FRANCIS ANDREW v KAMYN INDUSTRIES (T) LTD 1986 TLR 31 (HC)

 

FRANCIS ANDREW v KAMYN INDUSTRIES (T) LTD 1986 TLR 31 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Bahati J

10 April, 1986

CIVIL CASE 88 OF 1982 F

Flynote

G Civil Practice and Procedure - Pleadings - Interest prior to the filing of the suit - Matter of

substantive law - Must be pleaded in the body of the plaint.

Civil Practice and Procedure - Jurisdiction - Pecuniary jurisdiction of the High Court - Claim

shown in the plaint is shs.14,549 - Prayer to the plaint shows sh. 8,713/86 is claimed as interest

prior to the filing of the suit - Whether High Court has jurisdiction to entertain such a suit. H

-Headnote

The plaintiff filed a suit in a High Court against the defendant. The plaint showed that the

amount claimed was shs.14,549/=. At the prayer to the plaint the plaintiff had tucked in

shs.8,713/86 being interest from July, 1975 to I January, 1981, i.e., a period of 7 years

1986 TLR p32

BAHATI J

A prior to the filing of the suit. Counsel for the defendant raised the

point of jurisdiction on the part of the High Court arguing that the amount claimed, shs.14,549/=

was below shs. 20,000/= and therefore the Court lacked jurisdiction to entertain the suit. The

amount of shs.8,713/86 shown at the prayer to the plaint did not form part of the plaint unless it

appeared in the body of the plaint.

Held: (i) Interest prior to the filing of the suit is a matter of substantive law and it must be

specifically pleaded;

(ii) the amount claimed in this suit is only shs.14,549/= which is below the jurisdiction of

the High Court.

Case Information

Suit dismissed.

Case referred to:

1. Yusuf Abdallah v French Somaliland Shipping Co. [1959] E.A. 25

El-Maamry, for the plaintiff.

Uzanda, for the defendant

[zJDz]Judgment

Bahati, J.: Mr. Uzanda learned counsel, for the defendant raised the point of jurisdiction on the

part of this court arguing that since the amount claimed is below Shs.20,000/= this court had no

jurisdiction to entertain the suit. Mr. Uzanda pointed out that the value of the plaintiff's claim

was shown in paragraph 5 of the plaint which was Shs.14,549/=, but at the prayer to the plaint

the plaintiff had tucked in Shs.8713/86 being interest from July, 1975 to January, 1981. This is

interest of 7 years prior to the filing of the suit. Mr. Uzanda submitted further that the law

relating to interest prior to the filing of the suit was clear namely that interest prior to the filing

of the suit is a matter of substantive law and not procedural law and therefore such interest must

be pleaded in the body of the plaint. It cannot be tucked in the prayer like interest after filing

the suit. Mr. Uzanda referred the court to Mulla - Code of Civil Procedure - 12th Edition page

145 and also the AIR commentaries 6th edition volume 1 pg 6121. Mr. Uzanda submitted that

the plaintiff had not pleaded the sum of 8713.86 in the plaint nor was it known on what basis he

was claiming it. Interest prior to filing of the suit, Mr. Uzanda submitted, could come under

three headings namely - by agreement, by mercantile practice, or by statute. But in the plaint

this was not shown, he said. He submitted

1986 TLR 33

BAHATI J

A further that even if the case were to be heard on its merits it would be impossible for the

court to award such interest because having not been pleaded, it could be argued. Mr. Uzanda

concluded that the plaintiff had asked the court to adjudicate on Shs.14,549/= which is far below

the pecuniary jurisdiction of the court; and as such the suit should be dismissed with costs. B

With regard to the counter claim, Mr. Uzanda argued that it had been filed nearly 2 years ago

and no defence to it had been made by the plaintiff nor was there any application for filing any

defence. He prayed that judgment be entered for the defendant as prayed in the counterclaim.

