Court name
High Court of Tanzania

Hans Nagorsen vs BP Tanzania Limited () [1988] TZHC 42 (20 December 1988);

Law report citations
1987 TLR 175 (TZHC)
Media neutral citation
[1988] TZHC 42
Coram
Kyando, J.

Kyando, J.: At the commencement of the hearing of this case Mr. Raithatha, learned counsel for the defendant, took several points of objection to the plaint presented by the plaintiff.  The first point relates to the title of the plaintiff; at the head of the plaint the plaintiff is shown to be "HANS NAGORSEN (SUING AS G ATTORNEY) . . . . . . . . PLAINTIFF" and in para 1 it is stated in part:
   The plaintiff is an adult natural person, and duly appointed Attorney for Mr. Karl Wepfler currently not available in Tanzania, with power to represent the said Karl Wapfler in this suit. H
Mr Raithatha contended that from the above, it is clear that Hans Nagrosen is an agent and if that is the case he has no cause of action against the defendant for an agent cannot I have a cause of action of his own against a party.  He contended that in this case only Karl

Wapfler himself could have had a cause of action against the defendant. A
The second point Mr. Raithatha raised was that the power of attorney given to Hans Nagorsen by Karl Wapfler, a copy of which has been annexed to the plaint as Annexure "A", duly authorises Mr. Nargosen to "settle" the claim; it does not authorise him to file a B suit on Wapfler's behalf.  He (Mr Raithatha) therefore contended that Mr. Nagorsen has no authority to file this suit against the defendant.
Thirdly, Mr Raithatha contended that the Plaint has been signed by Mr. Maira.  It has C not been signed by the agent or by the plaintiff himself, Mr. Raithatha argued that this offends the provisions of O.VI r. 14 of the C.P.C.  He contended that even Nagorsen could not have signed it because the power of attorney he holds only authorises him to settle the claims; it does not authorise him to sign the plaint. D
Fourthly, Mr. Raithatha contended that under the "reliefs" prayed for the plaintiff has prayed for interest before judgment at 32%.  Mr. Raithatha argued that where interest before judgment is prayed there must be in the body of the Plaint a cause of action upon E which the interest is based.  He contended that in the instant case the plaintiff states no reasons why he is seeking the exorbitant interest of 32%.  He said that if this rate of interest is the commercial rate then the plaint should have averred existence of the custom of this kind of interest. F
Finally, Mr. Raithatha submitted that in para 4 of the plaint negligence is alleged against the driver of the defendant.  He said the defendant is therefore being sued on the basis of vicarious liability.  However, he contended, there is no averment in the plaint that the driver caused the accident while in the course of his employment.  He submitted that G failure to plead this makes the plaint fail to disclose a cause of action against the defendant.
For all the above points Mr. Raithatha prayed that the plaint be rejected, with costs.  He H said he was not praying that it be dismissed, but that it be rejected.
In reply Mr. Maira for the plaintiff submitted, first generally, that Mr. Raithatha's submissions have no merits whatsoever; he said they are an attempt at "hair splitting."  He then argued that Mr. Nagorsen has authority to conduct the case on behalf of the plaintiff in terms of O.III C.P.C.  He stated that he (Nargosen) has disclosed that he is I acting as an attorney and has disclosed his principal.  He said he cannot then see how he can be barred from suing as an

attorney.  He said Annexure "A" to the plaint authorises him (Nagorsen) to pursue this A matter and it is quite in order for him to file this suit on behalf of Mr. Wapfler.
Concerning the signing of the plaint Mr. Maira referred also to O.VII r.14 CPC. and argued that the provisions in that rule do not exclude an advocate or agent from signing pleadings. B
As regards failure to aver that the accident was caused by the driver in the cause of his employment with the defendant, Mr. Maira contended that this point is hollow as the cause of action arises out of an accident caused by the motor vehicle belonging to the defendant, for the benefit of the defendant.  He contended that this has not been denied C in the written Statement of Defence and that the only denial in the Written Statement of Defence is that the defendant was negligent.  He submitted that whether the driver was in the course of his employment with the defendant at the time he caused the accident need not be averred in the plaint but will be a matter to be proved by evidence D during the trial.  He contended further that there has been no plea made by the defendant that the driver was not acting in the course of his employment when he caused the accident.  He submitted that the words "duly authorised to drive the defendant's Air E gas fuel tanker" (which caused the accident) in para 4 of the plaint constitute a plea that the driver was acting int he course of his employment.
Finally, Mr. Maira submitted that in the unlikely event of my accepting Mr. Raithatha's contentions or submissions, I should hold that all the defects in the plaint are curable.  He F said such defects do not go to the merits of the case, they do not destroy the facts of the case.  He said under Section 95 CPC. therefore I should dispense with the technical defects so that the ends of justice are met.  He also submitted that under O.VII CPC, as amended, a defective Plaint cannot be rejected but it can be ordered to be amended.  He prayed that the objections raised by Mr. Raithata be overruled and the case be G proceeded with to hearing.
I will start with the contention that the Plaint should have averred that the driver caused the accident while in the course of the defendant's employment.  The relevant paragraph is paragraph 4 in the Plaint, wherein it is alleged: H
   The Plaintiff's claim arises from an accident caused by the defendant and/or its agent duly authorised to drive the defendant's Air gas fuel tanker, who while at the Dar es Salaam I International Airport negligently and/or carelessly drove the

