19831201 TZCA Dar es Salaam

·•"~ "_.r, ~~~ l(l/~1 -~ IN THE COURT OF APPEAL OF TANZAN (CORAM: NYALALI,, C.J.,, Makame r JoAo an9 Kisanq~ J~A.) c::;:VIL AFJ:.'EAL NO., 15 OF 1983 BETWEEN JOHN Mo BYOI·ar1.LIRHA .. 0 • ... • • A PEL~i-'.NT A ND AGENCE I-Iii rCT::: L r:'rC ;-z;..;-;, r:::ro1-;ALE j ~ o RES ONDENT (TANZANIA) LHII'.l'CD (Appeal from the Ruling and Decree o the High Court of Tanzania at Dar aam) (Mapigano, J.) dated 23rd March, 1982 I -i JUDGEEI-JT OF THE COURT ~ISJ\NGA, Jo A.'.'..!. This is an appeal from the ruling of the High Court dismissing the appellant's claim· on a preliminary that t compliance with the re'fu,t.reRents of section 6 of ·..Sale of GQods Ordinance (Capa214L The plaint had there was a contract whereby the appellant was to supply to the respondent goods valued at shillings 82 ,2:37. 5'-\. but that- . .) the respondent has refused or neglected said goods. The appellant therefore sued to recover the said.. s m of shillings 83,237.50 being the agreed price of the said goods or damages f~r breac~ of contracte In a written statement of defen"e the respond nt, among ~ther things·, raiserl •the. 4=:fen<t~ that the claim df ended against the provisions of section .6 of ::he Sale of Goods Ordinance nnd ·therefore prayed the court to dismiss it ford sclosing no· cause of act:5on.. In a reply to the written sta ement: of defence, ., the appellant sough·t to show that there had bee compliance with some requirements of section 6 of the Ordinance. However, at the commencement of hearing the -suit, the ondent I s counsel took a preliminary objection that the plaint losed no cause of action for non-compliance with S•.=ction 6 of t e ·ordinance. The objection was upheld and the suij: was accord ngly dismissed as prayed. In this appeal the appellant was rep esented by Mr. M. J. Raithatha while the respondent was rep esented by Mr. Fo H., Uzandao They were the same advocat s·representing the parties in the lower court. The question before us and which ,,,as also be ore the court below is a very narrow one. It is whether in a c se involving section 6 of the Sale of Goods Ordinance, it is n cessary for the plaintiff to aver in the pl·aint that there ha been. compliance wi-th the provisions of that section,. As indicate earlier, the learne<;l trial judge held that it was.· The releva t parts of section 6 of the said Ordinance provide:- "6. - (1) A contract fo.r. the :Sale of at1 :: goods of the value of two hundred shilli.ngs r upwards shall not be enforceable by action tinl ss the buyer shall accept pa1:t of the goods s sold, and actually rec 1;:f.-ve the same, or give iiomething in ·earnest to bind the contract or in .art payment, or unless some note or memorandum in w iting of the contract .be mac!e and signed by the party to be charged or by his ager.t in that beh lf,. (2) ··•·• · (3) There is an acceptance of gbod within the meaning cf this section when the bu.er does any act in relation to the goods wh:l..ch reco nizes a pre-,existing c.:::ntract of sale whether t ere be an acceptance in performance of ·che cor.t:2:·a t or not" o Both counsel are agreed ·ch.at the provisions of this section, are only procedural, and we think that is rightc ' • Uzanda went further and submitted that those provisions. a.r_-e mand tory. ' ~ m :--J strenuously contended that L:. a case involving :.:h..L.s ection, the plaintiff must plead in the plaint that .at least of the requirements set out in that section has been satisfied. Mr. hatha vigorously countered such proposition. He submitted in effect hat there· was · no obligation for the plaintiff to plead in the plait compliance with the requirements of the secti0ns and that ction only creates a statutory defence which a defendant may rely on he so wishes, In this connection he referred us to sorrte decided es and text books. in the cases of Nazerali Merali !:fading as !'1eraU. & Oo v. s. K •. Rajwani trading as United Commercial Co. (Dsm .. Civ o pp .. No. 24 -of 1961) and Narsinh Valji v. Dr. D. K. -'f~ (Dsmc .App.;.Noo 9:.of 1955). Both cases were of much assistance to us. In order to ascertain tne validity or otherwise of Mr. Uzanda 1 s argument, it seems desirable first l: to refer to the provisions of Order 7.of the Civil dure Code which lay down the particulars that are to be contai ed in a plainto Rule 1(e) of the said Order says that he plaint shall contain, inter alia, the facts coristi tutitr:, th cause of action. The expression "cause ot action". is not def ned under ~he Code, but it may be taken. to mean essent:ially ts which i~ is .necessary for the plaintiff to pr~ve before he can succeed in the suito Mro Uznada's argument necessar J.y envisages rule 1(e) as embracing th·e requirements c,:1der sectio 6 of th~ Sa.le of Go0ds Ordinanceo In other words, according o Mro Uzanda the requirements under section 6 are facts which con titute cause of action and which therefore must be set out n the plainto ~t is in that way that Mr •. Uzanda is able . maintain . . . . . systematically and logically.that the plaint disclcs s no cause of .action because. !tone of th.e reqijirements under sec ion 6 qonsti tu ting assential. facts has b_een · a"'.'e.t'red O.I'. • I pleaded therein • ) I ..... /~·/.