JOHN M. BYOMBALIRWA v AGENCY MARITIME INTERNATIONALE (TANZANIA) LTD 1983 TLR 1 (CA)

JOHN M. BYOMBALIRWA v AGENCY MARITIME INTERNATIONALE (TANZANIA) LTD 1983 TLR 1 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Nyalali CJ, Makame JJA and Kisanga JJA

1 December 1983

CIVIL APPEAL 15 OF 1983 B

Flynote

Civil Practice and Procedure - Plaint - Failure to disclose a cause of action - Whether

necessary for plaintiff to aver compliance with s. 6 of the Sale of Goods Ordinance

Cap. 214(T). C

Civil Practice and Procedure - Plaint - Particulars in - Special defence open to

defendant - Whether plaintiff required to anticipate it - S.6 Sale of Goods Ordinance

and O. VII r. 1(e) Civil Procedure Code.

Civil Practice and Procedure - Reply to written statement of defence - Whether court

to take D into account when considering whether plaint discloses cause of action -

O. VIr. 7 Civil Procedure Code.

Civil Practice and Procedure - Plaint - Failure to disclose a cause of action - Dismissal

of suit - Proper action to be taken - O.VII r. 11 (a) Civil Procedure Code. E

-Headnote

The appellant appealed against the Order of the High Court dismissing his claim for

failure of the plaint to disclose a cause of action. The plaint had alleged that there was

a contract whereby the appellant was to supply to the respondent goods valued at Shs.

F 82,237/50; but that the respondent had refused or neglected to take the said goods.

The appellant, accordingly, wanted to recover the said sum being the agreed price for

the goods or damages for breach of contract.

In the written statement of defence, the respondent raised a preliminary objection

that G the claim offended against s. 6 of the Sale of Goods Ordinance and therefore it

should be dismissed for the plaint's failure to disclose a cause of action.

Held: (i) The plaintiff is under no obligation to aver in the plaint compliance with any

H requirement under s. 6 of the Sale of Goods Ordinance which only provides a

special defence which a defendant may rely on if he so wishes;

(ii) the plaintiff is under no obligation to anticipate any special defence which

might be available to the defendant; I

1983 TLR p2

A (iii) for purposes of deciding whether or not the plaint discloses a cause of

action the plaint and not the reply to the written statement of defence should be

looked at, the reply merely serving to show that the plaintiff joins issues with the

defendant on the special defence raised in the written statement of defence;

B (iv) under O. VII r.11(a) of the Civil Procedure Code, where the plaint

discloses no cause of action the court is to reject it and not dismiss it.

Case Information

Appeal allowed. C

Cases referred to:

1. Narsinh Valji v Dr. D.K. Shukla HC. DSM. Civ App. No.9 of 1955

(unreported).

2. Nazerali Merali t/a Merali & Co. v. S.K. Rajwani t/a United

Commercial D Co. HC.DSM. Civ App. No. 24 of 1961

M.J. Raithatha for the appellant,

F.H. Uzanda for the respondent.

[zJDz]Judgment

E Kisanga, J.A., delivered the following considered judgment of the court: This is an

appeal from the ruling of the High Court dismissing the appellant's claim on a

preliminary objection that the plaint disclosed no cause of action because there was

no compliance with the requirements of section 6 of the Sale of Goods Ordinance

(Cap. 214). The F plaint had alleged that there was a contract whereby the appellant

was to supply to the respondent goods valued at shillings 82,237.50, but that the

respondent has refused or neglected to take the said goods. The appellant therefore

sued to recover the said sum of shillings 82,237.50 being the agreed price of the said

goods or damages for breach of contract. G

In written statement of defence the respondent, among other things, raised the

defence that the claim offended against the provisions of section 6 of the Sale of

Goods Ordinance and therefore prayed the court to dismiss it for disclosing no cause

of action. In reply to the written statement of defence, the appellant sought to show

that there had H been compliance with some requirements of section 6 of the

Ordinance. However, at the commencement of hearing the suit, the respondent's

counsel took a preliminary objection that the plaint disclosed no cause of action for

non-compliance with section 6 I of the Ordinance. The objection was upheld and

the suit was accordingly dismissed as prayed. In this appeal the appellant

1983 TLR p3

KISANGA JA

was represented by Mr. M.J. Raithatha while the respondent was represented by Mr.

A F.H. Uzanda. They were the same advocates representing the parties in the lower

court.

The question before us and which was also before the court below is a very narrow

one. It is whether in a case involving section 6 of the Sale of Goods Ordinance, it is

necessary for the plaintiff to aver in the plaint that there has been compliance with

the provisions of B that section. As indicated earlier, the learned trial judge held that

it was. The relevant parts of section 6 of the said Ordinance provide:

6.(1) A contract for the sale of any goods of the value of two hundred shillings

or upwards shall C not be enforceable by action unless the buyer shall accept part of

the goods so sold, and actually receive the same, or give something in earnest to bind

the contract or in part payment, or unless some note or memorandum in writing of

the contract be made and signed by the party to be charged or by his agent in that

behalf. D

(3) There is an acceptance of goods within the meaning of this section when

the buyer does any act in relation to the goods which recognizes a pre-existing

contract of sale whether there be an acceptance in performance of the contract or not.

E

Both counsel are agreed that the provisions of this section are only procedural, and

we think that is right. But Mr. Uzanda went further and submitted that those

provisions are mandatory. He strenuously contended that in a case involving this

section, the plaintiff F must plead in the plaint that at least one of the requirements

set out in that section has been satisfied. Mr. Raithatha vigorously countered such

proposition. He submitted in effect that there was no obligation for the plaintiff to

plead in the plaint compliance with the requirements of the section, and that the

section only creates a statutory defence G which a defendant may rely on if he so

wishes. In this connection he referred us to some decided cases and text books. Of

particular interest were two unreported decisions of the High Court in the cases of

Nazerali Merali trading as Merali & Co. v S.K. Rajwani trading as United Commercial

Co. (DSM. Civ App. No. 24 of 1961) H and Narsinh Valji v Dr. D.K. Shukla (DSM.

