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Ephraim Obongo v. Naftael Okeyo, (PC) Civ. App. 98-M-68, 21/5/68, Seaton J.



Ephraim Obongo v. Naftael Okeyo, (PC) Civ. App. 98-M-68, 21/5/68, Seaton J.

Defendant, a lorry owner, used to collect cassava from plaintiff for selling. On one occasion, his lorry – driver and turn boy went to plaintiff to collect some bags of cassava; plaintiff refused to deliver the goods, demanding that they first produce some empty cassava bags which they had evidently taken another day, or some money. They returned to defendant’s wife, who gave them 24 bags and Shs. 190/-, and sent a not promising that everything would be taken care of when her husband returned from a journey. Plaintiff received no more money, and sued in Primary Court for the value of the cassava he had given them, and for some other.

Empty bags not returned, less the money and bags received. It was not disputed that the suit involved less than Shs. 2000/-, the jurisdictional maximum for suits in Primary Court. The court held that the claim should be against the wife and dismissed the suit; the District court, on appeal, gave judgment against defendant. On appeal to the High Court, defendant argued that the Primary Courts’ jurisdiction was limited to civil proceedings turning upon customary or Islamic Law, or civil proceedings to recover in the words of the Magistrates Courts Act, section 14(1) (a)(ii) --- “civil debts, rent or interest due to the Republic”, or to the government or any municipal, town or district council. He argued that plaintiff ’s was a claim in contract which had to be brought in District Court. Plaintiff replied that the words of the Act should be read “disjunctively,” giving the Primary Courts jurisdiction in all cases of “civil debt” where the amount involved is within the jurisdiction limit. 

`Held: (1) The present case involves an issue of privity of contract, “a rather subtle and technical point which perhaps Primary Courts could not deal with. This may have been a reason for excluding civil suits based on principles of contract from the jurisdiction of the Primary Court,” if that is in fact the effect of the Act. On the latter question, however, the Court made no further finding. (2)However, “(i)t has not been established to my satisfaction that a claim of this nature could not have been brought under customary law.” It is a simple case of a claim for goods delivered, “not … for breach of contract as such.” Also, despite the difficulty of determining whether the wife, the lorry-driver and the turn boy were acting “in the course of their employment” for defendant, “In suits between Africans living within a local community and doing business amongst themselves on a basis of trust, I consider it would not be in the interests of justice to import technical notions of privity of contract and other such notions, unless clearly required by the law to do so.” (3)_ There being no apparent reason why such a case could not be settled under customary law, there is no reason not to accept the District Court’s finding, supported by the evidence, that plaintiff  had dealt with servants of defendant whom defendant had probably authorized to act as they did. District Court judgment for plaintiff upheld, with a minor variance as to amount.

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