Kanti Printing Works v. Njombe District Council Civ. Case 2-D-69; 5/12/69; Mustafa J.

Kanti Printing Works v. Njombe District Council Civ. Case 2-D-69; 5/12/69; Mustafa J.

The plaintiffs Kanti Printing Works sued the Njombe District Council for goods sold and supplied. The Local Government Ordinance (Cap. 333) requires that summons and other authorized documents be served on the Chairman or the Clerk to the local authority being sued. The plaintiffs served the summons on an Executive Officer of the defendant Council which the defendant argued, was irregular. The defendants also argued that by virtue of section 153 (1) of the Local Government Ordinance a suit  commenced against a local authority for an act done in pursuance or execution of an Ordinance or of any public duties or authority had to be commenced within twelve months of the act done in pursuance or execution of an Ordinance or of any public duties or authority had to be commenced within twelve months of the act and therefore because plaintiffs’ action was brought twelve months after the cause of action had arisen, the suit was barred by limitation.

            Held: (1) “I am satisfied that an Executive officer would be equivalent to a clerk of an authority, and I hold the summons was properly served on the District Council. Similarly, I am satisfied that the notice complied with the statutory requirements as mentioned in section 152 of Cap. 333. In paragraph 7 of the plaint, the plaintiffs have alleged that they have only served notice on the defendants demanding payment, and, is my view, that was specifically pleading service of the statutory notice, if such specific pleading is at all necessary.” (2) “I will now deal with the issue as to whether the suit was barred by limitation. Mr. Patel refers to section 153 of Cap. 333. it is not in dispute that among the functions and duties of the Njombe District Council are: (1) to build, equip, maintain or manage schools and educational institutions;  and (2) to grant sums of money towards the establishment equipment or maintenance of schools and educational institutions. These are some of the functions of a local government authority, as mentioned in section 52 of Cap. 333, and by Government Notice No. 251 of 1962, as amended by Government Notice No. 379 of 1966, the above two duties (among others) were to be preformed by the Njombe District Council. It has, therefore, been argued that since the

debt was incurred by the Njombe District Council for the purchase of educational exercise books or articles of a similar nature, the defendants in so doing were carrying out – as not done in pursuance or execution or intended execution of an Ordinance or of any public duties or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance, duty or authority,” and therefore this suit by the plaintiffs against the Council is governed by the provisions of section 153 of the Ordinance, and the period of limitation prescribed, therefore, is twelve months, and not  the usual three years for a contract fro goods sold and supplied. In my view, the wording of section 153(1) would require careful scrutiny. It seems the wording is very similar to section 1 of the Public Authorities Protection Act, 1893, in England. It will be seen, that the words an act done in pursuance or execution or intended execution of an Ordinance or of any public duties or authority in section 153 are very similar to the words in section 1 of the Public Authorities Protection Act has been the subject of numerous judicial interpretations, and I will refer to a case, Bradford Corporation v. Nyers, reported in 1916 A. C. 242, which went to the House of Lords. In that case, a municipal corporation was authorized by act of Parliament to carry out the undertaking of a gas company and was bound to supply gas to the inhabitants of the district. The corporation was also empowered to sell the coke produced in the manufacture of the gas. The corporation contracted to sell and deliver some coke to the plaintiff, and by the negligence of their agent, the coke was shot through the plaintiff’s shop window. The plaintiff commenced a suit for negligence against the corporation more than six months afterwards. The authority pleaded section 1 of the Public Authorities Protection Act. It was there held hat the act complained of was not an act done in the direct execution of  a statue or in the discharge of a public duty or the exercise of a public authority, and that the Public Authorities Protection Act afforded no defence to the action. The Lord Chancellor, Lord Buckmaster, in his speech  said, inter alia:- …… the words of the section themselves limit the class of action, and show that it was not intended to cover every act which a local authority had power to perform. In other words, it is not because the act out of which an action arises is within their power that public authorities enjoy the benefit of the statute. It is because the act is one which is either an act in the direct execution of a statute, or is the discharge of a public duty, or the exercise of a public authority.  I regard these latter words as meaning a duty owed to all the public alike or an authority exercise of a public authority. I regard these latter words as meaning a duty owed to all the public alike or an authority exercised impartially with regard to all the public.  It assumes that there are duties and authorities which are not public, and that in the exercise or discharge of such duties or authorities this protection does not apply. This distinction is well illustrated by the present case. It may be conceded that the local authority were bound properly to dispose of their residual products; but there was no obligation upon them to dispose by sale, though this was the most obvious and ordinary way. Still less was there any duty to dispose of them to the respondent …. (3) “Here in this case, Njombe District Council purchased certain educational books or equipment for its schools from the Kanti Printing Works, and in my view this transaction was incidental to the discharge of its public duty to provide education for the inhabitants of its district. In my view, the Council cannot pray in aid the provisions of section 153(1) of Cap. 333 in the circumstances.”  Preliminary points overruled.