The United Africa Company of Tanzania Ltd. v. Manji’s Ltd. Civ. App. 7-D-70; 10/6/70; Georges, C.J.

The United Africa Company of Tanzania Ltd. v. Manji’s Ltd. Civ. App. 7-D-70; 10/6/70; Georges, C.J.

This was an appeal from the judgment of the magistrate, Dar es Salaam rejecting a plaint on the ground that it disclosed no cause of action and that it did not set out facts to show that the Court had jurisdiction. An application amend the plaint by inserting words, the absence of which had made it defective was not allowed. The relevant paragraph stated that: “On or about the 24^th day of May, 1966, the Plaintiffs agreed to buy from the Defendants by way of trade in and the Defendants agreed to sell to the Plaintiffs a used Bedford Tipper motor vehicle, Registered No. TD 338, for the sum of Shs. 13,500/-. It was an express condition of he said agreement that the said motor vehicle was in good mechanical and general condition and immediately ready to take the road and capable of traveling on the roadway from one destination to another’. The amendment sought was to add the words “at Dar es Salaam” immediately after the words and figures “May, 1966” and before the words the Plaintiffs”. In paragraph 4 of the plaint there was an averment in the alternative, of a warranty of roadworthiness in respect of the lorry. Paragraph 5 stated that the plaintiff had delivered a new lorry to the defendant- part of the consideration for this being the trade in. paragraph 6 alleged that the vehicle traded in was defective and gave particulars of the defects. Paragraph 7 stated that the new lorry had been handed to the defendant at Mbeya about the end of May 1966. Paragraph 8 alleged that the traded in lorry was eventually sold for Shs. 2,000/-. Paragraph 9 claimed as damages the difference between the trade-in price of the old lorry and the eventual sale price and incidental expenses for towing and storage. Paragraph 10 stated that the cause of action had arisen in Dar-es-Salaam. The value of the suit for jurisdiction was stated at Shs. 12,200/- and the formal claim followed. The issues for decision were (a) Whether in order to disclose a cause of action in contract one must plead facts showing where the cause of action arose; (b) Whether failure to plead facts on which to found jurisdiction must result in a rejection of the plaint or whether this can be remedied by amendment; (c) and whether a plaint ought not to be rejected; where it did not disclose a cause of action but there was an application to the Court for amendment and the amendment, if granted, would remedy the defect.

            Held: (1) “I do not think that one has to plead facts to show where a cause of action arose in order to show that one does have a cause of action. Sub-rule (e) of Order VII rule 1 specifies that the plaint must contain particulars of “the facts constituting the cause of action and when it arose.” It does not specify an obligation to particularize the place where it arose. I do not think that on general principles the place where a cause of action in contract arose can be said to be an essential ingredient of the action. The Law of Contract Act Cap. 433 do not specifically define the term contract. It does give some guidance in section 10 which states: - “All agreements are contracts if they are made by the free consent of the parties competent to contract for a lawful consideration and with a lawful object and are not hereby expressly declared to be void.” Paragraphs 1,2,3,4 and 5 of the plaint clearly allege an agreement between parties, apparently competent to contract. He consideration alleged was apparently lawful as was the object of the agreement. It did therefore disclose a contract. Paragraph 5 alleged breach of that contract and gave particulars of the breach. Paragraph 9 alleged the damage. These disclosed a complete cause of action in contract and the plaint should not have been rejected on the ground that no cause of action had been disclosed.”  (2) As regard the second issue: - “Order VII rule 1 (f) states that the plaint shall contain the

facts showing  that the court had jurisdiction. Order VII rule 11 sets out the case in which a plaint shall be rejected: - where no cause of action is disclosed, where the relief claimed is undervalued and the plaintiff refused to correct the valuation and where the suit appears from the statement in the plaint to be barred by law. None of these apply to the circumstances of the case. It is not, therefore, laid down in the Civil Procedure Code that a plaint should be rejected if it does not disclose facts to show that the Court has jurisdiction. On the other hand Order VI rule 17 specifically empowers the court at any stage of the proceedings …. (to allow amendments of the pleadings).” “Reading the judgment of the learned Resident Magistrate it would appear that he did not consider by itself this issue as to whether the plaint should be rejected because it did not plead facts showing jurisdiction. He dealt with it together with the question of failure to disclose a cause of action and he considered himself bound by authority to reject a plaint once a cause of action had not been disclosed. Had he concluded that there was a cause of action and that the only question was one of jurisdiction I am satisfied that he would have held that this was a proper case in which to exercise the powers contained in Order VI rule 17 and allow the amendment so that the substantive issue between the parties could be determined. These reasons are sufficient for the purpose of allowing the appeal with costs which I do.” (3) As regards the third issue: (Obiter) “It has always seemed to me unfortunate that there should be rigidity in a procedural matter when the basic purpose of any procedural rule is to facilitate the prompt and total determination of substantive issues between parties. Why should it have been intended that a plaint should be rejected because it disclosed no cause of action when a minor amendment could remedy the defect and enable the Court to proceed with the important business of determining the real dispute? Except in cases where there s no cause of action no matter how pleaded, failure to disclose a cause of action in a plaint is the result either of oversight or incompetence on the part of the advocate preparing it. The Legislature could not have seriously intended that the client should suffer for his choice of advocate or at best have his claim converted from what it was to one for negligence against his professional adviser for whatever loss he may have suffered as a result of the rejection of the plaint.” The court’s attention was drawn to a comparatively recent decision in India – Ahmed Hossein v. Mt. Chembelli and others A.I.R. (38) 1951 Calcutta 262 in which Sarkar J. concluded, convincingly, that the provisions of Order VII rule 11 were not mandatory and that the Court could, by virtue of the power conferred by Order VI rule 17, amend a plaint where it disclosed no cause of action in order to remedy that defect. However, in Hassanali Dharamisi Hasmni v. National Bank of India (1937) 4 E.A.C.A. 55 it was held otherwise. In that case “the trial Court dealt with an application to amend and granted it.  On appeal this ruling was reversed. The Appeal Court’s decision could have been based on the finding that the amendment would have altered the nature of the suit from that of a summary jurisdiction suit to one which clearly could not be brought under that Rule. It does not appear to have been based on this. I must, therefore, decline to accept …. (an) Invitation to hold that it is open to me to grant the amendment prayed even if I held that the plaint disclosed no cause of action. In the even that this matter is taken further it will no doubt be possible for the Court of Appeal itself to review its earlier decision if it thinks fit.” (4) Appeal allowed – Amendment granted.