Civ App. No. 9 of 1955). Both cases were of much assistance to us.

In order to ascertain the validity or otherwise of Mr. Uzanda's argument, it seems

desirable first of all to refer to the provisions of Order 7 of the civil Procedure Code I

which lay down the particulars that are to be contained in a plaint. Rule 1 (e) of the

said Order says

1983 TLR p4

KISANGA JA

that the plaint shall contain, inter alia, the facts constituting the cause of action. The

A expression "cause of action" is not defined under the Code, but it may be taken to

mean essentially facts which it is necessary for the plaintiff to prove before he can

succeed in the suit. Mr. Uzanda's argument necessarily envisages rule 1 (e) as

embracing the B requirements under section 6 of the Sale of Goods Ordinance. In

other words, according to Mr. Uzanda the requirements under section 6 are facts

which constitute cause of action and which therefore must be set out in the plaint. It

is in that way that Mr. Uzanda is able to maintain systematically and logically that the

plaint discloses no cause C of action because none of the requirements under section

6 constituting essential facts has been averred or pleaded therein.

We have given much thought to Mr. Uzanda's argument, but we have not been

persuaded by it. We do not think that the requirements under section 6 amount to

facts D constituting cause of action. We think, as argued by Mr. Raithatha, that

section 6 only provides a special defence which a defendant may rely on if he so

wishes. It should be pointed out however that where a defendant wishes to avail

himself of that defence, he has to raise it on the pleadings. The reason for this is clear.

It is to avoid taking the other E party by surprise at the trial. It is designed to give

the opposite party sufficient notice of the case which he is to meet at the trial. Once

we hold that the requirements under section 6 only create a special defence open to a

defendant, it logically follows that a plaintiff is under no obligation to aver in the

plaint compliance with any such requirement. F Nor does he have to anticipate it.

His obligation in relation to it arises only if and when the defendant has raised it. So

that should the defendant choose not to raise it at all, for instance, the trial is to

proceed; the plaintiff has no duty to refer to it and even the court is G not bound to

take judicial notice of it. It is a special defence designed for the benefit of a defendant,

but if the defendant does not wish to avail himself of it, the matter is to rest at that.

In the context of the facts of the present case the position amounts to this. The

appellant H has alleged a contract between himself and the respondent to buy

certain goods. The respondent essentially admits the contract but says that he has a

defence, namely, that the said contract does not meet the requirements of section 6 of

the Ordinance. But this does not mean that the appellant has no cause of action which

exists quite independently of the defence. Here both parties have admitted a valid

contract between them. Section I 6 merely says that a contract shall not be

enforceable unless it be proved

1983 TLR p5

KISANGA JA

in a certain way. Thus once the respondent raised the statutory defence as he did, it

was A for the court to ascertain whether or not the appellant who sought to enforce

the contract was prepared to prove it in the manner as required under section 6. If the

appellant succeeded to do so he would be entitled to judgment, and only if he failed to

do so would judgment be against him. B

It is therefore apparent that the learned judge acted prematurely. He concluded the

matter when he ought to have gone on. He was not satisfied that the appellant was

not prepared, or had failed, to prove the contract in the manner as required under

section 6. Indeed the appellant's reply to the Written Statement of Defence indicates

that the C appellant was prepared to prove compliance with some requirements of

that section. We think that in this type of cases once the special defence is raised the

trial judge should treat it as an issue to be resolved after receiving evidence on it.

A further word need be said about the appellant's reply to the written statement of D

defence which, as already stated, indicates that the appellant was prepared to counter

the respondent's defence by alleging acceptance of the goods and the existence of a

written memorandum of the contract. Mr. Uzanda contended that the appellant, by

alleging a written memorandum, was now departing from the plaint which had

alleged an E oral contract. He submitted further that this contravened the provisions

of Order 6 Rule 7 of the Civil Procedure Code which provide that:

No pleading shall, except by way of amendment, raise any new ground of

claim or contain any F allegation of fact inconsistent with the previous pleadings of

the party pleading the same.

He therefore concluded that in considering whether or not the plaint discloses a cause

of G action only the plaint should be looked at; the reply must be ignored. We agree

that for purposes of deciding whether or not the plaint discloses a cause of action the

plaint and not the reply should be looked at. But for reasons we have given earlier on,

we are H satisfied that the plaint as filed adequately discloses a cause of action. The

reply merely serves to show that the appellant joins issues with the respondent on the

special defence raised in the written statement of defence. In that sense it seems that

the reply can hardly be said to be a departure from the allegation made in the plaint.

I

1983 TLR p6

Before we conclude this matter, it is pertinent to observe that even if Mr. Uzanda's A

allegation were well founded that the plaint disclosed no cause of action, the relief he

asked for was wrong. He

asked for an order dismissing the suit and the court granted him accordingly. This

contravened the provisions of Order 7 rule 11(a) of the Civil Procedure Code which

say B that where the plaint discloses no cause of action the plaint is to be rejected.

Needless to say, the consequences of rejecting a plaint differ from those flowing from

dismissing the suit.

In the result the appeal succeeds. We set aside the decision of the High Court

dismissing C the suit. The case is remitted back to the High Court with a direction to

that court to continue to hear the case in accordance with the law. The appellant is to

have his costs.

D Appeal allowed.

1983 TLR p6

E