11759/2011
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NISSAN CLOVER LEAF MOTORS (PVT) LTD

versus

NENGO BUILDERS (PVT) LTD

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 11 JUNE AND 26 JUNE 2013

Ms P. Magaya, for the plaintiff

B. Diza, for the defendant

Civil Trial

MATHONSI J:	The plaintiff, an incorporation involved in the business of repairing and servicing motor vehicles, contracted the defendant, another incorporation which prides itself as the only company in Zimbabwe with the expertise to supply and fix industrial interlocking rubber tiles, to supply and fix such industrial interlocking rubber tiles at its service workshop at the corner of Robson Manyika Avenue and Julius Nyerere Street in Harare sometime in May 2010.

This followed a quotation, complete with terms and conditions, which had been given by the defendant after preliminary discussions and consultations between the parties. The defendant proceeded to supply the tiles and fix them onto the plaintiff’s workshop and was duly paid for the job a princely sum of US$27 260-29 which had been quoted. Bearly 3 months after the completion of the job, the plaintiff started experiencing problems with the tiles and called the defendant to come and rectify the problem. This was to be the trend until July 2011 when, completely frustrated and despondent, the plaintiff removed the tiles.

It then sued the defendant out of this court for payment of the sum of US$27 260-12 together with interest thereon at the prescribed rate from the date of summons to date of payment and costs of suit at the scale of legal practitioner and client. The plaintiff averred in its declaration that the material terms of the parties’ contract had been that the defendant would supply and fix industrial rubber floor tiles at the plaintiff’s workshop, the work would be done in a workmanlike and efficient manner and that the defendant had extended a 3 year warranty on the tiles and the work that was done. The plaintiff further alleged that, in breach of the contract, the defendant had failed to supply and fix quality tiles in a workmanlike and efficient manner in that the tiles had become loose sometime in October 2010 resulting in the defendant having to re-lay them as a corrective measure without success as the tiles again came apart in April 2011 and were in due course removed completely.

Although the plaintiff enjoyed a 3 year warranty which still subsisted, the defendant had, in breach of the warranty, refused to remedy the deficiency. The plaintiff therefore craved for a refund of the contract price and ancillary relief aforesaid. Having entered appearance to defend, the defendant filed a plea in which it denied that the contract between the parties was in terms of the quotation which it supplied and stated that it is the plaintiff which chose the material and approved it before it was fixed at the workshop. It also denied that the material terms of the contract were as alleged by the plaintiff insisting that “the plaintiff varied the terms after the warranty was given. They changed the quality of the tiles to be used.”

The defendant then denied any liability to the plaintiff setting the stage for the trial. The issues for trial were identified by the parties at a pre trial conference held before a Judge as:-

Whether or not the defendant breached the terms of the contract between the parties.

Whether or not the plaintiff varied the terms of the warranty.

Whether or not the plaintiff was negligent in the maintenance of the tiles.

Whether or not the plaintiff is entitled to the relief sought.

Three witnesses testified on behalf of the plaintiff namely Brighton Hlahla, Chester

Murasiki and Thomas Tapfuma all employees of the plaintiff. It was the evidence of Brighton Hlahla, the branch manager of the plaintiff’s city workshop, that he had been empowered by his head office to upgrade the workshop to spruce up the plaintiff’s image and bring it up to international standards. In that regard he had been given a budget in the region of US$25 000-00 to do so.

On a sojourn to Cotton Company of Zimbabwe Limited (Cottco) one day, while undertaking a customer visit, they had been excited by the rubber tiles that had been installed at the Cottco workshop which caused them to inquire into the issue, only to be given the name of the defendant as the erstwhile contractor which had done the job. They immediately invited the defendant to their workshop to come and measure the area, examine the set up and give a quotation to do a similar job for the plaintiff as had been achieved at Cottco.