   said tanker and caused an accident that resulted into extensive damages of the said Cessna A Air Craft thus grounding it from the 15th day off June, 1986, up to 14th January, 1987 when it finally got repaired.
It is clear from the above that no plea that the driver caused the accident while in the B course of his employment with the defendant has been made.  The words "duly authorised to drive the defendant's Air gas fuel tanker" do not necessarily convey the meaning that the driver was in the course of his employment as Mr. Maira contended, C for the driver could have had a general authority to drive the tanker but it cannot be concluded from that fact alone that he was driving in the course of his employment when he got involved in the accident.  Being authorised to drive a vehicle and driving in the course of one's employment are not necessarily the same.  A person may be authorised D to drive, but use that authority for frolics of his own.  I rule that the plea that the driver was in the course of his employment has not been made in the plaint.
Was it necessary to make the averment in the plaint that the driver caused the accident E while in the course of his employment with the defendant?  As indicated already, Mr. Raithatha says it was necessary and failure to aver renders the plaint fail to disclose a cause of action against the defendant.  Mr. Maira says it was not necessary as this element could be disclosed by evidence during trial.  Unfortunately neither counsel cited F any authority to support their respective arguments.  In the case of Fakurudin Ebrahim v The Bank of Tanzania [1978] LRT (Parts III & IV), n. 45 which was for action involving vicarious liability for the negligent driving of an employee, the driver who caused the accident was not joined as a party.  In the District Court the defendant successfully contended that the Plaint was bad for non-joinder.  On appeal, after G discussing and reaching the conclusion that it was not necessary to join the driver as a party, the late Biron J., observed:
   In my view, all that is necessary to set out in a plaint is the averment which if not traversed H would entitle the plaintiff to judgment.  And in a case of this nature all that is necessary to set out to, that vehicle caused the damage to the plaintiff's vehicle belonged to the defendant, that at the material time it was being driven by the defendant's servant or agent in the course of his I employment, and that the accident ...... was caused by the negligence of the driver (underlining supplied).

From the above passage in the Judgment of the late Biron, J., it is clear that it is A necessary for the plaint to aver that the driver or agent was in the course of his employment when he drove the vehicle which caused damage.  In my view the element of a driver being in the course of his employment is the foundation for his employer's liability and it must be specifically averred for the plaint to disclose a cause of action B against him, i.e. the employer.  As indicated already, in this case this element was not averred and the plaint as rightly submitted by Mr. Raithatha, does not disclose a cause of action against the defendant.
I will next consider the submission about the title of the plaintiff.  It is shown at the top of C the plaint that Nagorsen is suing as an attorney.  The letter authorising him to so do is said to be annexure "A" of the plaint.  It says:
D Mr. Kar Wipfler,
  c/o Transair
    P.O. Box 40154
      Dar es Salaam.
E 23/3/1987
M/S Robins Davies
(Africa) Ltd.,
P.O. Box 43675,
Nairobi
KENYA F
Dear Sirs,
Re:   CONFIRMATION OF AUTHORITY FOR MR. H. NAGORSEN G
Reference is made to your letter B8125/DSR of 20th February, 1987.  I herewith confirm, that Mr. Hans Nagorsen, P.O. Box 9302 Dar es Salaam is acting on my behalf, and is authorised to settle the claim of the damaged air craft. H
Since I am travelling a lot, I request you, to address all further correspondence to Mr. Nagorsen.
Yours faithfully,
(Sgd.) I
KARL WIPFLER.

