ARUSHA INTERNATIONAL CONFERENCE CENTRE v DR. EDWARD CLEMENS 1989 TLR 154 (CA)

 

ARUSHA INTERNATIONAL CONFERENCE CENTRE v DR. EDWARD CLEMENS 1989 TLR 154 (CA)

Court Court of Appeal of Tanzania- Arusha

Judge Kisanga JJA, Ramadhani JJA and Mfalila JJA

7 September, 1989 B

Flynote

Civil Practice and Procedure - Plaint - Relief sought - Plaint must show reliefs sought

- Effect of non-compliance - O.VII Rule 7 Civil Procedure Code, 1966.

Labour Law - Gratuity - Condition for payment of gratuity. C

-Headnote

In the trial High Court in his statement of defence, the appellant (then defendant)

pleaded that the suit filed by the respondent (then plaintiff) against him claiming

damages for breach of contract of service should be dismissed as it did not show the

reliefs sought by D the respondent. This, he submitted, offended the provisions of

Order VII rule 7 of the Civil Procedure Code, 1966.

Held: (i) Where the plaint does not comply with the provisions of Order VII Rule 7 of

E the Civil Procedure Code 1966 which requires every plaint to state specifically the

reliefs which the plaintiff claims, the plaint will be considered to be defective unless

amended before the conclusion of the proceedings and with leave of the court;

(ii) gratuity is only payable on successful completion of the contract period of

employment. F

Case Information

Appeal allowed.

No cases referred to.

Kapoor, for appellant G

Kinabo, for respondent.

[zJDz]Judgment

Kisanga, Ramadhani and Mfalila, JJ.A.: The respondent Dr. Edward Clemens filed H

a suit against the appellant - the Arusha International Conference Centre, his

erstwhile employers claiming damages for breach of a contract of service. The claim

totalling shs.62,535/= was made up as follows:

(i) Gratuity I 24,629.00

(ii) Salaries for the unexpired

1989 TLR p155

KISANGA JJA, RAMADHANI JJA AND MFALILA JJA

period of 12 months i.e. July, 1981 to June, A 198231,875.00

(iii) 3 months salary in lieu of notice 7,696.00

(iv) Leave pay 14 days 4,058.00

(v) Transport costs for family and personal effects for Arusha to Moshi

B 4,000.00

The appellant denied the claim, stating that it lawfully terminated the contract of

service C with the respondent in accordance with the terms of the contract

something it was entitled to do. The

High Court after hearing evidence, held that there was a contract of service between

the appellant and the respondent which the appellant terminated not only unlawfully

but maliciously. Judgment was entered for the respondent as claimed minus the claim

for 3 D months salary in lieu of notice. This the court found had already been paid

by the appellant. The respondent was awarded a total of shs.54,565.50 in damages.

The appellant lodged this appeal, complaining in the first ground of appeal that the E

learned trial judge erred in holding that the respondent had complied with the

provisions of Order VII Rule 7 of the Civil Procedure Code 1966 in the pleadings.

This complaint has a long history and it is as follows: Apart from the original record

where the plaint bears some handwritten alterations, the rest of the records show

paragraph 9 of the F plaint in the following terms:

(a) the cause of action arose at Arusha, thus within the jurisdiction of this

honourable court. G

There was no prayer for any relief. Thus when the appellant filed the written

statement of defence, he pleaded in paragraph 7 that the whole suit should be

dismissed with costs as it does not show reliefs the plaintiff requires the court to grant

him, and that this offended the provisions of O.VII R.7 of the Civil Procedure Code

which provides: H

Every plaint shall state specifically the relief which the plaintiff claims either

simply or in the alternative, and it shall not be necessary to ask for general or other

relief which may always I

1989 TLR p156

KISANGA JJA, RAMADHANI JJA AND MFALILA JJA

be given as the Court may think just to the same extent as if it had been asked

for. A

And the same rule shall apply to any relief claimed by the defendant in his written

statement of defence. B

There was no reply to this complaint up to the time both sides closed their respective

cases. But in his submissions, Mr. Kapoor raised the point again stating that the

provisions of O.VII Rule 7 are mandatory and since the plaintiff claimed no relief at

all, C his claim must fail. He cited a commentary in the book by Mocha on the Law

of Pleadings in India 11th Ed. dealing with an identical provision to our O.VII Rule 7.

It is stated at page 247:

The relief sought should be accurately worded and it is risky to use loose or

inartistic D language as there is always a danger of the Court throwing out the case,

although Courts should not be too strict if it can be fairly inferred what the plaintiff

really means - But whatever reliefs he claims must be stated in the plaint specifically

as relief claimed in the plaint cannot be supplemented orally. E

The plaintiff omitting a relief will therefore have to make an application for

amendment which cannot be allowed after limitation. Each relief should be clearly

and separately stated and two or more reliefs should not be mixed together. F

In her judgment, the learned trial judge dealt with this point and resolved it in

pleading of the respondent in the following words:

In paragraph 9 of the plaint the plaintiff prays for judgment for the sum of

shs.62,535/= costs G and any other relief. I specifically spelt out paragraph 7 and 9 of

the plaint in order to overrule the contention of the learned defence counsel in his

submission that the suit should be struck out for offending the requirements of O.VII

Rule 7. Paragraph 9 of the plaintiff specifically prays H for judgment in the sum of

shs. 62,535/=, so the plaintiff has fulfilled the requirements of Order 7 Rule 7 of the

