Kanti Printing Works v. Tanga District Council Civ Case 44-D-69 Marh 1970; Mustafa J.
The plaintiff firm filed an action against the defendant council for Shs. 23,756/75 being payment for medical cards sold and supplied to the defendant Council. The plaintiff firm supplied the cards at the oral request of an Executive Officer, of the defendant Council. When the cards were supplied, the defendant refused to accept them on the ground that they had not been ordered officially and plaintiff could not produce a written order or a local purchase order. The plaintiff got a local purchase order from the defendant after the defendant had refused to accept the cards but did not produce it to the defendants when demanding payment. The main issues which the court decided were: (1) Whether the plaintiff delivered to the defendant and the defendants accepted the cards, (2) Whether the suit was premature or maintainable.
Held: (1) “It cannot be said that the plaintiff firm did not know that the reason that defendant Council would not pay or accept thee was a contract was because of the lack of a written order or a local purchase order. Ramesh Patel himself has admitted that the Council only makes payment when the invoice is accompanied by a Local purchase order is produced; the defendant Council cannot make payment. The non-production by the plaintiff firm of a local purchase order which it alleges it received is inexplicable.
In the circumstances it is quite possible that the local purchase order allegedly received by the plaintiff firm may have been a fake, or a blank or may have been a local purchase order referring to another transaction. If it was a genuine one referring to this matter, I can see no reason why it was not produced to the defendant Council prior to August 1969, especially as Ramesh Patel has said he had the local purchase order with him since December 1967. There has been no evidence at all of the contents of the said local purchase order, nor is there evidence as to who had signed the local purchase order, assuming it was signed, nor that the signatory, if any, was an authorized person who could sign a local purchase order for the defendant Council. I therefore find on the evidence that it was likely that the plaintiff firm had received some sort of local purchase order, but there is no evidence as to what the contents of the local purchase order were, nor is there evidence that the local purchase order was signed by an authorized person. In the circumstances, I am of the view that the plaintiff firm has failed to prove that the defendant Council had issued a local purchase order in respect of this particular transaction for the printing of 100,000 cards. I have already said that there was no acceptance by the Council of the cards when they were sent to the Council by the plaintiff firm, and the plaintiff firm has failed to prove that the defendant Council had issued a local purchase order in respect of this particular transaction for the printing of 100,000 cards. I have already said that there was no acceptance by the Council of the cards when they were sent to the council by the plaintiff firm, and the plaintiff firm has also been unable to produce a note or memorandum in writing of the contract signed by the party to be charged or by his agent in his behalf in terms of section 6 of the Sale of Goods Ordinance, Cap. 214 of the Laws. Ramesh Patel has said he agreed with the District Council orally through Mr. Kasambala for the printing of the 100,000 cards at the agreed price of Shs. 21,000/- he also alleged such oral contract was confirmed in writing by a local purchase order from the defendant Council.
The defendant Council has denied that such a contract was officially entered into with the Council and insisted on the plaintiff firm producing a written order or a local purchase order to that effect. The plaintiff firm has failed to produce any written order or local purchase order, and in the circumstances, I am of the view that the plaintiff firm has failed to prove on a balance of probabilities there was a contract or an enforceable contract.” (2) “The Council has stated that in any event the suit is not maintainable in terms for section 152(1) of the Local Government Ordinance, Cap. 333 of the Laws. Section 152(1) reads – “No suit shall be commenced against an authority until one month at least after written notice of intention to commence the same has been served on the authority by the intending plaintiff or his agent.” Here, the statutory notice was dated 14th March, 1969, and sent by the plaintiff’s advocate to the Council on the same day. The Council received this notice on the 17th March, 1969. The suit was filed on the 16th April, 1969. The month mentioned in section 152(1) referred to above must mean a calendar month – see section 2 of the Interpretation and General Causes Ordinance, Cap. 1 of the Laws. A calendar month will be calculated from any day of the month to the corresponding day of the succeeding month – see Cheleta Coffee Plantations Ltd. v. Eric Nehlson (1966) V.A. 203 at 205. It is true that in the plaint, it was alleged that notice of intention to sue was given to the defendant on the 14th March, 1969, and this allegation was not denied or traversed by the defence. I therefore agree that it is accepted by the defence that notice of intention to sue was given by the plaintiff on the 14th March, 1969. But there is evidence that the defendant Council was served on the 17th March, 1969, and in terms of the provisions of section 152(1) of Cap. 333, no suit shall be commenced against an authority until one month at least after written notice of intention to commence the same has been served upon the authority. So the earliest date the case could have been commenced against the defendant Council would have been the 17th April, 1969 (the Council was served on 17th March, 1969) not taking into account the computation period, whereas the suit was filed on the 16th April, 1969. in my view, therefore, the plaint was premature and is not maintainable in the circumstances.” (3) Suit dismissed.
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