As indicated earlier on above, Mr. Raithatha submitted that by the above letter, Mr. A Nagorsen has been authorised only to "settle the claim", and not to act as an authorised agent in terms of the provisions of Order III r. 1 of the Civil Procedure Code.
O.III r.1 CPC. provides: B
   (1)Any appearance, application or act in or to any court, required or authorised to be made or done by a party in any such court, may, except where otherwise expressly provided by any law C for the time being in force, be made or done by the party in person or by his recognised agent or by an advocate duly appointed to act on his behalf.  (Emphasis supplied).
I would readily agree that authorisation to settle a claim is not the same as authorisation D to appear, apply or do any act in or to any court within the meaning of those words as used in O.III r.1 CPC.  As I see it, Mr. Nagorsen was authorised to negotiate settlements out of court, of the claim.  He certainly was not, by the above letter, authorised to institute a suit or suits.  The institution of the present suit by him was done without authority or power therefore. E
Then there is the question of signing of the Plaint, O.VI r.14 CPC. provides:
   14 Every pleading shall be signed by the party and his advocate (if any) provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it F may be signed by any person duly authorised by him to sign or to sue or defend his behalf.  (Emphasis supplied).
The plaint in this matter has been signed by Mr. Maira, the plaintiff's advocate.  He has G signed the verification also.  While, in terms of the provisions of O.VI r.14 CPC. above, he could have signed with the plaintiff, he cannot certainly sign a plaint alone, on behalf of the plaintiff, as an advocate.  His having signed the plaint in this case renders it (the plaint) therefore defective. H
Then there is the point whether an agent can have a cause of action against a party on behalf of his principal.  O.VI r.14 CPC which I have reproduced above says a pleading, where a party is unable to sign it, may be signed by any person duly authorised by him to sign or to sue or defend on his behalf.  The reference to suing in this rule shows that an I agent can be authorised to sue on

behalf of his principal.  Where there is such authority therefore there is no reason why he A should not institute a suit on behalf of his principal and it cannot be said by so suing he cannot have a cause of action against the defendant.  However, in this case, as already held above, there is no power conferred upon Nagorsen to sue as such.  So he filed the suit as agent without having been given power  by his principal to do so and that was B wrong, and makes the plaint defective.
Finally concerning the interest of 32% sought in the plaint, clearly the plaintiff should show if such scale of interest is authorised by commercial custom or not.  He has not C done so and this also renders the plaint defective.
The above are all the points raised by mr. Raithatha and I have found that they are all valid points.  I uphold his objections to the plaint on the basis of these points.  The question is what is the result then?  Mr. Raithatha as already shown, submitted that I D reject the plaint, with costs.  Mr. Maira, on the other hand, submitted that I merely direct that the plaint be amended and invoked Section 95 of Civil Procedure Code.
Concerning the objection on the ground that the plaint does not disclose a cause of action against the defendant because it does not aver that the driver was in the course of E his employment when he was involved in the accident the proviso to O.VII r.11(a) CPC., as amended, (or rejection of plaints) provides that if the court is satisfied that if the plaintiff is permitted to amend the plaint, the plaint will disclose a cause of action it (the court) may allow the plaintiff to amend the plaint subject to such condition as to F costs or otherwise as the court may deem fit to impose.
In the instant case, I am satisfied that if the averment that the driver was driving in the course of his employment is made in the plaint, it (the plaint) will disclose a cause of G action against the defendant.  Accordingly, I will order that the plaintiff should amend the plaint to include the element I have just referred to above.
As regards the objections on the ground that Mr. Nagorsen as agent cannot have a cause of action against the defendant and that he had no power of attorney to sue but H only to settle, Mulla in Code of Civil Procedure, 13th Edition Vol.I, says at p.669:-
   ...It has been held that an objection that the institution of the suit is not within the authority conferred by the power of attorney should be taken at the earliest possible opportunity and I before issues are framed and that even when an objection

   is so taken and sustained, the court should not reject the plaint but given an opportunity to the A parties to rectify the defect.  (Underlining supplied).
The above is the position under the Indian Code of Civil Procedure.  As the provisions B to which the above passage relates are similar to those in our CPC.  I am of the view that the same is the position in this country also.  So I will not order a rejection of the plaint.  Instead I will order the plaintiff to rectify the defects to which the objections I have mentioned above relate.
Concerning the question of signing and that of the rate of interest, those also are defects C which the plaintiff should rectify;  I will not order that the plaint be rejected because of them either.
In the final result then, the plaint is to be amended so that the defects pointed out herein are rectified.  The defendant is awarded costs for successfully raising his objections to the plaint. D
It is so ordered.

E