john m byombalirwa vs agence martile internationale tanzania limited 1983 tzca 21 1 december 1983

IN THE COURT OF APPEAL OF TANZANIA UAK IjJ (CORAM: NYALALI._C J,, Makame , J.A. and Klsanga. J.A.) CIVIL a :;CAL NO. 15 OF 1983 B E T W E E N JOHN M„ BYOKBALIRU* . . . . .. . . . APPELLANT a n i; AGEiiCE :u\^i t i ..e i:.i ::;u^.t i o :;a l e (TANZANIA ) LIKITLID (Appeal from the Ruling and Decree of the High Court of Tanzania at Dar es Salaam) (Mapigano, J. ) dated 2 3rd March, 1982 j u p g ;'e ::t of the court KISANGA. J oA . : 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 rv<|j4.repents of section 6 of the Sale of Gpods Ordinance (Cap-214). The plaint had alleged that there was a contract whereby the appellant was to supply to the respondent goods valued at shillings 82t237«5J\ but that the respondent has refused or neglected to take the said goods. The appellant therefore sued to recover the said sum of shillings t * ,237.50 being the agreed price of the said goods or damages fer breach of contract. In a Written statement of defence the respondent, among other, things, raise'’ the ^pfence that the claim offended against the provisions of section 6 of Lhe Sale of Goods Ordinance and\ therefore prayed the court to dismiss it for disclosing no cause of actJon.. In a reply to the written statement of defence, bhe .appellant sought to show that there had b e e n c om pl i an c e 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-compliancy with section 6 of the Ordinance. The objection was upheld and the sui c was accordingly dismissed as prayed. In this appeal the appellant was represented by Mr. M. J. Raithatha while the respondent was represented by Mr. F. 6. Uzanda. They were the same advocates representing l 1 , the parties in the lower co$rt. .V 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 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 not be enforceable by action unless the buyer shall accept Pf'rt of the goods so sold, and actually rec vi ve-i\the same, or give something in earnest to bind tiSje contract or in part payment, or unless some note cr memorandum in writing of the contract be made and signed by the party to be charged or by his agent in that behalf* (2 ) ... (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 c.-ntract of sale whether there be an acceptance in performance 6f the contract or not". Both counsel are agreed chat 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. strenuously contended tha c -l»; a case invoicing -h^s section, the i * plaintiff must plead in the plaint that a t ^ e a s t one of the requirements * set out in that section has been satisfied. Hr. 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 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 Merall trading as Mer & C q „ v . S. K. Rajwani trading as United Commercial Co. (D.srru Civ.App„No. 24 of 196^) and Narsinh Val]i v. ,Dr. D. K. .Sht/Kl^ (Dsm i- ir— 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 which lay down the particulars that1'are to be contained in a plaint. Rule 1(e) of the said Order says* that the plaint # I shall contain, inter alia, the facts constituting the cause of 9 action. The 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, Uznada’s argument necessarily envisages rule *1(e) as embracing theD recuiremen-ts 1 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 ft Cause o f % a c t i♦ o n and which therefore m u s t be set o ut in the plaipt. It is in that way that Mr. Uzanda is able to maintain 1 systematically and logically that the plaint discloses no cause of action .because Frone of the requirements under section 6 constituting assential facts has been averred or pleaded therein. We have gi^en much thought to Mr. Uzanda-~ argument, but we have not boen £kj.rsuaded by it. We do not think that t-tya requirements \ander section 6 amount to facts constituting cause of action. We think-, as argued by Mr. Raithatha, that section 6 only providers a special defence which a defendant may rely on if he s o 1wishes. It should be pointed out however that where a defendant wishes to avail himself of that defence, he has to raise it on ^he pleadings. The reason for this is clear. It is to avoid caking the other party by surprise at the trial. It is designed to give the opposite party .