MCR Vengesayi and Agnes Vengesayi carrying on business in partnership under the name Style Vengesayi Architects v Belvedere Nursing Home (Private) Limited

### Preamble
Judgment No. SC 15/2020
Civil Appeal No. SC 27/19
1
REPORTABLE
(13)
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REPORTABLE	(13)

MCR     VENGESAYI     AND     AGNES     VENGESAYI     carrying     on     business     in     partnership     under     the     name     STYLE     VENGESAYI     ARCHITECTS

v

BELVEDERE      NURSING     HOME     (PRIVATE)     LIMITED

SUPREME COURT OF ZIMBABWE

GUVAVA JA, BERE JA & MATHONSI JA

HARARE:	 NOVEMBER 1, 2019 & FEBRUARY 6, 2020

T. Zhuwarara, for the appellants.

E.T. Matinenga, for the respondent.

MATHONSI JA: This is an appeal against the whole judgment of the High Court handed down on 18 February 2015 in which it dismissed with costs the appellants’ claim for payment for architectural services allegedly rendered to the respondent at its special instance and request.

FACTUAL BACKGROUND

The respondent desired to effect certain improvements on its property located on stands 6803 and 6804 Salisbury Township, being No. 17 Princess Road, Belvedere, Harare where Belvedere Maternity Hospital is located.  In that regard, the respondent engaged the appellants, a firm of architects, with whom it signed a written agreement on 19 September 2005.  In terms of that agreement, the appellants were required to provide architectural services namely to make town planning applications for special consent, demolitions, alterations and additions to the maternity hospital.

In terms of Clause 2 of the written agreement of the parties:

“The client will pay the Architect for these services on the following basis (as indicated

in the schedule):

As per Statutory Instrument S.I (sic) 829 of 1980 as amended by S.I. 426 of 1999 second and third schedules) for Hospitals, Nursing Homes, Clinics and Laboratory Complexes and for alterations and additions to existing buildings.  Architect’s fees shall be calculated using Quantity Surveyor’s latest valuations which are not more than 14 (fourteen) days old. The fees shall be calculated in accordance with the provisions of second and third schedules on the percentage of the estimated cost of the works and adjusted accordingly at the end of the contract.  Date on the fee note to be within 14 (fourteen) days of Quantity surveyor’s valuation.”

I have reproduced the above clause governing the payment of architectural fees verbatim because it is key to the determination of the dispute which later arose between the parties and forms the basis of the present appeal.  On 6 December 2006 the appellants submitted a fee note to the respondent for services rendered as at that time in terms of the third schedule to S.I. 829 of 1980.  The specific services charged for in that fee note were listed from (a) to (e). They are:

“a) Taking client’s brief and carrying out special tasks.

b) Preliminary design and production of drawings for purpose of application to City of

Harare for planning permission to build a two and three storey addition and alteration

to Belvedere Maternity Hospital on Stand 6803, Salisbury Township and following up

and liaising with City of Harare as per client’s instruction.

c) Measuring and production of drawings of the existing Hospital.

d) Advising client on engagement of, liaison with and co-ordination of other specialist

consultants, i.e. Planning Surveyors, Topographical Surveyors, Structural and Civils,

Electrical and Mechanical and Quantity Surveyors on behalf of client for purposes of

production of budget estimates for planning purposes.

e) Attending numerous design and design development meetings, and culminating in

submission of new design changes to Dr Zvandasara, Mrs L. Chitemerere and Matron

Gomba.”

It is clear from that fee note that it was based on what was then the current estimated cost of works based on the Quantity Surveyors’ Estimates dated 24 November 2006.  The Architect’s fee was a percentage of that estimate in Zimbabwean currency.  Whether that fee was paid or not, which is not clear from the record, is not material for the resolution of this appeal.  What is pertinent is that, based on the same formula, the appellants raised another fee note on 3 August 2010.

What was charged for at that second stage was set out in bullets in the fee note as:

“Taking client’s brief and developing it.

Co-ordination of other consultants (Town Planner, Engineers & Quantity Surveyors).

Site Analysis; Analysis of infrastructural Services.

Sewage System Capacity Test.

Advising as to selection and suitability of site and scope of enabling works.

Production of working drawings, schedules and Contract Documentation.

Application to Local Authority for Permit to Consolidate properties (from stands 6803 S.T.L and 6804 S.T.L. to Stand 19683 Harare Township)

Facilitation for approval of drawings with City of Harare.  Approval of Permit for Development and Approval of Building Plans – our ref 300/95/067/66 dated 5th July 2010.”

