HANS NAGORSEN v BP TANZANIA LIMITED 1987 TLR 175 (HC)

 HANS NAGORSEN v BP TANZANIA LIMITED 1987 TLR 175 (HC)

Court High Court of Tanzania - Dar Es Salaam

Judge Kyando J

20 December, 1988 H

Flynote

Civil Practice and Procedure - Suing - Who may sue - Suing on behalf - Whether a letter

authorising a person to settle a claim authorises such person to file a suit. I

Civil Practice and Procedure - Plaint - Plaint avers that the

1987 TLR p176

KYANDO J

driver was "authorised to drive a vehicle" - Whether the same as "driving in the course of A

one's employment" - Whether plaint discloses cause of action.

-Headnote

The plaintiff's claim arises from an accident caused by the defendant or its agent duly B

authorised to drive the defendant's air gas fuel tanker, whose driver, while at the Dar es Salaam

International Airport, negligently and carelessly drove the said tanker and caused an accident

that resulted in extensive damages to the plaintiff's Cessna Air Craft. Full facts appear in the

judgment. C

Held: (i) Being "authorised to drive a vehicle" and "driving in the course of one's employment"

are not necessarily the same. A person may be authorised to drive, but use that authority for

frolics of his own;

(ii) the element of a driver being in the course of his employment is the D foundation

for his employer's liability and it must be specifically averred for the plaint to disclose a cause of

action against the employer;

(iii) authorisation to settle a claim is not the same as authorisation to appear, apply or do

any act in or to any court within the meaning of those words used in O. III E r.1 CPC. The

plaintiff's institution of the present suit was done without authority or power.

Case Information

Order accordingly. F

[zJDz]Judgment

Kyando, J.: At the commencement of the hearing of this case Mr. Raithatha, learned counsel for

the defendant, took several points of objection to the plaint presented by the plaintiff. The first

point relates to the title of the plaintiff; at the head of the plaint the plaintiff is shown to be

"HANS NAGORSEN (SUING AS G ATTORNEY) . . . . . . . . PLAINTIFF" and in para 1 it is stated

in part:

The plaintiff is an adult natural person, and duly appointed Attorney for Mr. Karl

Wepfler currently not available in Tanzania, with power to represent the said Karl Wapfler in

this suit. H

Mr Raithatha contended that from the above, it is clear that Hans Nagrosen is an agent and if

that is the case he has no cause of action against the defendant for an agent cannot I have a

cause of action of his own against a party. He contended that in this case only Karl

1987 TLR p177

KYANDO J

Wapfler himself could have had a cause of action against the defendant. A

The second point Mr. Raithatha raised was that the power of attorney given to Hans Nagorsen

by Karl Wapfler, a copy of which has been annexed to the plaint as Annexure "A", duly

authorises Mr. Nargosen to "settle" the claim; it does not authorise him to file a B suit on

Wapfler's behalf. He (Mr Raithatha) therefore contended that Mr. Nagorsen has no authority to

file this suit against the defendant.

Thirdly, Mr Raithatha contended that the Plaint has been signed by Mr. Maira. It has C not

been signed by the agent or by the plaintiff himself, Mr. Raithatha argued that this offends the

provisions of O.VI r. 14 of the C.P.C. He contended that even Nagorsen could not have signed it

because the power of attorney he holds only authorises him to settle the claims; it does not

authorise him to sign the plaint. D

Fourthly, Mr. Raithatha contended that under the "reliefs" prayed for the plaintiff has prayed for

interest before judgment at 32%. Mr. Raithatha argued that where interest before judgment is

prayed there must be in the body of the Plaint a cause of action upon E which the interest is

based. He contended that in the instant case the plaintiff states no reasons why he is seeking the

exorbitant interest of 32%. He said that if this rate of interest is the commercial rate then the

plaint should have averred existence of the custom of this kind of interest. F

Finally, Mr. Raithatha submitted that in para 4 of the plaint negligence is alleged against the

driver of the defendant. He said the defendant is therefore being sued on the basis of vicarious

liability. However, he contended, there is no averment in the plaint that the driver caused the

accident while in the course of his employment. He submitted that G failure to plead this

makes the plaint fail to disclose a cause of action against the defendant.

For all the above points Mr. Raithatha prayed that the plaint be rejected, with costs. He H said

he was not praying that it be dismissed, but that it be rejected.

In reply Mr. Maira for the plaintiff submitted, first generally, that Mr. Raithatha's submissions

have no merits whatsoever; he said they are an attempt at "hair splitting." He then argued that

Mr. Nagorsen has authority to conduct the case on behalf of the plaintiff in terms of O.III C.P.C.

He stated that he (Nargosen) has disclosed that he is I acting as an attorney and has disclosed

his principal. He said he cannot then see how he can be barred from suing as an

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KYANDO J

attorney. He said Annexure "A" to the plaint authorises him (Nagorsen) to pursue this A matter

and it is quite in order for him to file this suit on behalf of Mr. Wapfler.