C

In reply to this argument Mr. El-Maamry, learned counsel for the plaintiff asked for an

adjournment to prepare his reply and his prayer was granted. When the matter came up for

hearing about a month later, Mr. El Maamry submitted that the relief paragraph was part of the

plaint and that although there was no paragraph claiming interests, interest was D properly

claimed in the relief. In the alternative, Mr. El-Maamry applied orally to amend the plaint to

incorporate a paragraph on the interest before filing the suit.

With regard to the defence to the counterclaim, Mr. El-Maamry conceded that he had not yet

filed one nor asked for extension of time to do so. But he applied for leave to file it now because

it was ready. E

Mr. Uzanda, replying to Mr. El-Maamry's arguments said that his main argument which was

that the interest prior to the filing of the suit is a matter of substantive law and must be

specifically pleaded because there are several grounds on F which it can be claimed. He said

that this argument had not been answered by his learned friend. He went on to elaborate that

the interest might be a subject of an agreement or based on mercantile usage or based on a

statute. In G each case the basis of the interest had to be specifically pleaded. Mr. Uzanda cited

yet another authority on this point namely Yusuf Abdallah v French Somaliland Shipping Co.

[1959] E.A.25 at 28

With regard to the argument of Mr. El-Maamry that the relief is part of the pleading, Mr.

uzanda submitted that the relief is based on the pleading and it is not part of the pleading. Mr.

Uzanda referred the court to Mulla on Code of Civil H Procedure, 12th Edition pg. 96 where it

is stated that a relief not based on the pleading should not be granted. With regard to the

application by Mr. El-Maamry to amend the plaint, Mr. Uzanda submitted that as the issue of

jurisdiction I had been raised it had to be decided first. If the Court

1986 TLR p34

BAHATI J

A finds that it has no jurisdiction then it cannot have power to do

anything else except to dismiss the suit. Finally with regard to the application by Mr. El-

Maamry for leave to file a defence to the counter claim, Mr. Uzanda submitted that no

reasonable ground had been given why even an application for time to file the defence was not

made almost two years since the counterclaim was filed. He therefore prayed the suit B to be

dismissed with costs and the Counterclaim to be either allowed with costs or the defendant be

allowed to prove it ex-parte by affidavit.

The 1st issue involved here is one of jurisdiction. The Plaintiff claims that the court has

jurisdiction whereas the defendant C claims otherwise. Having gone through Mulla on the

Code of Civil Procedure, 12th Edition on page 145, I have come to agree with Mr. Uzanda that

interest prior to the filing of the suit is a matter of substantive law and it must be specifically

pleaded. In this case the interest from July, 1975 to January, 1981 has not been pleaded

anywhere but, in the words of D Mr. Uzanda, it has been tucked in the prayer for relief. I

agree with Mr. Uzanda that as it is necessary to plead on what basis the interest sought is being

claimed; and there are three heads on which such interest may be based, namely E mercantile

practice, statute, or implied agreement or contract, the interest shown in the relief cannot be

allowed to stand so as to swell the amount claimed from 14,549/= to over 20,000/=. The only

relief which can be claimed is what has F been pleaded in the plaint. It follows therefore that

the amount claimed in this case is only Shs. 14,549/= which is below the jurisdiction of this

Court. In terms of Section 13 of the Civil Procedure Code this court has no jurisdiction to try

the suit.

Mr. El-Maamry applied orally to be allowed to amend the suit. I do not think that such leave

can be granted here G because the plaintiff was aware of the defect in the plaint through the

written statement of defence but he chose to do nothing. It would not be just to the defendant

to grant such leave.

Finally with regard to the counter claim, there cannot be any question of filing a defence to it at

this late hour as the plaintiff did not do so for almost two years nor did he apply for extension of

time to file any defence. The defendant is H granted leave to prove the counterclaim ex-parte

by the affidavit as prayed. The plaintiff's suit is therefore dismissed with costs.

I Appeal dismissed.

1986 TLR p35

A