19881027 TZHC Dar es Salaam

IN TIIE IlIGII COURT OF TANZANIA AT DAR ES SAL.A.AH CIVIL C~i.SE 1m. 123 OF 1986 INTERNATIONAL AGRICUJJl'UHAL PRODUCTS & :EXPORTS LTD •• •. • PLA.I.NTI.ti'F Versus l. J .S • LIJltrTED 2. SALZAIN TRADERS LTD 3. ZAJ.li'OON DOSSA .... o • • • • •.•• • • . • . • . • . • • •• ., • • • • • ••• ~ •• • • • DEFEND.AlfrS RU L ·ING MNZAVAS J .IC. When this case ca.me up for hearing on 11/10/88 Mr. Raithatha, learned counsel for the 1st defend.ant raised a preliminary argument that the plaint does not disclose a cause of action in so far as the claim · for interest was concerned. In support of his argument the learned counsel referred· the court to the provisions of OR.7 R.1 of the r· ·-- Civil Procedure Code. It was argued that the plaint talks of interest but does not sey how the claimed amount has been arrived at. The decisions by ' this Court in SULLIVAN . V ALI MOIDU'!ED OSNA.t~ (1959) E.A. 239 and . l;AJCE MOTORS LTD V OVERSEAS MOTOR TR'!.NSPORT (T) · LTD (1959) i.A 603 were quotted in support of the argwnent. Mr. Mwajasho, loamed counsel for the 2nd and third defendants supported ,a Mr. Raithatha's argument that the plaint did not disclose a cause of action , ·. in so far as the claim of interest was concerned. Mr. Mwajasho also argued that the plaint did not disclose a cause of action in :respect of his clients - 2nd ancl 3rd _defend.ants. It was also submitted that the 3rd defend.ant is entitled to judgement against the plaintiff under ORo 8 R.11 and 14 of the Civil Proceduro Code as, it was argued, the plaintiff has failed to file a reply to the counter-claim. ••• /2 - 2 Dr. Lamwai, learned counsel for the plaintiff countered that the arguments that the plaint does not disclose a cause of action regarding the interest claimed has no basis and that it was meant to deley the hearing of the cnse. It was argued that the plaint . contained ' sufficient facts to entitle the plaintiff to the reliefs he claims for. In support of his argument the court was referred to 0Ro6 R_.3 of the civil Procedure Code. It was the learned. counsel's submission that the question of interest is for the Court. to determine on the evidence tendered~ .. As for the argwnent by Mr. Mwajasho regarding the 2nd and 3rd defendants it was Mr. Lamwai's submission that he has not received writte~ statements. of th 2nd and 3rd defendants and that he was himself going to apply for judgement against them for failure to file W.s .D. In my reading of the plaint and the annexures to it I must c·onfess that I do not see how the claim on the interest has. been arrived a'.I;. The plaint does not sey- whether the interest claimed is based on contract or custom. That being the position I tend to agree with :Mr. Raithatha•s submission that on the question of interest the plaint does not disclose a 'cause of action. The question this Court has to decide in the light of the ab~ omission in the plaint is whether the claim regarding interest should be rejected under OR.7 R.11 of the Civil Procedure Code. Dealing with a similar situation this Court had this to say in LAKE MOTORS LTD V OVERSEAS MOTOR TRANSPORT (T) LTD (1959) E.A. 603 _:.;_ "The failure to allege that the sum claimed represented an agreed or a reasonable price was a defect in pleading but it is not every such defect which results in the plaint not disclosing a cause of a action; in this case the irregulari t,' did not go to the root of the action and Wc:>.S curable by amendment". This· decision had quotted a..~d followed the decision in England on a similar issue in BEAD V BROWN (1889) 22 Q.BD 128. That is case law. As to statute law the position has since been made even more clearer by amendment of OR.VII of the Civil Procedure Code as per G.N. No.228/71. ORo VII R 11 of the Code hclS been amended to read thus: ... ./3 - 3 "Provided that where a plaint does not disclose a cause of action or where the suit appears from the statement in plaint to be barred~by ari,y law and I the Court is satisfied that if the plaintiff is permitted to amend the plaint, t)ae plaint 1fill disclose a cause of action or ,as the case may be, the suit will cause to appear from-the plaint to be barred by any law, the court mey allow the plaintiff :·to,. a.mend the plaint subject to such conditions as to costs or other-wise as the court may deem f'i t to·. impose." In my reading of the plaint in its totality the justice of the ,case. :will be better served if the plaintiff is allowed to a.mend his plaint in so far as it relates to clain of interest. The· plaintiff is given ten days from toclay to amend the plaint in oormeotion, with the claim of interest. As for the questioii ·' regarding the 2nd and 3rd defendant it is not clear from the record· that the plaintiff has been served with the written statements of the 2nd and the 3.rcl defendants o And, if T-u-. Lamwai 's argument that he has in fa.ct not yet received 2nd al1d 3rd defendants• W.SeD. is anything to go by the argument that tho plc>,intiff has failed to file a reply to a counter claim by the 3rd defendant has,no leg to stand on. The 2nd and 3rd defendants to see to it that the plaintiff is served with their WeSeDe within three days from todey. Dar es Salaam 27/10/88