CORAM: TEMBO, ASSISTANT REGISTRAR

Msiska, Counsel for the Plaintiff.

Msowoya, Counsel for the Defendant

ORDER ON ASSESSMENT OF DAMAGES

This is this court’s order on the assessment of damages herein pursuant to a consent judgment in the plaintiff’s fovour dated 27^th November, 2001 for damages for fumigation services rendered by the plaintiff the the defendant at the defendant’s own request. The plaintiff had been hired to fumigate the defendant’s cottage against termites. The plaintiff did the termite proofing. He initially charged the sum of K258,067.50 for his services. But on the defendant’s contending that the charges were too high the plaintiff reduced them to K129,033.75. The plaintiff allegedly spent around K56,000.00 on a material used in the fumigation although that was not substantiated by any documentary evidence like cash sale for purchase of such materials.

The plaintiff produced an invoice describing the work done of drilling holes, injecting chemicals therein and sealing them and indicating the price. The plaintiff could not explain the proper basis of his charges herein in terms that could be understood clearly. This was in contrast to the explanation given on the charging system by an expert witness from the fumigation trade who has requisite experience in the trade. That witness explained the charging system as being per hole drilled on the premises and injected with the required termite proofing chemical. When chemicals are properly injected into the drilled holes on the intended premises it takes many years for termites to resurface. Yet in the present case it only took from November, when fumigation was done, to the following January when termites were seen on the defendant’s premises again. Hence showing that the plaintiff did not properly do his job.

Further, after normal drilling of holes for termite proofing and after properly filling them with the requisite properly diluted chemical, traces of the anti-termite chemicals can be seen on the site of the holes but that was not the case herein when the plaintiffs’ work was inspected by the expert witness 3 months after it was done.

The plaintiff could not specify the number of holes he had drilled.

This court is of the view that the expert witnesses report herein ought to be attached a lot of weight. It systematically analyses the plaintiff’s work. The plaintiff ought to have drilled 312 holes around the defendant’s old cottage instead he drilled 69 holes only representing about 23% of the recommended number of holes. The plaintiff also completely ignored to do an ant-termite treatment to the defendants’ old cottage known as trench treatment. And with regard to the defendant chairman’s cottage the plaintiff drilled 71 instead of the recommended 397 holes representing around 18% of the recommended treatment work required.

The expert witness proposes that if he did the work it would cost as follows: defendant’s old cottage 312 holes at K50.00 per hole coming to K15,600.00, defendants’ chairman cottage 397 holes at K50.00 per hole coming to K19,850.00, transport 574 kms @ K13.20/km coming to K7,576.80.

This charge has been properly broken down and explained and is contrasted to the plaintiffs’ charge which was not explained at all. The work of the plaintiff is clearly substandard as can be seen from the explanation given by the expert witness herein. And it is clear that the termite proofing was basically not done since within 3 months of the alleged termite proofing termites appeared at the defendants premises. What is the legal position in such cases on the plaintiffs’ recovery for work done. In Nyadani Buidling and Plumbing Contractors Company Limited v. Katri 9 MLR 154 the parties agreed that the appellant would fit window frames and panes at a contract price of K210.00. The appellant fitted the same save for 2 window frames and panes. The court ruled that the appellant was entitled to recover for the rest of the work he had completed save for the 2 window frames not fitted. The court overruled the Magistrate’s ruling that since the contract was for a lump sum and the whole of the work have not been completed then the appellant was entitled to nothing.

This court has thought long and hard on the similarities of facts herein. And is of the view that the reasoning in the above cited case can not apply in the present case. The present case involves the resolution particular problem of termites. The result of the work sought in the present case is different from that of simply fitting window frames and panes.

This court is of the view that the question that ought to be answered is whether the plaintiff did substantially comply the contract herein warranting the payment of the contract price or part thereof herein. The reasoning in the English case of Bolton v Mahadeva [1972] 2 All ER 1322 seems more applicable in the present case. The test of compliance then becomes the nature of defects in the plaintiff’s work. In the present case the defects are so glaring and of a substantial nature. The plaintiff did not drill more than 30% of the holes necessary. The contract for work was not. Substantially compiled with to the extent that within less than 3 months of termite proofing termites appeared on the defendant’s premises. The defendant has to engage somebody to redo the work herein. And in the premises it appears that the correct decision is to award nothing to the plaintiff as was the case in the case of Bolton v. Mahadeva cited above.

This court therefore declines to make any award to plaintiff.

Made in Chambers at Blantyre this June, 2004

M A Tembo