Aluminium & Steel Works Ltd v Vijay Construction (Pty) Ltd & Anor (CS 98/1998) [2001] SCSC 30 (18 December 2001)

Aluminium & Steel Works Ltd v Vijay Construction (Pty) Ltd & Or (2001) SLR 272 Philippe BOULLE for the Plaintiff Antony DERJACQUES for the First Defendant Ronny GOVINDEN for the Second Defendant Order delivered on 18 December 2001 by: PERERA J: This Court by judgment dated 20 October 2000 held, inter alia- Hence I hold that the Plaintiff is entitled to a sum of R.274,297.72 on their final claim, which sum is payable jointly and severally by the First Defendant and the Second Defendant together with interest at the Commercial rate of 14% from 1st December 1994, and costs of action on a pro-rata basis. However as the correspondence discloses delays in performance by the Plaintiff, the final sum to be paid to the Plaintiff will be subject to a proper assessment being made of the alleged delays and defects by both Defendants and deducting an appropriate sum therefrom. Since the amount payable has not been definitely determined by Court, the Plaintiff will have the right under Section 223 of the Code of Civil Procedure, with due notice to the Defendants, to apply to Court for an order fixing the amount due, if the Defendants fail to tender an acceptable amount within 2 months from the date hereof. When the case was mentioned on 7 December 2000, Mr Boulle Learned Counsel for the Plaintiff informed Court that the Defendants had not tendered any amount in terms of the order of Court. The case was thereupon fixed for hearing on 6 June 2001. On that day Mr Frank Elizabeth stood in for Mr Derjacques who was said to have gone abroad. The Court was also informed that the First Defendant had also gone abroad. Mr Elizabeth sough further time to consult with the First Defendant as to whether he would testify himself or would call witnesses. The Court reminded Mr Elizabeth, that although there was sufficient evidence on record, what was ordered by Court was the tendering of an acceptable amount to the Plaintiff after deductions being made for the any delays and defects, failing which the Court would make an assessment. Mr Elizabeth thereupon agreed to make an offer on 8 June 2001, and the Court made order that if such offer was not acceptable to the Plaintiff, the Court would proceed to hear evidence on 22 June 2001. On 8 June 2001, Mr Derjacques sought to tender a written offer, but Mr Boulle objected to its production to Court on the ground that the offer and acceptance was a matter to be attended out of Court jointly by the First and Second Defendants and the Plaintiff. However, on perusing the written offer, Mr Boulle informed Court that it was not acceptable to the Plaintiff. State Counsel appearing for the Second Defendant sought time to consider whether the Second Defendant would agree with the offer made by the First Defendant to the Plaintiff. As Counsel for the First Defendant informed Court that Mr Vijay Patel would be out of the Country on 22 June 2001 fixed for hearing of evidence, that date was utilised for a mention to ascertain the position of the Second Defendant. Mr Boulle however excused himself from being present in Court on that day. On 28 June 2001, State counsel agreed with the quantum of the offer made by the First Defendant, and the hearing was fixed for 3 December 2001. However on that day, Mr Patel was said to have gone abroad. No other witnesses had also been summoned for the hearing. The Court however fixed the hearing for 14 December 2001 as the “final date" and also informed Counsel for the First Defendant that if by then Mr Patel was still not available in the Country, somebody else who could testify regarding the assessment should be called so that the matter could be finalised. By a letter dated 12 December 2001, Mr Derjacques informed Court, with notice to Counsel for the Plaintiff and the Second Defendant that Mr Patel and his Quantity Surveyor "(were) both out of the Country". This assertion was challenged by Mr Boulle, who summoned an Officer from the Immigration Division. The Immigration Officer testified that Mr Patel last left the country on 29 November 2001 and arrived back in Seychelles on 6 December 2001, and that he had not left the country thereafter. Mr Derjacques explained to the Court that he had acted on the instructions given to him by Mr B. Georges, Attorney at Law who is Mr Patel's lawyer, though not officially so on record in the present case. In any event I would accept that there has been some misunderstanding of instructions. Mr Derjacques questioned the Immigration Officer