1966 Civil Procedure Code ...

This is the finding which is the subject of the attack in the first ground of appeal, a

finding I which undoubtedly was influenced by the handwritten amendments to

paragraph 9 of the plaint. With

1989 TLR p157

KISANGA JJA, RAMADHANI JJA AND MFALILA JJA

the handwritten amendments, paragraph 9 on the original plaint reads as follows: A

(9)The cause of action arose at Arusha, thus within the jurisdiction of this

honourable Court. Wherefor the plaintiff prays for judgment as follows: B

(i) Plaintiff claim for shs.62,535.00

(ii) Costs

(iii) Any other relief. C

On the face of it therefore paragraph (9) seems complete and makes the plaint comply

fully with the requirements of O.VII Rule 7. But there are practical difficulties which

unfortunately were not dealt with by the trial judge before making the above finding.

It is quite clear that this amendment was made very much later in the proceedings,

for if it had D been there from the beginning, the written statement of defence could

not have contained paragraph 7, and it had contained paragraph 7, then counsel for

the plaintiff would have corrected the impression particularly when the prayer was

for dismissal of the suit for non-compliance. The issue was raised again during the

final submission, yet E again there was no response from the plaintiff.

At the hearing of this appeal, all Mr. Kinabo, Counsel for the respondent could say

was that he does not remember what happened which made him make the

handwritten F amendments. The position then is quite clear to us. The handwritten

amendments were inserted either during or at the end of the hearing, there was

therefore no reliefs claimed at the time the plaint was filed, at the close of the

pleading and at the start of the hearing. There is nothing in the record to show that

an application to amend the plaint was made G at any stage of the proceedings. The

plaint was therefore amended without leave of the Court under O.VI rule 17 of the

Civil Procedure Code. The result is that although the amendment embodying a prayer

for reliefs is physically on the plaint, it is legally not there. We therefore upheld Mr.

Kapoor's submission that the plaint did not comply with H the provision of O.VII

Rule 7 and since there was no application to amend, the claim could not be

maintained in the absence of reliefs sought by the plaintiff. Mr. Kinabo conceded that

O.VII Rule 7 was in these circumstances not complied with, but he submitted that the

consequences of this non-compliance would depend on the way the I plaint was

framed. if the plaint is framed in such a way that the

1989 TLR p158

KISANGA JJA, RAMADHANI JJA AND MFALILA JJA

other side could understand the nature of the claim, then the error is curable. He

added A that in the present case the plaint is clear that the plaintiff was claiming

specific damages amounting to shs.62,535/=, and asked this Court to cure the error

under the provision of Rule 108 of the Court of Appeal Rules, 1979. But on our part

we think that B the existence of a valid claim is a condition precedent for the use of

the powers under Rule 108. In the present case there was no valid claim by reason of

non-compliance with O.VII Rule 7.

Although this finding would have disposed of the appeal, we wish to consider the

second C arm of the appeal raised in the Memorandum and argued by Mr. Kapoor at

the hearing. It was contended that the learned trial judge erred in holding that the

appellant had breached the contract of employment and that she ought to have held

that the appellant was entitled to terminate the contract of employment in

accordance with the D provisions of Clause 13(1) of the said contract. Mr. Kapoor

contended that since the employment was lawfully terminated in accordance with

the terms of the contract, the appellant is not liable in damages and the respondent is

not entitled to any gratuity which is only payable on successful completion of the

contract period of employment, in this case 24 months. E

On the other hand Mr. Kinabo argued that the relationship between the parties was

regulated by an oral contract similar to the previous oral contract which ended on

30/6/80. He said that contrary to the appellant's allegation of the existence of a

written F contract embodying Clause 13 under which either party could terminate

the contract before the expiry of the contract period, there was no such written

contract. There was only an oral contract similar to the previous contract under

which the appellant could not terminate the contract of employment before the

expiry of 24 months. he added that G since the appellant had not terminated the

respondent's employment at the end of the first contract on 30/6/80, he was not free

to relieve him of his duties before the end of the 24 months contract period.

We thought this was a novel idea that a contract of employment oral or written could

H bind the parties to the extent suggested by Mr. Kinabo. Indeed after it was decided

not to employ the respondent on permanent and pensionable terms on account of his

age, his previous employment was converted into a contract, a the same time a new

contract was offered effective 1/7/80 (See Exh.P.2) and he was advised that the terms

of the contract I would be communicated to him at a later date. This was done on

31/3/81

1989 TLR p159

(See Ex.D.3). Although no written agreement was in fact signed by the parties, there

A was nothing in the oral contract of the parties to suggest that the appellant could

not terminate the oral contract in the way he did. This being the case we are satisfied

that by giving the respondent three months salary in lieu of notice, the appellant

lawfully terminated the contract of employment. We agree with Mr. Kapoor that the

right to the B payment of gratuity, only arises at the end of the successful

completion of the contract period of employment. The respondent has therefore no

claim against the appellants.

For these reasons we allow the appeal and set aside the judgment and orders of the

High Court. C

With regard to costs we order that each side shall bear its own costs here and in the

Court below, because we are satisfied that the respondent was misled into believing

that he had a valid claim. This belief was based on the Telex Message Exh.P.3 from

the D Board Chairman directing the appellant to renew the respondent's contract.

But before even replying to this directive the appellant terminated the contract.

E Appeal allowed.

1989 TLR p159

F