Karti Printing Works v. Tanga District Council Court of Appeal Civ. App. 18-D-70; Duffus, P., Law and Lutta, JJ. A.
The plaintiff firm filed an action against the defendant council for Shs. 23,756/75 being payment for medical cards sold and supplied to the defendant council. The plaintiff firm supplied the cards at the oral request of an Executive Officer of the defendant council. When the cards were supplied the defendant refused to accept them on the ground hat they had not been ordered officially. After the initial refusal a local purchase order for the same purchase was issued to the plaintiff by the defendant. However, the plaintiff failed to adduce
L.P.O. when demanding payment as it was lost by then. At the hearing the following issues were agreed:- (a) Whether the plaintiff sold and delivered to the defendants goods as per plaintiff’s invoice; (b) Whether the price was agreed and reasonable; (c) Whether the price was payable within seven days of the end of the month of invoice; (d) Whether the plaintiff was entitled to interest out-standing account and if so at what rate; (e) Whether the proper prescribed procedure was followed by the defendant in placing the orders with the plaintiff and with what effect; and (f) whether the suit was premature or maintainable . The High Court of
Held: (1) per Lutta, J. A. “Acceptance is defined in section 37 of Cap. 214 and the question here is whether on the facts of this case there was acceptance of the goods within the meaning of that section. .. The (defendant) did not deny that the goods were delivered to it and did not explain why, for two months, no action was taken to intimate to the plaintiff that it rejected the goods ….. “In my view if the defendant had not received the goods, it is reasonable to expect, after receiving demand letters, to have written within a reasonable time, wither denying having received the goods or rejecting them. It was not until 30th May, 1967, when it wrote rejecting the goods. In my opinion the defendant had reasonable time within which to reject the goods and failure to do so constitute acceptance within the meaning of section 37 of Cap. 214”. (2) (Per Lutta. J. A.) “With regard to the question of note or memorandum in writing of he contract [the Counsel] submitted that the oral agreement between Mr. Rameshi Patel and Mr. Kasambala [the Executive Officer] was enforceable as an L.P.O. was subsequently issued. In my view it sounds highly improbable that the Executive Officer of a district council like the defendant would arrange with a firm like the plaintiff, with whom, as the evidence indicates, it had dealings previously, to supply goods unless there was an intention that their agreement should be attended by legal consequences. As this was a matter of business, it must be assumed that the parties intended legal consequences to follow – see Rose and Frank Co. v. J.R. Crompton and Bros. Ltd – (1923) – 2 K. B. 261 at page 282. However, the proposition would not apply in the instant case unless the requirements of section 6 of Cap. 214 are complied with. In my view once there has been acceptance within the meaning of section 37 of Cap. 214 the requirements of section 6 have been complied with and it is not necessary to consider the provisions of subsection 3 of the latter section. In other words there is no need to consider the question of a note or memorandum in writing of the contract. It seems to me that section 6(3) of Cap. 214 provides for en-for cement of a contract if the requirements contained in it are complied with, even though there may be no acceptance within the meaning of that word as defined in section 37. Reading the two sections together, that is, section 6(3) and 37 of Cap. 214 my opinion is that if there is acceptance within the meaning of section 37 then the requirements of section 6 have been complied with and if there
Is no acceptance within section 37 there may be an act which amounts to acceptance within section 6(3) which will render an oral agreement enforceable. In these circumstances I am of the opinion that there was a contract which was enforceable and the plaintiff was entitled to be paid for the goods ordered by and delivered to the defendant”. (3) (Per Law, J.A.) “The note or memorandum relied on by the appellant is a local purchase order …. Issued by the respondent …. About 9 months after the verbal order for the goods had been placed. But it would seem that the note or memorandum need not be contemporaneous with the contract, so long as it was in existence before the suit was filed, see Chalmer’s “Sale of Goods”, 12 Ed., page 30. The difficulty which lies in the way of the appellant is that the local purchase order has been lost and cannot therefore be produced for examination as to whether it constituted a sufficient note or memorandum for the purposes of section 6 of the Sale of Goods Ordinance. To be sufficient, a note or memorandum must contain a description of the parties and of the goods sold, the price (if agreed) and all other substantial terms of the contract, and it must be made and signed by or on behalf of the part to be charged, in this case the respondent. The first question to be decided, where as in this case the note or memorandum has been lost, is whether secondary evidence can be given of its existence and contents. Strangely enough there seems to be no authority on this point. In my opinion, section 67(1) (c) of the Evidence Act applies to a not or memorandum which has been destroyed or lost and secondary evidence of the contents of such a document can be given …. The vital question in this appeal now arises – where the contents of this document proved by secondary evidence, and if so did it constitute a note or memorandum for he purposes of section 6 of the Sale of Goods Ordinance …. But failure to produce (L.P.O.) which has been destroyed or lost cannot, in my view, operate so as to deprive the seller of goods to a local authority under an otherwise valid and enforceable contract of the right to be paid for those goods. Such a proposition would in my view, be contrary to elementary principles of equity and commercial morality. That a local purchase order was issued by the respondent cannot be doubted, it is referred to in the respondent’s telegram of 17th February, the authenticity of which is not disputed, as my L.P.O. No. 92022 of 13/12/67. As it was sent to the appellant, it must have sufficiently described the appellant. …. (Therefore) the existence of a sufficient not or memorandum …. Was established by secondary evidence in this case.” (4) (Per Lutta, J.A.) ……. “The next question in the appeal concerns notice under section 152(1) of Cap. 333. The learned judge held that the plaint was premature and was not maintainable on the ground that the suit was commenced before the expiry of at least one month after written notice on intention to sue was given, as required by section 152(1) of Cap. 333. {The Counsel] submitted that as the defendant had failed to plead non-compliance with section 152(1) of Cap. 333 and admission of service of the notice of intention to sue amounted to a waiver of the requirement under that provision.” (5) (Per Lutta. J. A.) “The next issue in the appeal was interest claimed by the plaintiff from the date when demand for payment was made till the date when the suit was filed at the rate of 12% per annum. The learned judge held that no usage, agreement or custom of market has been proved. I agree with the learned judge.” (6) Appeal Allowed.
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