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.

-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 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.

Case Information

Appeal allowed.

No cases referred to.

Kapoor, for appellant 

Kinabo, for respondent.

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

(i) Gratuity I 24,629.00

(ii) Salaries for the unexpired 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 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 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 honorable court.

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: 

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 be given as the Court may think just to the same extent as if it had been asked for.  And the same rule shall apply to any relief claimed by the defendant in his written statement of defence. 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. 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. 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 the handwritten amendments, paragraph 9 on the original plaint reads as follows: 

(9)The cause of action arose at Arusha, thus within the jurisdiction of this honourable Court. Wherefor the plaintiff prays for judgment as follows:

(i) Plaintiff claim for shs.62,535.00

(ii) Costs

(iii) Any other relief.

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 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 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.

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 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 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 Although no written agreement was in fact signed by the parties, there 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 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. 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