Concerning the signing of the plaint Mr. Maira referred also to O.VII r.14 CPC. and argued that

the provisions in that rule do not exclude an advocate or agent from signing pleadings. B

As regards failure to aver that the accident was caused by the driver in the cause of his

employment with the defendant, Mr. Maira contended that this point is hollow as the cause of

action arises out of an accident caused by the motor vehicle belonging to the defendant, for the

benefit of the defendant. He contended that this has not been denied C in the written

Statement of Defence and that the only denial in the Written Statement of Defence is that the

defendant was negligent. He submitted that whether the driver was in the course of his

employment with the defendant at the time he caused the accident need not be averred in the

plaint but will be a matter to be proved by evidence D during the trial. He contended further

that there has been no plea made by the defendant that the driver was not acting in the course of

his employment when he caused the accident. He submitted that the words "duly authorised to

drive the defendant's Air E gas fuel tanker" (which caused the accident) in para 4 of the plaint

constitute a plea that the driver was acting int he course of his employment.

Finally, Mr. Maira submitted that in the unlikely event of my accepting Mr. Raithatha's

contentions or submissions, I should hold that all the defects in the plaint are curable. He F

said such defects do not go to the merits of the case, they do not destroy the facts of the case. He

said under Section 95 CPC. therefore I should dispense with the technical defects so that the

ends of justice are met. He also submitted that under O.VII CPC, as amended, a defective Plaint

cannot be rejected but it can be ordered to be amended. He prayed that the objections raised by

Mr. Raithata be overruled and the case be G proceeded with to hearing.

I will start with the contention that the Plaint should have averred that the driver caused the

accident while in the course of the defendant's employment. The relevant paragraph is

paragraph 4 in the Plaint, wherein it is alleged: H

The Plaintiff's claim arises from an accident caused by the defendant and/or its agent duly

authorised to drive the defendant's Air gas fuel tanker, who while at the Dar es Salaam I

International Airport negligently and/or carelessly drove the

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KYANDO J

said tanker and caused an accident that resulted into extensive damages of the said Cessna

A Air Craft thus grounding it from the 15th day off June, 1986, up to 14th January, 1987 when

it finally got repaired.

It is clear from the above that no plea that the driver caused the accident while in the B course

of his employment with the defendant has been made. The words "duly authorised to drive the

defendant's Air gas fuel tanker" do not necessarily convey the meaning that the driver was in the

course of his employment as Mr. Maira contended, C for the driver could have had a general

authority to drive the tanker but it cannot be concluded from that fact alone that he was driving

in the course of his employment when he got involved in the accident. Being authorised to

drive a vehicle and driving in the course of one's employment are not necessarily the same. A

person may be authorised D to drive, but use that authority for frolics of his own. I rule that

the plea that the driver was in the course of his employment has not been made in the plaint.

Was it necessary to make the averment in the plaint that the driver caused the accident E while

in the course of his employment with the defendant? As indicated already, Mr. Raithatha says it

was necessary and failure to aver renders the plaint fail to disclose a cause of action against the

defendant. Mr. Maira says it was not necessary as this element could be disclosed by evidence

during trial. Unfortunately neither counsel cited F any authority to support their respective

arguments. In the case of Fakurudin Ebrahim v The Bank of Tanzania [1978] LRT (Parts III &

IV), n. 45 which was for action involving vicarious liability for the negligent driving of an

employee, the driver who caused the accident was not joined as a party. In the District Court

the defendant successfully contended that the Plaint was bad for non-joinder. On appeal, after

G discussing and reaching the conclusion that it was not necessary to join the driver as a party,

the late Biron J., observed:

In my view, all that is necessary to set out in a plaint is the averment which if not

traversed H would entitle the plaintiff to judgment. And in a case of this nature all that is

necessary to set out to, that vehicle caused the damage to the plaintiff's vehicle belonged to the

defendant, that at the material time it was being driven by the defendant's servant or agent in

the course of his I employment, and that the accident ...... was caused by the negligence of the

driver (underlining supplied).

1987 TLR p180

KYANDO J

From the above passage in the Judgment of the late Biron, J., it is clear that it is A necessary for

the plaint to aver that the driver or agent was in the course of his employment when he drove

the vehicle which caused damage. In my view the element of a driver being in the course of his

employment is the foundation for his employer's liability and it must be specifically averred for

the plaint to disclose a cause of action B against him, i.e. the employer. As indicated already, in

this case this element was not averred and the plaint as rightly submitted by Mr. Raithatha, does

not disclose a cause of action against the defendant.

I will next consider the submission about the title of the plaintiff. It is shown at the top of C

the plaint that Nagorsen is suing as an attorney. The letter authorising him to so do is said to be

annexure "A" of the plaint. It says:

D Mr. Kar Wipfler,

c/o Transair

P.O. Box 40154

Dar es Salaam.

E 23/3/1987

M/S Robins Davies

(Africa) Ltd.,

P.O. Box 43675,

Nairobi

KENYA F

Dear Sirs,

Re: CONFIRMATION OF AUTHORITY FOR MR. H. NAGORSEN G

Reference is made to your letter B8125/DSR of 20th February, 1987. I herewith confirm, that

Mr. Hans Nagorsen, P.O. Box 9302 Dar es Salaam is acting on my behalf, and is authorised to

settle the claim of the damaged air craft. H

Since I am travelling a lot, I request you, to address all further correspondence to Mr. Nagorsen.

