Panjwani v. A. P. Hirji and Company Civ. Case 125-D-70; 31/5/71; Biron J.

Panjwani v. A. P. Hirji and Company Civ. Case 125-D-70; 31/5/71; Biron J. 

 The plaintiff claimed from the defendant damages for fraudulent misrepresentation in a contract. By a written agreement the plaintiff agreed to buy from the defendant a business known as Jaffer Soap factory together with the fixtures, fittings, chattels machinery, all equipment accessories and all other assets owned by the vendor on the premises of which the factory stood. The plaintiff alleged that he was induced to enter into the agreement by false and fraudulent representations of the defendant: (a) that he was transfer to able to the plaintiff’s name the tenancy which the defendant alleged it then had over Plot No. 88 Pugu Road Dar es Salaam; (b) that the plaintiff was entitled to use boxes and other equipment bearing the Trade Mark SIMBA. It was submitted for the defendant that the pleadings were defective in that there was no averment that the plaintiff was induced to enter into the contract by misrepresentation. 

 Held: (1) “The issue to be decided in my view narrows down to whether the fact that the plaintiff was induced to enter into the contract by fraudulent misrepresentation arises by necessary implication from the pleadings, and that the failure to plead such factor expressly is not fatal to the claim. I know of no specific authority to the point ………… as has often been observed, the day of the special pleader has gone and there is no longer any magic in words, though I must confess that there are authorities which still maintain that the technical niceties of pleadings must be observed and the failure to observe them could prove fatal to a cause.” 

(2) “………….. in this instant case the fraudulent representation alleged comprehend most of the substantive terms of the agreement. It cannot be gainsaid that the plaintiff was induced to enter into the agreement by the terms of the agreement, therefore as it is alleged that most of thease terms were fraudulently misrepresented, I consider that it necessarily follows that the plaintiff was induced to enter into this agreement by the alleged that most of these terms were fraudulently misrepresented, I consider that it necessarily follows that the plaintiff was induced to enter into this agreement by the alleged fraudulent misrepresentations set up, and that the omission to plead expressly that he was so induced is, to my mind, not fatal to the claim as pleaded.” (3) Submission overruled.