Bapoo v Lion and Others (Civil Appeal No. 40 of 1956) [1950] EACA 299 (1 January 1950)

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and BACON, Justice of Appeal

## NURMOHAMED REMTULLA BAPOO, Appellant (Original Defendant)

(1) RUDOLPH P. LION, (2) FELIX J. LION, (3) ERNEST M. GOLLANCE, Respondents (Original Plaintiffs)

Civil Appeal No. 40 of 1956

(Appeal from the decision of H. M. High Court of Tanganyika, Mahon, Ag. J.)

Procedure—Death of co-plaintiff—Whether suit based on quasi-contracts abates— Indian Contract Act, sections 9, 45 and 69 to 72—Tanganyika Order in Council, 1920, section 17 (2)—Tanganyika Civil Procedure Rules, Order $XXII$ , rule 2.

This was an appeal against an order of the High Court which directed that a suit abated so far as one of the original plaintiffs, who had died, was concerned, but survived as regards the other three. The cause of action arose from a series of quasi-contracts between the four plaintiffs who carried on business in partnership and the defendant. A preliminary objection was taken by the defendant that on the death of one of the plaintiffs the cause of action rested not with the survivors but only with them and the personal representative of the deceased jointly by virtue of section 45 of the Indian Contract Act.

Held (30-8-56).—As the cause of action arose from a series of quasi-contracts, section 45 of the Indian Contract Act did not apply but that Order XXII, rule 2, of the Tanganyika Civil Procedure Rules applied and therefore the suit could proceed at the instance of the surviving plaintiffs.

Appeal dismissed.

Cases referred to: Irrawaddy Flotilla Co. v. Bugwandass, (1891) 18 I. A. 121;<br>Besson v. Esaji Allibhoy, (1906) 2 E. A. L. R. 8; Naranbhai Icharam v. Lobo, (1942) $9$ E. A. C. A. $16$ .

Masters for appellant.

Walker for respondents.

BACON, J. A.—This is an appeal by the original defendant against an order of the High Court of Tanganyika which apparently purported to direct that the suit abated so far as one of the four original plaintiffs was concerned but survived as regards the other three. I say "apparently purported" because misleading errors occurred in the wording of the order, but the order was, nevertheless, no doubt intended to bear the above-mentioned meaning and all concerned in this appeal have so interpreted it.

The suit was brought by four individuals as joint plaintiffs, their names being followed by the words "carrying on business in partnership in the firm name or style of Philipp and Lion". The written statement of defence tacitly admitted that the plaintiffs were dealers in metals and minerals carrying on business in London. It is thus common ground that the plaintiffs were in commercial partnership. The defendant-appellant was at all material times a dealer in scrap metals conducting his business at Dar es Salaam.

A series of transactions took place between the London firm and the appellant, out of which the suit arose. The transactions were—admittedly, according to the pleadings—of two kinds. The first kind consisted of a number of sales and shipments of scrap metal by the appellant to the firm; the second kind consisted of payments made in London by the firm to third parties at the appellant's request. By their plaint the plaintiffs alleged that various sums of money were transmitted by them from time to time to the appellant on account of the price of scrap metal to be supplied, and that two such payments to third parties took place. They alleged that on balance the sum of Sh. 27,407/75 was due from the appellant and they claimed it as "money payable to the plaintiffs by the defendant for money received by him for the use of the plaintiffs and for money paid by the plaintiffs for the defendant at his request".

The defence, set-off and counterclaim was to the effect that the appellant was entitled to be credited with several trading items with which he had not been credited in the particulars of the claim, with the result that a balance of Sh. 21,733 was due to him.

The alleged cause of action was thus expressly founded on a series of quasicontracts or agreements implied by law and nothing in the pleadings indicated that the dispute could or should be resolved on any other footing.

The plaint was filed on 2nd December, 1953, the written statement of defence. set-off and counterclaim on 2nd June, 1954. On 10th October, 1954, the fourthnamed plaintiff died. By a letter dated 5th November, 1954, the defendantappellant's advocate drew the plaintiffs' advocate's attention to that fact and said he assumed that application would be made by the surviving plaintiffs to join the deceased partner's personal representative as a party. However, no such step was taken and in due course the trial commenced on 27th February, 1956, whereupon the defendant-appellant took the preliminary point that by virtue of section 45 of the Indian Contract Act the cause of action rested, not with the surviving partners, but only with them and the personal representative of the deceased partner jointly. The learned trial Judge overruled that submission and his decision purported to be embodied in the order now under appeal.

The sole question with which we have to deal is, therefore, whether or not the suit abated in the circumstances which I have mentioned.

Mr. Master for the appellant based the whole of his argument on the proposition that section 45 of the Indian Contract Act constitutes the relevant statutory provision and that no rules of procedure made under the Civil Procedure Code can modify or affect the operation of that section. If he were right in his contention that section 45 applies to the present case this appeal would, I think, succeed. But in $my$ view that section does not apply.