The Architect’s fee of US$ 1 253 556-00 was against a percentage of the cost of construction as per budget based on the estimates dated 30 June 2010 using the same formula as I have said.

The respondent resisted that fee resulting in a dispute between the parties.  The appellants sued out a summons in the High Court for an order declaring their agreement valid and enforceable, payment of US$ 1 071 992,05, interest on that amount at the agreed rate of 28 percent per annum from August 2010 to date of payment and costs of suit on a legal practitioner and client scale.  The basis of the appellants’ claim was the alleged breach by the respondent of the parties’ agreement when it failed or neglected to settle the bill within 14 days of its presentation.

The respondent contested the action.  In its plea it denied ever entering into a contract with the appellant.  It asserted that the written agreement was signed without its consent, knowledge or authority of its board of directors or shareholders.  For that reason, the respondent made the averment that it was not indebted to the appellant in the amount claimed or any amount for that matter.

At the trial, the High Court was called upon to decide whether the parties entered into a valid and binding agreement for architectural services and whether the respondent was liable to the appellant in the amount claimed.  Quite early during the trial the High Court was called upon to decide a preliminary point relating to prescription of the appellants’ claim.  Following full arguments on that aspect the court a quo made an interlocutory ruling that, of the appellants’ claim in terms of the summons, 75 percent of it had prescribed in terms of the Prescription Act [Chapter 8:11].  The court a quo ruled that 25 percent of the appellants’ claim had not prescribed.

It is common cause that the amount claimed by the appellants, which had not prescribed according to that ruling, is $357 330,68.  The trial then proceeded in respect of that balance of the appellants’ claim.  It was the appellants’ contention that when the parties entered into the contract, the respondent was represented by Doctor Partson Zvandasara, its Managing Director at the time, as well as its Company Secretary, one Lois Chiteme.  The two signed the contract on behalf of the respondent.

The appellants further contended that the fees due to it in terms of the contract were to be levied in terms of Statutory Instrument 829 of 1980, as amended, in accordance with the quantity surveyor’s latest valuation of not more than 14 days.  Payment was due within 14 days of the presentation of the fee note to the respondent.  The appellants insisted that they had, in accordance with the terms of the agreement, duly rendered architectural services to the respondent and presented their fee note which the respondent neglected to settle.

According to the appellants when services were rendered there were no objections from the respondent for over a period of 6 years.  In fact the respondent paid the appellant’s claims for disbursements throughout that period and consented to several juristic actions which required its express consent.  Indeed the appellants called Dr Zvandasara as one of their witnesses and he corroborated the evidence of MCR Vengesayi on the conclusion of the contract and its terms.  Dr Zvandasara maintained that he had the respondent’s express authority to enter into the contract on its behalf.

On its part, the respondent, through its witnesses Doctors Tsunga Chipato and Misheck Chiware, denied entering into a contract with the appellant.  They stated that they did not authorise Dr Zvandasara to conclude a contract for architectural services on the respondent’s behalf.  The respondent’s two witnesses are shareholders whose testimony was that they did not approve of the project.

THE DECISION A QUO

I have already related to the court a quo’s decision on prescription in which it ruled that the appellants’ claim in the sum of $357 330.68 had not prescribed and was still alive.  That judgment was not appealed against by any of the parties.  It remains extant to this date.  At the end of the appellants’ case, the court a quo was again called upon to determine an application for absolution from the instance mounted by the respondent.  Although the judgment on that application has not been made part of the appeal record, it is common cause that the application was dismissed because the court a quo was satisfied that at that stage the appellants had presented evidence upon which the court could find on their behalf.

Indeed, commenting on why it dismissed the application for absolution from the instance in the main judgment at p 4, the court a quo stated:

“The court at that stage formulated the view that there was evidence upon which a reasonable court might give judgment in favour of the plaintiff and that the plaintiff had established a prima facie case.  The court, in coming up with that decision, considered that an agreement had been entered into and executed.  The indications at that stage were that the MD had ostensible authority to enter into the contract in issue and there was work done after the first fee note which the plaintiff may be entitled to claim for.”

It is not clear how the view the court a quo had formulated at the close of the appellants’ case dissipated during the presentation of the respondent’s case.  This is particularly so given that the thrust of the evidence of the respondent was a denial of the existence of authority for Dr Zvandasara to bind the respondent to a contract.