This led to an initial quotation being given by the defendant for the supply and fix of black industrial rubber tiles as had been supplied to Cottco. As the plaintiff’s corporate colours are grey and the defendant had in their stable a range of colours for the same quality of tiles, the plaintiff elected to have grey tiles fixed to their workshop instead of black. The plaintiff did not change the material or the texture but merely the colour to suit their corporate colours. The tiles were recommended for the plaintiff’s use by the defendant after its officials had studied the plaintiff’s conditions and the purpose for which they were to be used.

Hlahla testified that the defendant then submitted a revised quotation given that the grey tiles were more expensive than the black ones initially quoted. The revised quotation dated 19 May 2010, which was approved by the plaintiff, forming the basis of the contract between the parties, was produced as an exhibit. It reads in relevant part thus:-

“4)	DURABLE

Plastige is resistant to alkalis and oils and is self extinguishing in the event of

fire, making it perfect for use in factories, workshops, warehouses and garages.

These cost – effective and durable tiles are a valuable surface for both contractors

and DIY enthusiasts. They are dimensionally stable with good thermal and

acoustic properties. All patterns are available in the interlocking style.

Warranty of three years.

Our standard range of colours are: Crown red, Irish green, Royal blue, Mushroom brown, Pastel blue, Ash-grey, Dove grey, Dark grey and black.

Maintenance free of charge.

If there is a major cleaning of workshop advice (sic) us to come and relay or we can teach the staff.

We need two week(s) to deliver and lay after receiving order.

We have done so many projects including: 1) Cottco Head Office Harare, Gokwe Branch, and Chiredzi Branch. 2) Universal Springs Workshop. 3) Baldwins Motor Centre Marondera Workshop. 4) Rusape Motor Centre.

We hope you find the above in good order and look forward to hearing from you.”

Thereafter the plaintiff placed an order on the strength of the representations made in the quotation and the defendant moved onto the site to fix the tiles.

Hlahla went on to say that at completion of the job the plaintiff paid the defendant in accordance with the agreement. In October 2010 the tiles started lifting although they had been assured by the defendant that the installation would hold for well over 10 years. They called the defendant to the workshop to exhibit the problem. The defendant acknowledged the defect which they attributed to their failure, at the time of laying the tiles, to provide sufficient spacing at the edges to allow for expansion and contraction. They then made good by providing spacing.

Soon thereafter, in January 2011, the tiles started lifting again this time in a big way forcing the defendant to return and literally re-lay them all over again. The problem however continued to resurface and each time they would call the defendant which failed to sort it out. The defendant at one stage accused the plaintiff of not looking after the tiles properly before refusing to return to rectify the situation. By July 2011 the situation was out of hand as the floor was not only unsightly but very smelly as well.

The plaintiff was forced to remove the tiles and pack them outside the workshop. They called upon the defendant to refund them what they had paid for the job, but the defendant refused. According to Hlahla the defendant gave a 3 year warranty on the quality of the tiles, the workmanship of the laying undertaken and assured the plaintiff that the tiles would not allow water to seep through.

Under cross examination Hlahla confirmed that before laying the tiles the defendant had done preparatory work involving the filling of pot holes and the levelling of the ground which he estimated to cost about $2000-00. He stated that the plaintiff was claiming a refund of all the money paid in terms of the contract because it did not derive any benefit from the work undertaken by the defendant.

Chester Murasiki is employed by the plaintiff as the branch manager of the panel beating branch and holds a Bachelor of Science Honours degree in Mechanical Engineering from the University of Zimbabwe. He was roped in during the negotiations of the contract between the parties as a person with an engineering background with the task of ascertaining if the choice of the tiles recommended by the defendant was suitable for the workshop. He confirmed the suitability of the interlocking garage tiles.

