Municipal Board of Mombasa v Ogilvie (Civil Appeal No. 59 of 1955) [1950] EACA 117 (1 January 1950)

H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Newnham Worley (President), Briggs and BACON, Justices of Appeal.

^THE MUNICIPAL BOARD OF MOMBASA, Appellant (Original Plaintiff)

v. A. G. W. OGILVIE, Respondent (Original Defendant No. 2)

Civil Appeal No. 59 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, MacDuff, J.)

Contract—Limitation—Pleadings.

The appellant had employed a contractor to erect certain buildings and the respondent had been employed to act as its architect for this purpose. The buildings were completed in April, 1947, and after a six-months' retention period all maintenance work required by the architect had been done. On 5th April, 1948, the respondent issued the final certificate and final payments were made by the appellant in May, 1948. By 1950, defects of design, materials and workmanship had caused the buildings to become dilapidated and dangerous and about $£7,250$ was spent in remedying the defects. All the defects were not ascertained until February, 1952, and the work was not completed and the damages ascertained until September, 1952. Proceedings were instituted in April, 1954, against the contractor and the respondent alleging breach of contract and negligence and claiming as special damages the cost of remedying the defects. No claim for general damages was made. The Supreme Court dismissed the action on the ground of limitation. On appeal it was argued that the issue of the final certificate in May, 1948, was a negligent breach of contract for which the damages claimed could be recovered.

Held (27-3-56).—(1) The injury for which special damages were claimed must have occurred no later than the date of completion of the work by the contractor and the claim was therefore barred.

(2) Whether or not a claim might lie against the respondent for general damages in that his issue of the final certificates deprived the appellant of the right of action which it might otherwise have had against the contractor, no such claim was made on the plead-<br>ings and the expression "further or other relief" is not wide enough to cover an award for general damages.

Appeal dismissed.

No cases.

Bryson for appellant.

Cleasby for respondent.

BRIGGS, J. A.—This is an appeal from a decree of the Supreme Court of Kenya which dismissed a suit on a preliminary point as being barred by limitation.

By two contracts in writing dated respectively 9th March, 1946, and 19th July, 1946, the appellant employed one Hem Singh to erect certain buildings at a total cost of about £17,000. The appellant had previously engaged the respondent to act as its architect for this work. His duties included preparation of plans, specifications and bills of quantities, supervision of the work and issue of certificates. The work was completed by 22nd April, 1947, and after the six months' retention period all items of maintenance required by the architect had also been

done. On 5th April, 1948, the respondent issued final certificates on both contracts and final payments of about £1,900 were made in May by the appellant. The respondent has been paid his fees, amounting to about £1,550.

The plaintiff alleges that grave defects of design, materials and workmanship. of which it was previously unaware, had by 1950 caused the buildings to become so dilapidated and dangerous that it was necessary to incur expenditure of about $£7,250$ in order to repair the defects. The whole extent of the defects did not become known until February, 1952, and the work of repair was not completed. and the damages were therefore not ascertained, until September, 1952. On 1st April, 1954, the plaintiff sued Hem Singh and the respondent alleging breach of contract and negligence, and claiming as damages the cost of remedying the defects. Both defendants pleaded limitation and, on this issue being tried as a preliminary point, the suit was dismissed against both. The plaintiff gave notice of appeal against the whole decision, but abandoned his appeal as against Hem Singh. As against the respondent the appeal has been limited to a single issue. whether the suit should be allowed to prooceed in consequence of the final certificates having been issued less than six years before action brought, and for such damages as might be shown to have resulted from the issue of such certificates.

Mr. Bryson, for the appellant, contended that while the principal breaches of contract alleged against the respondent, which may be shortly described as errors of design and failure to supervise, may have been initially responsible for the defective work of the contractor, the issue of certificates, and particularly the final certificates, was a distinct and separate series of negligent breaches of contract for which the damages claimed could be recovered. The earlier certificates, however, were all beyond the limitation period of six years, and we are only concerned with the final ones. Assuming in the appellant's favour (and reserving all due respect for Mr. Cleasby's careful argument to the contrary) that the issue of each final certificate was a separate and severable breach giving rise to a distinct cause of action in April or May, 1948, it is apparent that the injury for which special damages are claimed in this suit must have occurred no later than the date of completion of the work by the contractor. The damages claimed are the cost of repairing his errors, and those errors could not have been made after his work was completed. It is therefore logically and legally impossible that the damages should flow from a breach of contract committed many months after that time, and Mr. Bryson in his reply was constrained to admit this. He argued, however, that damage did flow

from the negligent issue of the final certificates, and that it might have been of at least two kinds. First, if the truth had been known, the certificates need not have been issued and the appellant would not have been obliged to pay out £1,900 on them. Secondly, by reason of the provisions of sub-clause $(f)$ of clause 24 of the R. I. B. A. standard conditions of contract, which were incorporated by reference in the contracts with Hem Singh, the issue of the final certificates deprived the appellant of a right of action which it would otherwise have had against Hem Singh, so far as it related to defects discoverable by reasonable examination and not due to dishonesty. Assuming, without deciding that a claim might have been made against the respondent on these lines, it is plain on the pleadings that no such claim has been made in this suit. Mr. Bryson, however, argued further that, apart from any special damages of these kinds or any other, the breach of contract would entitle him to some general damages, and though these might be nominal or even contemptuous in amount he had none the less a complete cause of action, not barred by limitation, from which a decree might result. He admitted frankly that, if he could succeed on this appeal, he would at once apply to the Supreme Court to amend his claim and so hope to save something substantial from the general wreckage of the suit.

I think the answer to this contention is twofold. First, the plaint contains no praver for general damages. Apart from the claim for £7,250-odd for cost of repairs, there are claims for interest and costs and the common form claim for "further or other relief". Mr. Bryson submitted that this last was wide enough to cover an award of general damages, but I cannot agree. He was unable to refer us to any case in which general damages had been awarded under such a head of claim, and I think on principle that such an award would disregard the rules of pleading as to formulaiton of claims, and could not properly be made. Secondly, it is not enough for an appellant whose suit has been dismissed on grounds of limitation to show that his plaint discloses a technical cause of action. It must be a cause of action which will, if established, result in a decree in his favour. I think the alleged cause of action based on issue of the final certificates could not be the foundation of any decree in this suit in favour of the appellant, since no claim for relief in respect of it appears in the plaint, and we are concerned only with the plaint as it is, not with a hypothetical amended plaint in a different form.

For these reasons I think the learned trial Judge was right in dismissing the suit as against the respondent. I would add that I have assumed in this judgment, for reasons which are apparent, that the allegations of breach of contract and negligence might be established as true. I wish, however, to make it clear that no such allegation has ever been supported by any evidence, and for general purposes it would be quite wrong to assume that the allegations are in any way well founded.

I would dismiss this appeal with costs; but any costs arising from the filing of the notice of cross-appeal should be disallowed, since it was filed unnecessarily. Where a respondent intends only to support the decision appealed from, though perhaps on different grounds, a cross-appeal is inappropriate.

WORLEY, President.—I have had the advantage of reading beforehand the judgment which has just been delivered. I agree with it and have nothing to add. An order will be made in the terms proposed in that judgment.

BACON, J. A.-I also have had that advantage, and agree.