The court a quo however dismissed the appellant’s claim even for the sum of $357 330.68 which had not prescribed. It did so despite making pointed findings that the conduct and deeds of the parties after the signing of the contract and “during the progression of the project confirms” that the respondent’s Board of directors” was aware of the project and gave it its thumbs up.”  The respondent was aware, so the court a quo found, of the payments made towards the project and that the Board of Directors of the respondent “approved the developments.”

The court a quo made a finding that the parties entered into a binding contract for the alterations, additions and refurbishment of the hospital.  It also made the following important finding at p 10 of the cyclostyled judgment:

“The issue is how much the plaintiff is entitled to in terms of the 2010 fee note.  The work done and claimed after the 2006 fee note constitutes 25 percent of the work.  It means that the plaintiff is entitled to only 25 percent of the work done under the 2010 fee note.”

I have said that the parties are agreed that the 25 percent that the court a quo was referring to amounts to $357 330.68.  Surprisingly however, right at the end of the judgment the court a quo appears to have contradicted itself when it concluded:

“Once I ruled that the plaintiff was entitled to only 25 percent of the fees, it was incumbent upon the plaintiff to prove the work carried out after the first fee note and come up with charges for the separate work carried out.  This, the plaintiff did not do because it stubbornly stuck to the entire claim.  Its folly has betrayed it.  The fee note does not specify how much was charged for each category of work carried out.  The defendant contends that the plaintiff’s claim has been reduced to $357 330,68 for work carried out after the 2006 fee note.  Their computation is based on a calculation of 25 percent of the 2010 fee note.  No attempt was made to prove 25 percent of the claim.  The plaintiff has failed to prove that it is entitled to 25 percent of the fees or any lesser amount.  In the absence of any apportionment of charges for each separate head of work carried out after 2006, I am unable to find that the plaintiff has proved its claim on a balance of probabilities.”

While the court a quo clearly ruled that the appellant was entitled to 25 percent of the fees charged in the 3 August 2010 fee note, it again dismissed the same claim on the ground that the appellant was required to prove it.  The appellant was understandably aggrieved and noted this appeal.

GROUNDS OF APPEAL

The grounds upon which the appellants have challenged the judgment of the court a quo are:

The court a quo erred and grossly misdirected itself in dismissing the appellants’ claim on the basis that the attendant quantum had not been proved.  Such finding was anomalous considering that the court a quo had found in favour of the appellants on the substantive issues before it.

Having found that the appellants did work between 2006 and 2010 in terms of a valid agreement and that 75 percent of the appellants’ claim had prescribed, the court a quo erred and misdirected itself in failing to find that the appellants was entitled to payment of US$357 330,68 being 25 percent of the appellants’ initial claim.

ANALYSIS

The only issue for determination is whether the appellants proved an entitlement to the sum of $357 330.68 being 25 percent of the initial claim submitted in the fee note of 3 August 2010.  It is anomalous that this remains an issue on appeal when the court a quo determined that indeed the appellants were entitled to 25 percent of the total fee levied on 3 August 2010.

Mr Zhuwarara for the appellants submitted that the court a quo erred in treating the appellants’ claim as that for contractual damages to be proved by leading evidence on each head of the work performed after 2006 and its value.  In his view, the appellants’ claim was for specific performance. In order for it to succeed the appellants had to prove 3 essentials, namely that;

There was a binding contract entered into by the parties;

The appellants performed their obligations under the contract; and

The respondent failed to meet its obligations under the contract.

According to Mr Zhuwarara, once the court a quo made findings in favour of the appellants, as it did, in respect of the above 3 essentials, it had to grant the appellants relief.  The fact that it did not do so is a misdirection inviting this court to interfere with the judgment of the court a quo.

Mr Matinenga for the respondent was of a different view.  He submitted that the appellants had an obligation to prove an entitlement to the sum of $357 330.68 which had not prescribed.  Having failed to lead evidence to prove entitlement, the appellants did not discharge the onus resting upon them.  The court a quo was correct to dismiss the claim.

In my view, the court a quo overlooked certain fundamentals as a result of which it misdirected itself.  To begin with, the submission of fees by the architects and the obligation to pay those fees were matters governed entirely by the agreement of the parties.  I have already made reference to clause 2 of the agreement signed by the parties which specifically stated that the fees to be paid were in terms of the Architects (Conditions of Engagement and Scale of Fees) Bye-Laws S.I. 829/1980 as amended (the Bye-Laws).

