[1952] EACA 286

## ORIGINAL CIVIL

Before WINDHAM, J.

## A. M. MARWAHA, Plaintiff

$\pmb{\nu}.$

## (1) PANDIT DWARKA NATH, (2) THE POSTMASTER GENERAL, $\mathcal{L} = \mathcal{L} \mathcal{L} = \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L}$ NAIROBI, Defendants

## Civil Civil Case No. 599 of 1952.

Practice—Application under Civil Procedure Rules, Order 1, rule 10 (2)—Point $\ldots$ of Law—Order 6, rule 27.

The applicant, the Postmaster General, Nairobi, was second defendant in the action. Having entered a conditional appearance, he applied under Order 1, rule 10 (2) Civil Procedure Rules before filing defence to have his name struck $out.$

The plaintiff sued the first defendant as a contractor employed by the applicant, second defendant, to execute certain works entailing digging a ditch upon land said to have been used as a public footpath. The plaintiff using the footpath at night fell into the ditch and sustained injuries.

The applicant contended that subject to specific legislation the Crown cannot be sued in tort.

Held (23-9-52).—The application under Order 1, rule 10 (2) was misconceived as the point<br>raised was in substance a defence on a point of law. The correct procedure was to<br>file a defence pleading this point under Order 6, r costs.

Cases referred to: (1875) W. N. 203, and Proctor v. Cheshire C. C. (1891) W. N. 43, The Annual Practice, 1952, page 253.

J. J. Patel for plaintiff.

D. N. Khanna for defendant No. 1.

A. B. Patel for defendant No. 2.

DECISION.—The applicant, who is the Postmaster General, Nairobi, is the second defendant in this pending action. He entered conditional appearance, and he now applies under Order 1, rule 10 (2) of the Civil Procedure Rules before having filed a defence, to have his name struck out as having been improperly joined as defendant. According to the plaint the first defendant is a contractor employed by the second defendant to execute certain works which entailed the digging of a ditch upon certain land said to have been used as a public footpath, and the plaintiff, who being a member of the public fell into that ditch while using the footpath at night and sustained injuries, is suing both defendants for damages incurred through those injuries. The cause of action on which he relies against both defendants is set out in paragraph 9 of the plaint, which reads as follows: "Defendants were under an obligation to the public to keep the ditch safe for the pedestrians by either covering it up at night or by putting lights at its various points to warn the public off it; the defendants by not providing for either of these failed in their duty to the public, inter alia, to the plaintiff".

In support of his present application to be struck out, the second defendant relies on the general proposition of law that, subject to specific legislation, the Crown cannot be sued in tort, and on the particular proposition that at the time when the cause of action (if any) arose, that is to say when plaintiff fell into the ditch, which was in May, 1951, the second defendant (the Postmaster General, Nairobi) was an "emanation from the Crown", and as such was not liable in tort, since the legislation which later made him into a corporation sole and imposed statutory liability upon him in tort, namely the East African Posts and Telecommunications Act, 1951, had not yet come into force, having been enacted only in October, 1951, and its provisions not being retrospective.

I have examined the authorities cited for the applicants in support of the above propositions of law and, though I expressly refrain in the present application from holding whether they be unanswerable or not, it would certainly appear that they are sound. But, be that as it may, it seems to me that this application under Order 1, rule 10 (2) to strike out the second defendant is misconceived. The ground on which he seeks to be struck out amounts in substance to a defence on a point of law, namely his non-liability upon actions in tort at the time when the cause of action arose. That being so, the proper course, I consider, would have been to file a defence and to plead this point in it, under Order 6, rule 27. which seems designed for such a case and which reads: -

"Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Court at or after the hearing, provided that by consent of the parties, or by order of the Court on the application of either party, the same may be set down for hearing and disposed of at any time before the hearing."

It is conceded by learned counsel for the applicant that such a course was open to him, but he contends that it was equally open to take the course which he has taken. But while appreciating that he took this course mainly with the object of saving time and costs, I still think an application under Order 1, rule 10 (2) was misconceived. To begin with, it was premature, because upon the plaint alone it is not unequivocally clear that he is being sued in tort at all. Paragraph 9 of the plaint might seem to imply this, but it is at least consistent with an allegation of some statutory liability for non-feasance so far as the second defendant is concerned. If the nature of the liability is not made clear in the plaint, as indeed it is not, then the proper remedy would seem to be an application for particulars, or alternatively a denial of tortious liability in a statement of defence which, if not countered in a statement in reply by an assertion that the liability being imputed was not tortious but statutory, would establish on the pleadings that the liability being imputed was in tort, whereupon an application to determine the legal point as to liability before trial could be made under Order 6, rule 27.

I have been unable to find any decided authority, either local or English, satisfactorily determining whether resort can properly be had to Order 1, rule 10 (2), or to the corresponding English Order 16, rule 11, in a case where the ground for the application is, as here, in the nature of a demurrer. But I do find, in the Annual Practice, 1952, at page 253, two cases cited in support of the proposition that in England "the Court will not, however, decide questions of right on applications under this rule" (i.e. Order 16, rule 11). The cases cited appear to be reported only in the *Weekly Notes* (1875) W. N. 203, and *Proctor v. Cheshire C. C.* (1891) W. N. 43, which reports are unfortunately unavailable in Nairobi; but if the phrase "questions of right" includes the question whether a plaintiff has a right to sue the Crown in tort, as I think it must, then those decisions would seem to support the view which I have adopted.

For these reasons this application must be dismissed with costs to both $\mathcal{L}$ respondents. $\sim$ $\sim$