Hirji A. P. and Co. Panjwani, Civ. App. 25-D-71; 26/8/71; Law and Mustafa JJ. A., Spry V. P.

Hirji A. P. and Co. Panjwani, Civ. App. 25-D-71; 26/8/71; Law and Mustafa JJ. A., Spry V. P.

This is an appeal from the judgment of the High Court, reported at (1971) H. C. D. 177 on a procedural point. The appellant attacked the ruling of the trial court that a claim for damages was maintainable in respect of anticipated losses to the respondent. The respondent had bought a number of soap boxes bearing the trade mark “Simba” from the appellant. The trade mark turned out to be that of a third party and not that of the appellant vendor. The argument of the appellant was that the respondent had not suffered actual loss and therefore the claim was premature. He further submitted that the respondent had no cause of action as the agreement between them contained as indemnity clause to the effect that the “vendor undertakes to repay the purchaser any sums he might be called upon to pay on account of the use of the boxes.” The respondent sought to tender evidence to prove that the trade mark on the boxes was owned by a third party and that he would be in danger of being sued were he to use them.

Held: (Law J. A.) (1) “I do not see how we can take notice of such matters without amendment of the plaint. Preliminary points f law are argued on the basis that the facts pleaded are correct, see the observations by Sir Charles Newbold in Mukisa Biscuit. Co. v. West End. Distributors (1969) E. A. 696 at 701. There is nothing in the plaint to indicate that any third party is the owner of the trade mark “Simba or that the respondent will be at risk if he uses the boxes. If he does use the boxes, and becomes liable in damages to a third party thereby, he has his remedy under clause 5 of the agreement and can join the appellant as a party to any suit against him or otherwise claim to be indemnified. If he decides not to use the boxes, there is nothing pleaded to justify a claim for damages against the appellant in respect of that no-user. The situation which may arise in this case is expressly dealt with by the contract between the parties, and a court will not readily imply any provisions into a contract beyond those stipulated by the parties.” (2) Appeal allowed.