Clause 2 also specifically stated that the Architects’ fees would be calculated using the Quantity Surveyor’s latest valuations of the progression of the project.  It also specified that the calculations would be done in accordance with the second and third schedules of the Statutory Instrument.  There is absolutely nothing in the written agreement of the parties providing for an apportionment of charges for each separate head of work performed by the Architects as demanded by the court a quo.  In other words, the court a quo required the appellants to prove a case which was not in the contract.

For all that it is worth, the appellants’ fee note grounding their claim, set out in detail what it is that was done between 2006 and 2010.  I have also reproduced the contents of the fee note above and it shows that the attendances undertaken by the appellants during that period were different from those claimed in the fee note of 2006.

Mr Zhuwarara helpfully cited s14 (1) of the Bye-Laws in advancing the argument that the Architects Tariff prescribes a manner in which Architects compute their fees for services rendered.  It reads:-

“Subject to the provisions of this part, the fee for designing and supervising the construction of any building shall be a percentage of the final cost of the works according to the fee scale shown in the First Schedule and the valuations to it shown in the Second Schedule.”

The fee note submitted by the appellants on 3 August 2010 showed the budgeted construction cost of the project which was being undertaken by the parties as being US$12 million.  This was an estimate produced on 30 June 2010.  The Architects’ fees were calculated as a percentage of that cost using a certain formula extracted from the bye-Laws.  In his evidence before the court Mutumwapabi Charles Ritchie Vengesayi made reference to the Bye-Laws stating that they stipulated how the fee was charged.

Vengesayi explained that the fees are divided into three series of payments namely the first phase, which constitutes the design and brief production stage.  There is the next phase which constitutes the work and drawing stage and finally the supervision stage.  Significantly, the tariff determines what is presented for payment.

Having done that, and also having produced the fee note showing how the fee was calculated in terms of the Bye-Laws, the matter was resolved.  This is so because the respondent did not challenge the fees charged.  In fact the entire defence of the respondent centred around denial of the existence of a contractual relationship and not how the fees were computed.  The respondent was required, if it queried the fee note, to proceed in terms of s 29 (1) of the Bye-Laws to refer the query to the Architects Council of Zimbabwe for adjudication.  This was not done.

A good part of the cross-examination of Vengesayi by counsel for the respondent concentrated on demanding a breakdown of fees for each of the heads of work undertaken.  In doing so counsel hoped to discredit the claim as not having been proved.  In my view this was completely unnecessary and may have contributed in misleading the court a quo by drawing its attention to what was irrelevant.  That line of questioning was not even in pursuance of the respondent’s plea which, as I have said, was a denial of the existence of a contract between the parties.

It is trite that a pleader cannot be allowed to direct the attention of the other party to one issue, and then pursue a different issue at the trial.  See Kali v Incorporated General Insurance Ltd 1976 (2) SA 179 (D) at 182A (quoted with approval in Keavney & Anor v Msabaeka Bus Services (Pvt) Ltd 1996 (1) ZLR 605 (S) at 608B).

The court a quo was clearly wrong to require the appellants to prove more than what the contract of the parties provided for.  In terms of the contract a presentation of a statement of fees calculated in terms of the Architects tariff was enough proof of liability in a case where the respondent did not query the fees but denied liability.  Once the court a quo determined the existence of a valid contract and that the appellant had rendered architectural services not paid for, it should have granted judgment in favour of the appellant in respect of the part of the claim which had not prescribed.  The appellants had already amended their claim for interest from 23 percent to 16 percent per annum.

Regarding the issue of costs, the appellants were substantially successful to a large extent.  There is no reason why the costs should not follow the result as is the norm.

The appeal should succeed.

Accordingly it is ordered that:

The appeal be and is hereby allowed with costs.

The judgment of the court a quo is hereby set aside and substituted with the following:

“(a) The agreement for the provision of architectural services entered into

between the plaintiff and the defendant on 19 September 2005 be and is

hereby declared valid and binding.

(b) The defendant shall pay to the plaintiff the sum of US$357 330,68 together

with interest thereon at the rate of 16 percent per annum from 17 August

2010 to date of payment in full.

(c) The defendant shall bear the plaintiff’s costs of suit.”

GUVAVA JA			I agree

BERE JA				I agree

Kantor & Immerson, legal practitioners for the appellant.

Chihambakwe, Mutizwa & Partners, respondent’s legal practitioners