The governing factor is, in my view, the nature of the cause of action as disclosed by the plaint. It may well be that a claim founded on contract (or perhaps on a series of contracts) could have been brought so far as the transactions in scrap metal were concerned. But, in fact, no such claim has been pleaded; the entire plaint is based on quasi-contract and nothing else, in other words on the English conception of contract implied by law. It is doubtful how far a contract implied by law is imported into the Indian Contract Act. Section 9 defines promises express and implied, but it is well settled that what is there called an implied promise leading to an implied contract is limited to cases where the implication is one of fact: see Pollock and Mulla on the Indian Contract and Specific Relief Acts, 5th ed., p. 61, and *Sinha* on the Indian Contract Act, 1950 ed., Vol. 1, p. 126. It is true that the Indian Contract Act contains provisions somewhat analogous to the English conception of contract implied by

law inasmuch as $b<sub>y</sub>$ section 69 to 72 various circumstances are prescribed in which a claim may be founded on the statutory liability although the parties did not enter into an agreement. Of those provisions, section 70 is the only one which might conceivably have been regarded as applying to the present case; but it appears to have been consistently held that a payment made at the express request of the defendant (such as were all the payments made by the firm in this instance) does not give rise to an obligation under that section: see Pollock and Mulla, op. cit., p. 380. But, even if section 70 did apply to a case such as the present one, that would not help the appellant since the condition precedent for the application of that section is the absence of a promise. It follows that a chosein-action founded upon section 70 must be outside the scope of section 45. For section 45, which is framed on the footing of a "promise" made by one party to another, must be limited to promises as defined by section 9.

What, then, is the position as regards the English common law doctrine of contract implied by law? The Indian Contract Act "does not profess to be a complete code dealing with the law relating to contract. It purports to do no more than to define and amend certain parts of that law": Irrawaddy Flotilla Co. v. Bugwandass, (1891) 18 I. A. 121 at p. 129. Under section 17 (2) of the Tanganyika Order in Council, 1920, so far as the Indian Contract Act does not "extend or apply", the common law is to be applied. Where, therefore, the facts are not such as to bring the case within any of the sections of the Act which deal with "relations resembling those created by contract", but do constitute a case where the common law would imply a contract, it is permissible to found a cause of action upon such implication. And that, I think is the case here.

It is pleaded in the plaint and tacitly admitted by the defence that the payments made by the firm to third parties in London were made at the request of the appellant while he was in London. As regards the other limb of the claim, Mr. Walker for the respondents informed us that the trading agreement was also made in London and Mr. Master accepted this as the fact. Mr. Walker then raised the question as to whether the proper law of the contract or contracts in the instant case was that of England or of Tanganyika. I think that the point is academic, for the relevant law in each case is the same: whether the chose-inaction is an English or a Tanganyika one the ownership of it is governed by English law. Thus the English partnership rule applies: a chose-in-action in respect of a partnership transaction which originally vested in two or more partners vests, on the death of one of them, in the survivor or survivors.

It is only when that question of the right to sue has been decided by reference to the relevant substantive law that the procedural question as to the necessary parties arises. For the answer to this second question one looks to the lex fori, the rules of procedure in force in Tanganyika. The relevant rule is Order XXII, rule 2, which provides (inter alia) that in a case such as the present one "the suit shall proceed at the instance of the surviving... plaintiffs".

I should add that I have had the advantage of discussing this judgment beforehand with the learned President.

I would, therefore, dismiss the appeal with costs, but vary the order of the High Court by substituting for the operative parts thereof the following: —

- "It is ordered- - (1) that an entry be made on the record to the effect that the fourth-named plaintiff died on the 10th day of October, 1954; - (2) that the suit do proceed at the instance of the surviving plaintiffs; - (3) that the costs of the hearing on the 27th day of February, 1956, and the 6th day of March, 1956, be the plaintiffs' in any event."

WORLEY. President.—I have had the advantage of considering the judgment prepared by the learned Justice of Appeal. I agree with it and with the orders proposed therein. As we are differing from the learned Judge in the Court below, I will add a few words of my own.

As I understand the judgment and order appealed from, Mahon, J., $decided:$ —

(a) that section 45 of the Indian Contract Act applied to this case;

- (b) that the plaintiff's firm was not carrying on business in Tanganyika and. therefore, could not sue in the name of the firm under Order XXX or call in aid the provisions of Order XXX, rule 4; - (c) that because the right to sue did not survive to the surviving plaintiffs alone the legal representative of the deceased plaintiff should have been made a party under Order XXII, rule 3 (1); and this not having been done, the suit abated so far as concerned the deceased plaintiff.

What is not at all clear, however, is whether the learned Judge was of opinion that the surviving partners had no right to sue and that the suit should be dismissed or whether the suit abated only so far as the deceased plaintiff was concerned. I think the learned Judge in his judgment intended the latter and he certainly made no order of dismissal nor did he award costs to the defendant as one would have expected if he were dismissing the suit. The formal order is, however, ambiguous and it is to be regretted that the parties did not apply to the Judge to settle the order, a course which might possibly have avoided any necessity for an appeal.

On the view taken by this Court, however, section 45 of the Contract Act does not apply at all for the reasons stated in the judgment of Bacon, J. A., and, consequently, the proper rule to apply to this case was Order XXII, rule 2.

For a previous instance where recourse was had to the common law to supplement the provisions of the Indian Contract Act I would refer to Besson v. Esaji Allibhoy, (1906) 2 E. A. L. R. 8, where Hamilton, J., in the High Court of East Africa had recourse to the common law as to the liability of common carriers--as the Privy Council had done in 1891 in the Irrawaddy Flotilla Co. case cited by Bacon, J. A.

For a previous instance where this Court held that the Indian Contract Act does not profess to be a complete code dealing with the law relating to contracts, see Naranbhai Ichharam v. Lobo, (1942) 9 E. A. C. A. 16.

BRIGGS, Acting Vice-President.—I have had the advantage of reading the judgments of the other two members of the Court. I agree with both of them, and have nothing to add.