He corroborated the evidence of Hlahla and also added that at the initial negotiation stage he had been concerned with reducing expenses for the plaintiff. For that reason after receiving the defendant’s revised quotation he had addressed an email to the defendant on 29 March 2010, page 3 of exhibit 1, enquiring what it would cost for the defendant to simply lay tiles sourced by the plaintiff. He had received a response from the defendant dated 30 March 2010 which reads;-

“ Dear Chester

Good day to you too. Just to fit the tiles our labour will be USD1 000-00 plus 15% VAT to make it USD1 150-00. We will not be liable to (sic) any defects of the tiles or guarantee their quality as they are not supplied by us. Herewith the references as per request;-

Universal Spring Steel – Masvingo

Pro Fitness Gym – Harare

Cottco HQ – Harare.”

The witness stated that because the defendant would not give a guarantee in respect of the quality of tiles not supplied by them, the decision was taken to give the defendant a contract to supply and fix the tiles in order to enjoy the benefit of the 3 year warranty that came with that kind of contract.

When the tiles were lifting he had engaged the defendant on the possible cause of their failure and the defendant had in turn engaged its supplier in South Africa who gave an explanation contained in an e-mail of 26 October 2010 forwarded to the witness which reads as follows;-

“ Hie Weston

Please do not worry as this is an occurance that may occur depending on its environment. Lifting is caused usually when strong heat / direct sunlight hits the tiles. If tiles are laid wall to wall – with no room for expansion due to the heat – they will bubble. On the disappearance of the sun they will contract to their original size. Tiles do not in any way get damaged due to this. Thus it’s a natural expansion and contraction issue. The solution is to mark out the areas affected that lift, and then apply normal standard contact adhesive to this area when tiles are cold. Best time is the next morning early. If any problems persist I can gladly contact the customer for you to explain.”

It was following the explanation given to the defendant by their supplier that they called in at the workshop to work on the tiles and provide spacing on the edges. This however did not help as the problem persisted.

Murasiki stated that all that the plaintiff had done was to choose the grey colour from the range given while the quality of the tiles was chosen by the defendant. He went on to say that the smell from the tiles which led to their removal came from water that was accumulating underneath the tiles and that water got there through the edges because the tiles were lifting. In his view there were two possible explanations for the lifting namely failure to allow enough room for expansion and the quality of the tiles.

Thomas Tapfuma is the service manager of the plaintiff whose duty is to ensure that the workshop achieves its objectives, the upkeep of the workshop and general maintenance. He confirmed that the tiles were cleaned every morning with soapy water and mops as each technician was tasked with cleaning the area he worked on.

He is the one who was charged with dealing with the defendant after the whole workshop started lifting in January 2011 having taken over from Murasiki. When the tiles were eventually removed, they were tendered back to the defendant with demand for a refund. The defendant refused to comply and instead demanded a fresh order for them to solve the problem as the defendant wanted to levy more charges. He confirmed that the cost of preparing the workshop for laying the tiles was in the region of $2000-000. In fact when the tiles were removed, the floors were re-filled at a cost of about $1 900-00 although he is not sure of that figure.

The plaintiff’s case was presented very well in a simple and straight forward manner. The witnesses themselves gave a good account of themselves and the thrust of their evidence was not tainted at all under cross examination. Their case is simply that the defendant was contracted to supply and fix tiles, which exercise it undertook on the pain of a 3 year warranty for both quality and workmanship. While the warranty was still extant, the tiles failed and were then removed. The plaintiff has therefore approached the court for a refund because the attempt to enforce the warranty fell on deaf ears.

To contest that claim the defendant called 2 witnesses namely Weston Nengomasha, its managing director, and Stewart Marimo the tiler who did the job at the plaintiff’s workshop.

Nengomasha agreed with most of the evidence given on behalf of the plaintiff including the supply and fix contract concluded between the parties. He stated that the defendant had black tiles in stock and tried to discourage the plaintiff from ordering grey tiles preferring to supply black ones. This was because he felt that although grey was the same quality as the black ones, it was not suitable for use in a motor vehicle workshop because the oils, petrol and other liquids leaking from vehicles would cause a lot of dirt on a grey colour. In addition, testing vehicles on such a floor would cause visible skid marks.

