Njombe District Council v. Kanti Printing Works Court of Appeal Civ. App. 26-D-1970; Lutta J. A. and Spry V.P.

Njombe District Council v. Kanti Printing Works Court of Appeal        Civ. App. 26-D-1970; Lutta J. A. and Spry V.P.

            The respondent sued the appellant for the price of goods sold and supplied. In the High Court the appellant argued that by virtue of s.153 (1) of the Local Government Ordinance a suit commenced against a local authority for an act done in pursuance or execution of an Ordinance or of any public duties or authority had to be commenced within twelve months of the act and since the respondent’s action was brought twelve months after the cause of action had arisen the suit was time barred. The high Court rejected the argument [see 1970] H.C.D.120 and the appellant further appealed to the Court of Appeal.

                        Held: per Lutta J. A.  (1) It has been argued “that in purchasing the articles in question the appellant was discharging its duties under paragraphs 40, 41 and 43 of section 52 (1) of Cap.333, which are in the following terms:- [The judge then set out the provisions of the above sections and continued]. The above provisions do not impose an obligation or a duty on the appellant to enter into a contract with the respondent for the latter to supply the goods in question. However, in performing these duties, the appellant may or can do anything, including entering into a contract, which it considers will facilitate the performance of those duties – but that would be entirely voluntary on its part.  In my view the purchase of the educational exercise books or articles was         incidental to the duties imposed on the appellant under section 52(1) paragraphs 40, 41 and 43, and the contract with the respondent to supply the books was a voluntary one between the parties.  The rights of the parties were governed, not by section 52 of Cap.333 but by the contract. Thus the appellant’s failure to pay the price of the goods supplied was not an “act done in pursuance or execution or intended execution of an Ordinance or of any public duties or authority, or in respect of any alleged neglect or default in the execution of any such Ordinance, duty or authority.”  In my view there was no statutory duty to enter into such a contract or to pay the price or otherwise and the appellant’s act cannot be said to   have done in pursuance of section 52(1) of Cap.333 “(2) [per Spry J. A.] Section 153 of the Local Government Ordinance Cap.333 is clearly derived, directly or indirectly, from the English Public Authorities Protection Act, 1893, and there is therefore a considerable body of British cases of a highly persuasive authority.  [Citing, Bradford Corporation v. Myers (1916) A. C. 242; Hawkes v. Torquay Corporation (1938) 4 All E. R. 16; Griffiths v. Smith (1941) A. C. 170; Turburville v. West Ham Corporation (1950) 2 All E. R.   54; and Firestone Tire and Rubber Co. (S.S.) Ltd. v. Singapore Harbour Board (1952) 2 All E. R. 219].  At the risk of over-simplification, I think that the test which emerges from those cases is simply this:  was the act or omission complained of done by the authority in performance of a public duty or authority or in exercise of a statutory power incidental to such duty or authority?  In the abstract, the distinction is clear, but in practice it is not always easy to draw the dividing line.”  (2) It is in that connection that the Council entered into contracts with the respondents for the     purchase of text books, stationery, etc.” The learned trial judge held that these contracts were “incidental to the discharge of its public duty to provide education for the inhabitants of its district.”   Strictly, it was not a duty but an authority, having regard to the wording of section 52 of the Ordinance, but that is of no significance. I have no doubt that the decision of the learned judge was correct.  The Council was under no duty to enter into this contract, or to enter into any contract with the respondents. This was a private contract, intra virea the powers of the Council by section 46 of the Ordinance, and incidental to the running of schools. It was not the exercise of a public authority, but the exercise of a power incidental to an authority.”  (3) Appeal dismissed (Law J. A. concurring).