· ...i". .,J.:J ·~ ; \ ' - 4 We have given much thought to Mr. Uzanda' s arg ment, but we have not been p1:;::-suaded by ito We do not, th nk that the requiremem.s under section 6 amount to facts co stituting cause of actiono We think,, as argued by Mr. Raitha ha, that section 6 only provides a special de.fence which a d fendant may rely on if he so wishes. It should be .pcinted out oweve·r '---: -- that where a defendant wishes to avai.l himself of at defence, he' has to raise it on the pleadings. The reason fo this is clear. It is to avoid.taking the other party by surprise ·the trial .. It is designed to give the opposite party ;rnfficie notice of. the case which he is to meet at the triaL .: Once \\."e ho that the requirements under section 6 only, c ! ( " ~ ,-=: special open to a defendant, it logically f o l ~ that a p aintiff is under no obliqation to aver in the plaint ~ompl"ance with any such requirement.. Nor does he have tc anticip te it. His obligation in relation to it ·arises only if and wh n the defendant has raised it.. Sc that should the defendant c.hoos not to··. raise it at all: for instance, the trial is to pr,~., eedr the plaintiff has no ou';::y to refer to it and even the curt· is. not'. bound to take judicial notice of it. It is a spe-~ial de ence designed . for the benefit of a defendant, but if the defenda t does not·, wish to avail himself of it, the maMe<- is -bo rest at thato In the cbntext of the fact:s .of ·/:Jep:;:e,,:;ent ca e the position amounts to this.. The appella!ll; has .J.lleg d a contract between himself and the responaen-l:-to buy certain good so The respondent essential+Y admits the cont act but .says that he ha$ a defence 1 namely 7 t!1.t. ·.: t:he said ontract does not meet the requirements of section (:; a:i<i the:.:.ef,:, e it is ~nenforceable against him. That is to say; the re pendent seeks. to avaii himself cf the special iefence ere a :e.d by ·section ····~/5 ;, i '1 6 of the Ordinance.. But this does not mean that the a pellant I has no cause of action aginst the re~pondent. It is o e thing no to say that there isle ause of action agairi'st a ut ,t..J quite another to say that party has·~ defence aim.· "' Caupe of action exists quite independently of the ,defe ce, I Here both parties have admitted a valid contract n them .. ~ ' Section 6 merely says that A contract , , shall ,not: be enfo r .. · eable unless it be proved in a certain way. Thus once the espondent raised the statutory defence as he did, it was for th court to I ascertain whether or not the appellant who sought to nfofce the I 1; contract was prepared to prove it iri the manner as re uired under f) section 6.. If the appellant succeeqed to, c.o s.o he wo ld be entitled ·: ' J to judgment, and only if he failed to do 'Iso would . jud ment be against !j him. It is therefore apparent_ that the learned judge. cted prematurely. I 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 Indeed the appellant's reply to the Written Statement cf defence indicates thnt the appellant was prepared to prove compl,iance with s me 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 n issue to be resolved after receiving evidence oh it2 ,,: A further word nee1 be said about the appellant's reply tie the written statement of defence whic:~, a;:; alrs::,d stated; indicates that the appellant was prepared to counte:c ~spondent' s defence by alleging acceptari ..:e of the g and the existance of a written .. ... .,,, 6 :.. Mr. Uzanda contended that the appellant; by alleging a ritten, memorandum, was now depnrtin'] frcm the plaint which had al],eged an orql contract. He submitted further contravened the pryvisions of Order 6 Bule .7 of Procedure Code which provide that, "No plec'!-ding shaL)., except by way of amendment, raise~ any new ground of laim Or. contain any allegatlon of fact in onsistent with the previous pleadings of the p rty pleading the same". He therefore concluded that in considering whe_ther or ot the plaint discloses a cause of action only the plaint she ld be looked at; the reply must be ignoredo We agree tha for purposes of deciding whether or not: the plaint disclos s a reply merely serves to show that the appellant joins with the c;\efence., In that sense i t seems that the reply can h be said t, be a departure from the -J.llegation made in the pla'nt. Before we conclude this matter, it is pertinent o observe ' that even if Mr. Uzanda' s allega.t.i,·.)n were well founde that the · p~a\rit di-sclosed no cause of action, the relief he as ed for was · wrong-i He asked for an order dismissing the suit and the .pourt granted him accordingly. · This .contr;~vened the provis ons -ef -Order 7 rule 11Ca) of the Civil Frocedure Code whi h ~ay - :that where the plaint discloses no cause of. action th plaint · Ss to be rej.~c'ted. ifoedl2:c:s to say, th.e ·ccnseque,,ces of rejecting a plaint diff,,,r from tr..~se f~.owing from di issing the sui~. . •••.11·· 7 In the result the appeal succeeds. We set as de the decision of the High Court dismissing the suit. e case is remitted back to the High Court with a directio to that court to _continue to hear the case in l[.CCordance w th the (Lo M. M.<1.Ki\I''E) -~~'.CE CF A~~~;:~. (R.H. KISANGA) JUST:CE OF APPEAL I certify: that ·th:: ., is·· a. true copy. of the orig nal. ( .' '