The witness stated that the defendant has been in the business of tiling for 15 years and is the only company in Zimbabwe which supplies and fits interlocking rubber tiles. He had serious difficulties explaining paragraph 3 of the defendant’s plea which states that the plaintiff varied the terms of the warranty given by changing the quality of the tiles used.

This is because Nengomasha testified that the defendant did not warranty the quality of the tiles as it did not manufacture them yet in its plea it clearly accepted that it had given a warranty in respect of the quality but sought to wriggle out of that warranty by saying that the terms of the warranty were varied by the change of the quality of the tiles. He testified that the quality of grey tiles is the same as the quality of black tiles. If that is so, surely the plaintiff’s choice of the same quality of tiles but in the grey colour, a colour already in the defendant’s range of products, would not affect the warranty.

This is particularly so as the defendant supplied a revised quotation for the grey tiles in which it specifically provided a 3 year warranty. That quotation which formed the basis of the contract was not for black tiles but grey ones. It contains an unconditional warranty. It is therefore dishonest for Nengomasha to say that the warranty related only to workmanship and not the tiles supplied especially in light of the defendant’s email dated 30 March 2010 which made it clear that where the defendant did not supply the tiles it did not guarantee quality. It must follow that because the defendant supplied the tiles in this case, it guaranteed their quality.

Nengomasha went on to agree with the evidence of Murasiki that failure to allow spacing affected the circulation of air in the tiles causing them to lift. It is for that reason that they went back to rectify that anomally, a clear suggestion that at the first attempt the job had not been performed in a workmanlike manner.

He stated that the other cause for the lifting of the tiles could be their exposure to direct sunlight even as he accepted that the workshop is sitting under galvanised roofing. He also suggested that heat was coming through the galvanised sheets while stating that they had educated the plaintiff’s employees on how to clean the tiles with soapy water and mops, and they were happy that this was done properly for the first 3 months, he suspected that they were not cleaning the tiles properly and that they were using too much water after that. As a result, the water was seeping through and accumulating under the tiles.

The explanation is difficult to understand. If the plaintiff was cleaning the tiles properly and in accordance with instructions for the first 3 months, therefore improper cleaning could not have been the reason for their lifting in October 2010. Indeed improper cleaning could not have caused any subsequent lifting because the witness, by his own admission does not know how the tiles were being cleaned after the first 3 months. His claim of a fortuitous visit to the workshop when he claims that he saw a lot of water being used to clean, is simply self – servicing and unbelievable. After all, he is the one who said the tiles are both waterproof, and fireproof.

Nengomasha’s suggestion that the tiles were affected by the testing of vehicles at a speed of 180km per hour is one of several explanations that he gave for the failure of the tiles which honestly cannot be taken seriously. He just could not explain why he thinks the defendant is not bound by the 3 year warranty given. He did not give his evidence well and not only exaggerated facts but also contradicted himself in material respects. I do not accept his evidence as it was clearly not credible.

Little can be said about Stewart Marimo who appeared to have been coached on what to say. For that reason he contradicted the evidence of his employer Nengomasha in a number of instances. For instance, he claimed that the defendant only went back to rectify the job once when it is common cause that this was done on several occasions. Marimo denied that the defendant had to return to the site to provide spacing at the edges for expansion purposes and instead claimed that he was called to go and relay the tiles because the plaintiff’s employees were lifting them to clean under them and that he himself again fortuitously witnessed such aberration.

So much for the evidence of Marimo and nothing more needs to be said about it.

I now turn to resolve the issues that were placed before me for trial.

Whether the defendant breached the terms of the contract between the parties

I have already stated that the plaintiff paid for the supply and installation of tiles which, even by the defendant’s own evidence, were expected to last well over 10 years. The tiles in question were in situ for bearly 3 months. After that they started lifting and no amount of corrective work undertaken by the plaintiff could change that.