-vfficient notice of the case v/hich he is to meet >at the trial. Once we hold that the requirements under section 6 only creeifce. -. special defence open to a defendant, i ■; Logic,ally fott-ywy :.Hat a plaintiff c N is under no- obligation to aver in the plaint compliance with 't any such requirement. ' ’Kor does he have t-.v anticipate it. His « 9 obligation in relation to ,it arises onj y if and when the defendant has raised it. that should the defendant choose not to raise it at .'all. for instance, the trial is to pr-^eed; the plaintiff has no oucy to refer to it and even the court is 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 mafc£<?^ is to rest at that. V In the context of the facrs of present case the position amounts to this. The appellant i:as alleged a contract between himself and the respondent to ouy certain goods. The respondent essentially admits the contract but $ V says that he hap a defence', namely, the '..he said contract does not meet the requirement s Yof section and therefore it is unenforceable against him.* That is to sa$ , the respondent .i 4 * sSeks to avail himself of the '-special defence created by section 6 of the Ordinance.' But th^-s does not mean that the appellant $ has no’ c a u o faction agin'st thu respondent. It is one thing no to say. that there is/cause', of action against a party, but quite another to say that^party has a defence to the claim. C a u s g o f action exists quite independently of the defence. Here both parties have admitted a valid contract between them. Section 6 merely says that ^contract shall not be enforceable unless it be proved in a ce'rtain way. Thus once the respondent * raised the statutory defence as he did, it was for the court to ascertain whether or not the appellant who sought to enforce the *■ ■ contract was prepared to prove it in th manner as required under i■ section 6. If the aprpellant succeeded to do so,'he would be entitled v to judgment, and’ only if he failed to do so would judgment be against him*- * It is therefore apparent that the learned judge acted prematurely. * f He concluded the matter when he ought to hav-e gone on. He was not satisfied that the appellant was not prepared, or had failed f/ to prove the contract in the manner as required under section 6. Indeed the appellant1s reply to the Written Statement of defence indicates that the^appellant was prepared to prove compliance with some Requirements .I of that sectioni 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 t to the written statement of defence which, an alrtrdy stated, ». indie ates that the appellant was prepared to counter the respondent's defence by alleging acceptance of 4he goods and the existence of a written memorandum of th*' f-ewtrac t. . .. ./6• 6 *+ Mr. Uzanda contended thet the appellant by alleging a written memorandum, was now departin';! from the plaint which had alleged an oral contract. He submitted further that this contravened the provisions of Order 6 Kule 7 of the Civil Procedure Code which provide that, "No pleading shall, except by way of ** amendment., raised any new ground of claim • or contain any 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 action only the plaint should be lookedat; the reply must be ignored. We agree that for purposes of deciding whether or not the‘plaint discloses a caus£ of action the plaint and not ‘ihe reply should be looked at. But for reasons we have given earli-er on, we are 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 f ' 1 defence. In that sense it seems that the reply can hardly be said * to be a departure from the allegation made in the plaint. Before we conclude this matter, it is pertinent to observe that even if Mr. Uzanda's allegation were well founded that the Pi aint disclosed no cause of action, the relief he asked for was wrong. He asked for 'an order dismissing the suit and the court V granted him accordingly. This contravene ' . ‘:he previsions ■©f Order 7 rule 11(a) of the Civil Frocedure.Code which say that where the plaint discloses no cause of action the plaint * ' • Is to be rejected. Heedless to say, the consequences of rejecting a/.pi aint differ fro'rn those, flowing from dismissing the suit. In the result the appeal succeeds. We set aside the decision of the High Court dismissing the suit. The case * { is remitted back to the £igh Court with a direction to that fourt to continue to hear the .case in accordance with the law. The appellant is to have his costs. * , DATED at DAR E3 SALnAM this 1st dry of December, 1983. (F. L. NYAI II) C:-:i"? j u ". :t , (L. I'. iMa KA fE) just^ e cf APr.,rjJ (R. H. KISANGA) JUSTICE OF a PPEAL >■ ....... - <1 certify that Lh . is a true copy of the original. 4 // ■ c / C- ‘ ( l . A . A . KYANDO) SErJICR DEPUTY REGISTRAR