Yours faithfully,

(Sgd.) I

KARL WIPFLER.

1987 TLR p181

KYANDO J

As indicated earlier on above, Mr. Raithatha submitted that by the above letter, Mr. A

Nagorsen has been authorised only to "settle the claim", and not to act as an authorised agent in

terms of the provisions of Order III r. 1 of the Civil Procedure Code.

O.III r.1 CPC. provides: B

(1)Any appearance, application or act in or to any court, required or authorised to be

made or done by a party in any such court, may, except where otherwise expressly provided by

any law C for the time being in force, be made or done by the party in person or by his

recognised agent or by an advocate duly appointed to act on his behalf. (Emphasis supplied).

I would readily agree that authorisation to settle a claim is not the same as authorisation D to

appear, apply or do any act in or to any court within the meaning of those words as used in O.III

r.1 CPC. As I see it, Mr. Nagorsen was authorised to negotiate settlements out of court, of the

claim. He certainly was not, by the above letter, authorised to institute a suit or suits. The

institution of the present suit by him was done without authority or power therefore. E

Then there is the question of signing of the Plaint, O.VI r.14 CPC. provides:

14 Every pleading shall be signed by the party and his advocate (if any) provided that

where a party pleading is, by reason of absence or for other good cause, unable to sign the

pleading, it F may be signed by any person duly authorised by him to sign or to sue or defend

his behalf. (Emphasis supplied).

The plaint in this matter has been signed by Mr. Maira, the plaintiff's advocate. He has G

signed the verification also. While, in terms of the provisions of O.VI r.14 CPC. above, he could

have signed with the plaintiff, he cannot certainly sign a plaint alone, on behalf of the plaintiff,

as an advocate. His having signed the plaint in this case renders it (the plaint) therefore

defective. H

Then there is the point whether an agent can have a cause of action against a party on behalf of

his principal. O.VI r.14 CPC which I have reproduced above says a pleading, where a party is

unable to sign it, may be signed by any person duly authorised by him to sign or to sue or defend

on his behalf. The reference to suing in this rule shows that an I agent can be authorised to sue

on

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KYANDO J

behalf of his principal. Where there is such authority therefore there is no reason why he A

should not institute a suit on behalf of his principal and it cannot be said by so suing he cannot

have a cause of action against the defendant. However, in this case, as already held above, there

is no power conferred upon Nagorsen to sue as such. So he filed the suit as agent without having

been given power by his principal to do so and that was B wrong, and makes the plaint

defective.

Finally concerning the interest of 32% sought in the plaint, clearly the plaintiff should show if

such scale of interest is authorised by commercial custom or not. He has not C done so and this

also renders the plaint defective.

The above are all the points raised by mr. Raithatha and I have found that they are all valid

points. I uphold his objections to the plaint on the basis of these points. The question is what is

the result then? Mr. Raithatha as already shown, submitted that I D reject the plaint, with

costs. Mr. Maira, on the other hand, submitted that I merely direct that the plaint be amended

and invoked Section 95 of Civil Procedure Code.

Concerning the objection on the ground that the plaint does not disclose a cause of action

against the defendant because it does not aver that the driver was in the course of E his

employment when he was involved in the accident the proviso to O.VII r.11(a) CPC., as

amended, (or rejection of plaints) provides that if the court is satisfied that if the plaintiff is

permitted to amend the plaint, the plaint will disclose a cause of action it (the court) may allow

the plaintiff to amend the plaint subject to such condition as to F costs or otherwise as the court

may deem fit to impose.

In the instant case, I am satisfied that if the averment that the driver was driving in the course of

his employment is made in the plaint, it (the plaint) will disclose a cause of G action against the

defendant. Accordingly, I will order that the plaintiff should amend the plaint to include the

element I have just referred to above.

As regards the objections on the ground that Mr. Nagorsen as agent cannot have a cause of

action against the defendant and that he had no power of attorney to sue but H only to settle,

Mulla in Code of Civil Procedure, 13th Edition Vol.I, says at p.669:-

...It has been held that an objection that the institution of the suit is not within the

authority conferred by the power of attorney should be taken at the earliest possible opportunity

and I before issues are framed and that even when an objection

1987 TLR p183

KYANDO J

is so taken and sustained, the court should not reject the plaint but given an opportunity

to the A parties to rectify the defect. (Underlining supplied).

The above is the position under the Indian Code of Civil Procedure. As the provisions B to

which the above passage relates are similar to those in our CPC. I am of the view that the same

is the position in this country also. So I will not order a rejection of the plaint. Instead I will

order the plaintiff to rectify the defects to which the objections I have mentioned above relate.

Concerning the question of signing and that of the rate of interest, those also are defects C

which the plaintiff should rectify; I will not order that the plaint be rejected because of them

either.

In the final result then, the plaint is to be amended so that the defects pointed out herein are

rectified. The defendant is awarded costs for successfully raising his objections to the plaint. D

It is so ordered.

1987 TLR p183

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