The defendant admitted that it had not done the laying of the tiles properly hence the need to return to provide spacing at the edges. If the work had been done properly in the first place there would have been no need to return to re-do the job. Unfortunately even this second attempt did not solve the problem and the defendant was forced to return to literally re-lay all the tiles. Again this did not make the problem go away until the defendant resorted to ignoring the plaintiff’s cries completely.

In the end, the plaintiff did not have the benefit of any exercise undertaken by the defendant be it the supply or the fixing of the tiles. An attempt has been made to attribute the plaintiff’s woes to the fault of the plaintiff. I have found that this evidence is completely unreliable and constitutes an effort to avoid liability and nothing more. It is my finding therefore that the defendant breached the agreement between the parties.

Whether the plaintiff varied the terms of the warranty

In my view this issue is misplaced. It is a principle of law that a warranty is given by the seller of goods or the provider of services. It is not granted by the buyer or the person who pays for services to be rendered. It is therefore inappropriate to even suggest that the plaintiff would vary the terms of a warranty which was extended by the defendant.

In the present case, there was an express warranty of 3 years. The point is made by the learned author R H Christie, Business Law in Zimbabwe, 2nd Edition, Juta & Co Ltd at p164 that;-

“ To complete the picture, a buyer who complains that the property does not measure up to an express or implied term of the contract is not seeking an aedilitian remedy but a remedy for breach of contract, his entitlement to which will depend on the general principles applicable to contractual remedies. Bearing this in mind, draftsmen of contracts of sale often include express terms. ( traditionally called warranties) covering matters which are also covered, or doubtfully on inadequately covered, or not covered at all by the aedilitian remedies, in order to give the buyer greater choice and greater certainty of protection.”

In my view, the defendant included, in the contract of the parties ,that the tiles it supplied and the work it did laying them was guaranteed for a period of 3 years. The evidence which I have already accepted and is corroborated by the defendant as well, is that the warranty extended to both the quality and the workmanship and that the quality of grey tiles was the same as that of a black ones.

It would be stretching the imagination therefore to think that by choosing the colour of grey which was also provided by the defendant, the plaintiff varied the terms of the warranty which accorded it greater protection and was given by the defendant.

I conclude therefore that the plaintiff did not vary the warranty. It was incapable of doing so.

Whether the plaintiff was negligent in the maintenance of the tiles.

The defendant’s witness Nengomasha testified that the plaintiff maintained the tiles well for the first 3 months. However this did not stop them lifting. From the time they had started lifting in October 2010, the problem was never solved until litigation commenced. I am therefore unable to accept that there was any negligence on the part of the plaintiff which caused the lifting of the tiles.

Whether the plaintiff is entitled to the relief sought

To the extent that there was a breach of the contract and that there was a warranty given, and that the defendant refused to remedy the breach well knowing of the existence of the warranty, the plaintiff is entitled to damages. It is the quantum of those damages which calls for further consideration.

The evidence led for the plaintiff is clear that the sum of $27 260-29 that was paid was for the supply of tiles, the filling of potholes and the labour for laying the tiles. It was the plaintiff’s case that the levelling of the workshop cost about $2000-00. I am of the view that the cost of the levelling cannot be recovered on the basis of the breach because the plaintiff would have incurred that expense even if no laying was done. Indeed the plaintiff still had to do more work on its workshop after removing the tiles and now uses the workshop without tiles after filling the potholes. I think it did derive benefit from that exercise and a sum of $2000-00 should therefore be deducted from the claim.

In the result, I make the following order that;-

Judgment be and is hereby entered for the plaintiff against the defendant in the sum of US$25 260-12.

Interest thereon at the prescribed rate from the date of summons to date of payment in full.

Costs of suit on an ordinary scale.

Sawyer & Mkushi, plaintiff’s legal practitioners

Messrs Mtetwa & Nyambirai, defendant’s legal practitioners