regarding the availability of Mr Roger Allen Quantity Surveyor of M/S Barker and Barton, who had prepared; the "statement of final invaluation no. 39" on 22 March 1996 (exhibit ID3). He stated that his last arrival date was 25 May 2000 and that he left Seychelles on 1 June 2000 and has not returned thereafter. There was therefore clear evidence that the assessment being of a technical nature, no attempt had been made by the First Defendant to contact Mr Allen or any other Quantity Surveyor from his firm ever since the judgment was delivered on 20 October 2000. Further, it is clear on record that the First Defendant has not pursued the order of the Court with reasonable diligence. In this case, the Court has provisionally held that the Plaintiff is entitled to a sum of R274,297.72 together with interest at,14% from 1 December 1994, and costs of action. Mr Boulle moves for confirmation of that finding as the judgment of Court, in view of the delay caused by the lack of diligence on the part of the First Defendant to present necessary evidence to substantiate the offer made to the Plaintiff under Section 223 of the Code of Civil Procedure. Mr Derjacques submitted that to do so would be both unfair and unconstitutional. He therefore moves for a further adjournment, albeit, on costs. Although the doctrine of audi alteram partem is one of the essential ingredients of the principles of natural justice and the Constitutional Right to a fair hearing, the matter before Court arises from an ancillary issue which did not arise strictly from the pleadings. The equivalent of Section 223 of the Code of Civil Procedure Code, in the United Kingdom, is contained in RSC Order 37. In practice, that rule is applied when the Court has decided on the liability, and either grants provisional damages, or leaves the assessment of entire damages to the master. Section 223 gives an opportunity to the parties after determination of liability, or money to be paid, and if they fail to reach such agreement the Court would fix the amount upon hearing evidence. In the present case the sum of money payable to the Plaintiff has already been provisionally determined. An opportunity was given to the Defendants to agree on a sum to be deducted from that amount as the Court was of the view that the correspondence produced in the case as evidence, disclosed delays in performance by the Plaintiff, and that hence the final sum to be paid to the Plaintiff should be subject to a proper assessment being made of any delays and defects to be made by both Defendants. Neither the First Defendant nor the Second Defendant have in their respective statements of defence raised any averment as regards delay in performance or of any defects attributable to the Plaintiff. The opportunity was given by Court ex mero motu on equitable considerations on material arising from the correspondence, although the Court was not obliged to do so. The First Defendant has not pursued this opportunity, by delaying making an offer, and after it was rejected by the Plaintiff, by failing even to contact the Quantity Surveyor concerned, who, according to evidence disclosed now had already left the Country 1 1/2years ago. "Delay defeats equity". In these circumstances, it would not be equitable for the Court to grant any further adjournment to the First Defendant. In the judgment dated 20 October 2000, this Court determined the liability of the Second Defendant as follows- Defendant does not therefore arise directly vis a The liability of the Second vis the Plaintiff. But as the First Defendant was liable to the Second Defendant, the Second Defendant, and the Plaintiff was liable to the First Defendant would be indirectly liable to the Plaintiff in respect of payments, for which the Second Defendant alone was solely liable. The Second Defendant has averred in the defence that it had discharged its obligation under the contract with the First Defendant and made all payments due. But as that averment was not proved in the case, the Court has to proceed on the basis of joint liability. Hence the provisional award of R274,297.72 was made payable by the First and Second Defendants jointly and severally in terms of the averment in the para 9 of the plaint. Accordingly order is hereby made confirming the award of a sum of R274,297.72 to the Plaintiff, payable by the First and Second Defendants jointly and severally together with 14% interest thereon from 1 December 1994 until payment in full, and costs of action payable by the First Defendant Second Defendants on a pro rata basis. Record: Civil Side No 98 of 1998