IN THE COURT OF APPEAL OF LESOTHO
C of A (CIV) 24/2009
In the matter between:
LEBAJOA MONAMATHA ….................APPELLANT
LEHLOHONOLO MATABOOE ….......RESPONDENT
CORAM : SMALBERGER, JA
Heard : 11 October 2010
Delivered: 22 October 2010
Appeal against the dismissal in the High Court of the plaintiff’s action for damages for unlawful termination, alternatively, breach of a building contract – on appeal defendant found to have breached the contract – plaintiff failing to prove any damages – order in court below should have been one of absolution from the instance with costs – order of court a quo altered accordingly – appeal otherwise dismissed with costs.
 On 17 March 2005 the plaintiff (appellant) and the defendant (respondent) entered into a written building contract (the agreement) in terms of which the plaintiff (a building contractor) undertook to build a dwelling for the defendant for the sum of M150 000. In terms of the agreement work was to commence on 28 March 2005 and be completed within 12 weeks. On 25 August 2005 the defendant summarily terminated the agreement in terms of a letter of that date (the letter of termination). At that stage the dwelling had not yet been completed.
 Following on the letter of termination the plaintiff instituted an action for damages against the defendant in an amount of M292 619-85 which was claimed to represent “the loss he sustained from the unlawful termination of contract [the agreement] after he [the defendant] had increased the scope of works”, alternatively, (in terms of a later amendment granted during the trial) “for breach of and unlawful termination of contract”. The matter came before Majara J. The only witnesses who testified at the trial were the plaintiff and the defendant. At the conclusion of the trial the learned trial judge dismissed the plaintiff’s claim with costs, hence the present appeal. For convenience I shall refer to the parties as the plaintiff and the defendant respectively.
 The record reveals considerable disagreement and confusion with regard to what the scope of the agreement was. The signing of the agreement was preceded by a quotation by the plaintiff for M150 000-00. The quotation included plumbing, water drainage and electrical wiring. The quotation was not incorporated in the agreement. In terms of the agreement the works were said to comprise “construction of a dwelling house as shown in the drawing and/or described in the specification.” It is common cause that the defendant had employed an architect to draw up a plan and specifications. For some inexplicable reason they never featured in evidence. Neither party saw fit to hand them in. One is totally in the dark as to the precise extent of the work the plaintiff was required to carry out in terms of the agreement. An essential piece of evidence is thus missing.
 It is common cause that clause 1 of the agreement required the plaintiff to provide all the materials necessary to carry out and complete the whole of the works. It is also not in issue that although drainage and electrical wiring featured in the plaintiff’s quotation, no provision was made for them in the plan and specifications. According to the defendant they were always intended to be included in the work to be carried out under the agreement. The plaintiff asserted that they constituted agreed variations which increased the scope of the works and occasioned extra costs for which the defendant was liable; this was denied by the defendant. No written authority ever appears to have been sought from the architect for a variation to the work or additional cost to the defendant as foreshadowed by clause 2 of the agreement. As will appear below, it is not necessary, in view of the decision to which we have come, to attempt to resolve these differences.
 Work on the defendant’s dwelling commenced on schedule. On 18 May 2005 the plaintiff was paid an amount of M40 500 for work already done. A further part-payment of M43 000 was made on 28 July 2005. By then the twelve week period for completion of the dwelling in terms of the agreement had elapsed. Despite that the plaintiff was allowed to continue building and was not put to terms with regard to a date for completion. At the same time an amount of M51 000 earmarked for payment to the plaintiff in due course was transferred to the defendant’s personal account. According to the defendant this was done at the plaintiff’s request. At that stage the plaintiff was experiencing financial problems, probably due to the fact that the price he had tendered for the construction of the dwelling was far too low. (In passing it should be mentioned that at one stage in his evidence the plaintiff contended that he had been misled or unduly influenced by the defendant into tendering the price he did, but this was never pleaded and was not an issue in the trial.) The M51 000 was mainly used to purchase roofing and other materials for the dwelling (in discharge of the plaintiff’s obligations) and a balance of M19 000 was paid to the plaintiff. At the conclusion of the evidence the above facts were either common cause or no longer seriously in dispute. In all an amount of M134 500 in respect of the contract price was paid to the plaintiff.
 When the defendant sought to terminate the agreement on 25 August 2005 the plaintiff still had some way to go to complete the dwelling. The grounds of termination were stated in the letter of termination as follows:
“Owing to the fact that you failed to observe and deliver within the agreed period as section 1 of the contract indicates, you failed to observe section 6 paragraph 3 of the contract and your recent behaviour of taking my building and roofing materials from my site for your own benefit forced me to terminate the contract.”
 In dealing with the first ground for termination the learned judge a quo found, in effect, that the plaintiff’s failure to complete the dwelling within the time stipulated in the agreement amounted to late performance and constituted a breach of contract. She further held that the defendant’s failure to act sooner was no bar to his right to terminate the agreement on account of such breach. In my view she erred in this regard.
 Clause 9 of the agreement allows the architect to extend the date of completion. From the facts set out above it is apparent that the defendant (whether personally or through his architect) acquiesced in the plaintiff continuing with the building beyond the stipulated date for completion. The parties must therefore be taken by their conduct to have extended the period in which the plaintiff was to perform. Having done so, the defendant was precluded from lawfully terminating the agreement without putting the plaintiff to reasonable terms with regard to the date of completion. Accordingly, by summarily terminating, or purporting to terminate, the agreement in the manner in which he did the defendant was in breach of contract.
 The second ground advanced for termination of the agreement relates to the alleged removal of building and roofing materials from the site by the plaintiff. Such conduct, if established, and of sufficient magnitude, could amount to a repudiation of the agreement and justify its termination. However, there is a dispute with respect to this issue and the judge a quo made no finding in regard to it. In view of my conclusion on the question of damages, which will dispose of the appeal, there is no need to resolve this issue either.
 Accepting that there was a breach of contract, the plaintiff failed dismally to prove the damages claimed by him, or any damages. The plaintiff was paid M134 500 of the contract price of M150 000. He did not seek to claim the balance of the contract price, and understandably so. To do so he would have had to tender performance of his unfulfilled obligations under the agreement, something he was in no position to do. The plaintiff himself gave no evidence which could provide a foundation for a proper assessment of damages. All he did was to hand in as an exhibit an estimate by a quantity surveyor of the building cost of the defendant’s dwelling based on the plan and specifications. The quantity surveyor in question did not testify. The estimate in the circumstances constituted inadmissible hearsay evidence. That it was handed in as an exhibit (impliedly subject to later proof) does not change that fact. In any event, it is not clear what purpose the estimate was intended to serve where the agreement stipulated a contract price by which the plaintiff was bound, and which represented his entitlement on fulfilment of his obligations. Only if additional work was agreed upon would he have been entitled to more. Even assuming that extra work was agreed upon, the plaintiff failed to establish the precise nature and extent of such work, or the reasonable cost of such work. Consequently the plaintiff failed to prove any damages.
 Mr. Mosito, who appeared on appeal for the defendant, accepted that the order that should have been made in the court below was one absolving the defendant from the instance with costs. Such an order can be substituted without there being any cost implications either in the court below or in respect of the appeal.
 The following order is made:
“Save that the order in the court below is altered to one of absolution from the instance with costs, the appeal is dismissed, with costs.”
JUSTICE OF APPEAL
JUSTICE OF APPEAL
JUSTICE OF APPEAL
For appellant : Adv M. Ntlhoki
For respondent : Adv K.E. Mosito KC