Pop Vriend (Tanganyika) Ltd. v. Saburi Estates Ltd., Civ. Case 8-A-71; 30/10/71; Kwikima Ag. J.

 Pop Vriend (Tanganyika) Ltd. v. Saburi Estates Ltd., Civ. Case 8-A-71; 30/10/71; Kwikima Ag. J.

The plaintiff’s plaint alleged that he was claiming Shs. 27,511/40 from the defendant arising as follows: “goods sold and delivered and cash advancement at agreed terms of repayment”. A preliminary point was raised by the defendant that the plaint disclosed no cause of action as there was on averment therein that the goods were actually delivered and the money physically passed to the defendant.

            Held: (1) “A case was cited in support of this argument. Unfortunately that case was based on an action for trespass on goods. It has not been of much help for that reason. At the same time, a case based on contract – Maula Dad +Rose v. HenSingh 1969 H. C. D. 201 was cited to support the contention but I have studied it and found it to have the opposite effect. The point which that case decided was that “once the request is pleaded and the performance thereof alleged… Then the cause of action has ………… been disclosed.” That, in my opinion s the point Shs. 2, 7511/40, the price of goods sold and delivered and money advanced be claimed except if performance was actually done? The plaint cannot be said to be lacking the material fact that the goods were actually and he money actually advanced. I am for this reason unable to hold that the plaint does not disclose any cause of action. I will hold for the plaintiff and say that from the wording of the plait, performance has been pleaded.” (3) Preliminary objection overruled.