Dharsi Manji & Sons. V. Amri Saidi, H.C. Civ. App. 8-DDM-72, 18/8/72.

Dharsi Manji & Sons. V. Amri Saidi, H.C. Civ. App. 8-DDM-72, 18/8/72.

Held:   (1) The question whether a plaint discloses a cause of action is determined from the plaint alone together with any thing attached and forming part of it, on the assumption that any facts alleged or implied are true.

            (2) Unless a plaint by itself clearly discloses a cause of action, it must be followed by supporting particulars enabling the defendant to know the nature of the claim.

            (3) In a suit for the price of goods sold and delivered, the plaintiff must show the nature of the goods, the dates on which the goods were sold and delivered, as well as the dates of any payments on account.

MNZAVAS, J. – The appellant sued the respondent for Shs. 1,465/50 due for agree or, alternatively, reasonable price for goods sold and delivered to the respondent. Each party was represented by and advocate in the lower court. The learned trial magistrate after evaluating the whole evidence came to the conclusion that the appellant (original plaintiff) had failed to prove his claim on the balance of probabilities and dismissed the suit with cost. Against that decision the appellant has appealed to this court. Before this court the appellant was represented. The respondent did not appear.

The learned counsel for the appellant argued that the trial magistrate was wrong in holding that the appellant had failed to prove his claim against the respondent. It was argued that the magistrate had misdirected himself on the burden of proof in civil cases. It was submitted that the respondent having in his defence said that he had paid for the goods delivered to him by the appellant it was incumbent on him to show to the court how he effected payment. The learned counsel also argued that the respondent was not a very reliable witness as he, in his written statement of defence, denied ever buying any goods from the appellant but that he changed his story in his evidence in court where he admitted receiving goods from the appellant but adding that he had paid for all the goods he received from him. In support of his argument that the learned resident magistrate misdirected himself on the burden of proof the court was referred to page 755 of the Law of Evidence by Woodroffe and Amer Ali – 9^th Editions. Page 889 paragraphs 8 – SARKA on Evidence – Eleven Edition, was also quoted to the court.

            With respect I tend to agree with the learned defendant counsel that the learned magistrate failed in his judgment, to observe the inconsistencies in the defendant’s case. But with even greater respect to the learned counsel I would say that the plaintiff’s case is also no immune from irregularities. Dealing first with the defendant’s case he, in his written statement of defence dated 11^th October 1971, denied owing the appellant the sum claimed. He went on and said that he had never bought any goods from the appellant. The respondent gave a diametrically opposed defence in his evidence in court. There he admitted receipt of goods from the appellant but argued that he had paid the appellant for all the goods he received from him. This being the nature of the respondent’s defence in the lower court this court can only come to the conclusion that the defendant was either deliberately telling lie to the court or he did not know what he was talking about. His written statement of defence and his evidence in court could certainly not be both true.

            Coming to the appellant’s case I would say that it is very doubtful whether the plaint as presented by the appellant (original plaintiff) disclosed a cause of action. This being a suit for payment for the balance of the price of goods sold and delivered it was incumbent on the appellant to show with sufficient particularity the dates on which the alleged goods were sold and delivered, the nature of the goods as well as the dates on which payments on account were made . The appellant was clearly under a duty to particularize his claim so as to help the respondent (original defendant) to prepare his case. At this juncture I would like to mention that he defendant in par. two of his written statement of defence pleaded that the plaint did not disclose a cause of action. The learned resident magistrate did not deal with this aspect of the defence. He should first have decided this preliminary issue. Had he done so it is possible that he would have rejected the plaint under OR. V11, R.11 [Civil Procedure Code and there would have been no need for a trial. As it was held in AFRICAN OVERSEAS TRADING CO. v. TANSUKH S. ACHARYA (1963) E.A. 468: “The question whether a plaint discloses a cause of action must be determined upon a perusal of the plaint alone, together with any thing attached so as to form part of it, and upon the assumption that any express of implied allegations of facts in it are true.”

            In the present case the plaint had nothing attached to it in support of the claim. Read alone, the plaint does not disclose a cause of action as it is ambiguous. The learned counsel’s argument in par. Two of the memorandum of appeal that – “The learned Resident Magistrate ought to have held that it was not necessary for the appellant to attach a copy of an Invoice or Statement to the plaint as the appellant was not in possession of the original Document” is, with respect of no consequence. Unless a plain by itself clearly discloses a cause of action,

it must be followed by particulars in support of the claim so as to enable the defendant o know the nature of the claim so that he may be able to prepare his defence. In this case the plaint should have been followed with copies of entries in appellant’s shop-book showing the amount and type of goods delivered to the respondent, the amount of part payment and the balance. Copies of invoices should have been attached to the plaint so as to furnish the respondent with particulars of the claim. This the appellant did not do. The omission was, in my view, contrary to the mandatory provisions of or V11 R. 17(1) of the Civil Procedure Code. While still on the plaintiff’s case, I also agree with the learned magistrate that he plaintiff (present appellant) was rather vague as to what amount he was actually claiming from the respondent. His claim on his plaint materially differed from his evidence in court.

            As I have tried to show this is a case which has been decided on very unsatisfactory evidence. While primarily the blame could be attributed to the appellant in that his plaint did not properly disclose a cause of action, the defendant’s counsel was also to blame in that he failed to ask the court to decide the preliminary point first. The defendant’s defence opposed, as it was, to his written statement of defence is also to some extent a reflection on his credibility. It is my view that this is one of those cases where the trial court should have either rejected the plaint under OR. V11 R. 11(a) of the Civil Procedure Code or alternatively he could have ordered the plaintiff to furnish sufficient particulars to the plaint so as to enable the defendant o prepare his case. At this stage the best solution would seem to be to quash the proceedings and the judgment of the lower court, this I hereby do. The appellant is allowed to present a fresh plaint, this time in good form; and if he does so, the case is to be heard de-novo. No order as to cost.