Cottar v Lime Limited and Another (Civ. App. No. 21/1937,) [1938] EACA 18 (1 January 1938)

## COURT OF APPEAL FOR EASTERN AFRICA

#### Before Sir JOSEPH SHERIDAN, C. J. (Kenya); FRANCIS, Ag. C. J. (Uganda); and LANE, Ag. J. (Kenya).

#### CHARLES COTTAR, Appellant (Original Plaintiff) v.

### 1. THE HON. ATTORNEY GENERAL FOR THE COLONY AND PROTECTORATE OF KENYA, AND

#### 2. LIME, LIMITED. Respondents (Original Defendants)

# Civ. App. No. 21/1937,

(Appeal from decision of Webb, J. (Kenya)).

Pleading-Practice-Plaint-Civil Procedure Rules, O. VI rr. 27, 28 and 29.

The appellant claimed for a declaration that he was entitled to a mining lease in respect of a certain claim or location. The plaint contained certain averments of fact but did not aver by what right the appellant claimed to be entitled to lease or whether the action. was founded on contract or on one or other of the Mining Ordinances, 1912 to 1933.

Held $(19-2-38)$ .—(1) That the plaint did not disclose a reasonable cause of action in as much as it did not disclose what right the plaintiff had to obtain the lease to which he claimed to be entitled and whether such right arose by contract or under one or other of the Mining Ordinances.

(2) That where a plaintiff relies on some breach of a statutory duty arising independently of contract the Statute (or Ordinance) should be referred to and the facts which bring the case within it sufficiently pleaded.

The appellant appealed from decision of Webb, J., whereby the action was dismissed under O. VI r. 29 of the Civil Procedure Rules (Kenya) under the ruling following: —

Webb, $J$ .—The plaintiff in his amended plaint sets out that in October, 1922, he registered four mining claims which were amalgamated into one under the Mining Ordinance, 1912, and registered in his name on 10-2-1923, that he has worked and developed the same with the knowledge of the 1st defendant, and that he obtained an Export Licence and Prospecting Licence under the Mining Ordinance, 1925. As owner of a mineral claim he had by section 33 (c) of Cap. $\frac{1}{2}$ 148, a preferential right to a mineral lease and in the meantime the sole right to mine and the ownership of the minerals found. Cap. 148 was repealed by the Mining Ordinance, 1925, and it by the Mining Ordinance, 1931, which was itself repealed by the Mining Ordinance, 1933, but in each repeal existing rights and interests appear to have been preserved. The plaint goes on to state, "no lease at any time has been issued to the plaintiff in respect of the said claim although the plaintiff has applied for the issue of such lease", and then alleges that in October, 1936, the plaintiff was warned to cease work on the claim by the Commissioner of Mines, and that in 1937 an Exclusive Prospecting Licence was given to the second defendants, who have taken possession of the area and the ore thereon won by the plaintiff, and the plaintiff claims a declaration that he is entitled

to a lease of the claim, on account of ore, etc., won since he was dispossessed or the value thereof, or alternatively an account of the value of his buildings and improvements and work and discoveries thereon and the value of the claim and payment of the sum so ascertained.

Defendants object that the plaint shows no cause of action, i.e. no right to the relief claimed, which, I note, does not include any claim for ore won by the plaintiff and alleged to have been taken by the second defendants. In effect the defendants say that there is a hiatus between the plaint and the claim in that it is not shown what right the plaintiff had to obtain a lease and whether such right arises by contract or under the Ordinances, or one of them.

In this, I think the defendants are right. If the plaintiff's claim is for breach of contract then his pleading should set out the terms of the contract, its date, the parties to it and the breach with all necessary details. If on the other hand the plaintiff relies on some breach of a statutory duty arising independently of contract the Statute (or Ordinance) should be referred to and the facts which bring the case within it sufficiently pleaded (Bullen and Leake, 9th Ed. 37). As the plaint stands, I am unable to see how the defendants could plead to it; they cannot deny a contract where no contract is alleged, nor can they set up facts, if such there are, disentitling the plaintiff to a lease under some one or other of the Ordinances when the plaintiff has not shown how nor under which of them he asserts that he has or had a right to obtain a lease. This consideration seems to me to dispose of the contention that the defendants' proper course was to have applied under Order VI rule 27 because such an application could only be made after the pleadings have been closed. I am therefore of opinion that the defendants are entitled to succeed in this application, but as I am unwilling that any litigant should think that he has been debarred of his rights on any formal point, I am willing to consider any application that may be made for leave to amend. Failing such application the order will be that the amended plaint be struck out and the action dismissed and that the plaintiff pay to the defendants their respective costs in the action. Stay for one week granted.

Ross for the appellant.—It is not necessary and it is improper to plead a Public Statute or Ordinance: O. VI, r. 1 & 2.

The plaint sets out the facts and it is for the Court to apply the law in relation to those facts. O. VI, r. 29 should only be applied to frivolous or vexatious cases or where the point is a very clear and simple one: Moore v. Lawson and another (31 T. L. R. 418); Attorney General of the Duchy of Lancaster v. London and North Western Railway (1892 3 Ch. D. 174); Dyson v. Attorney General (1911 1 K. B. D. 410); Dadswell v. Jacobs (34 Ch. D. 278); Worthington and Co. v. Belton and others (18 T. L. R. 438); Roberts v. Charing Cross, Euston and Hampstead Railway Co. (87 L. T. N. S. 732) and Gilleghan and others v. Minister of Health (47 T. L. R. 439). The respondents should in a case like this which is neither frivolous nor vexatious have proceeded under Order VI r. 27.

Wallace, Acting Solicitor General for the Attorney General.—If the plaint does not disclose a reasonable cause of action it can be struck out irrespective of whether it is frivolous or vexatious.

As the plaint stood it was impossible to plead to it because no one looking at it could say whether the plaintiff was relying on a contractual or on a statutory right. Assuming that he was relying on a statutory right it is impossible to say which Statute was relied on as creating the right. The plaintiff might be relying on any one of the Mining Ordinances of 1912, 1925, 1931 or 1933. In any case in every one of the Ordinances a full discretion is given in the matter of the grant of leases.

Order VI r. 27 requires a pleading but in this case the respondents could not plead to the plaint. As the plaint stood the plaintiff could not have obtained judgment on it in default of appearance.

He referred to Thorp v. Holdsworth (45 L. J. Ch. D. 406), Attorney General v. De Keyser's Royal Hotel, Ltd. (1920 A. C. 508); and Philipps v. Philipps (4 Q. B. D. 127).

Harrison for the second respondent.—The provisions of Order VI r. 29 should be read disjunctively: South Hetton Coal Co. v. Haswell, Shotton and Easington Coal and Coke Co. (1888 1 Ch. D. 465). Under all the Mining Ordinances there is an absolute condition precedent which must be proved namely that the plaintiff must be the holder of a claim. If he claims under the Ordinance of 1912 (Cap. 148) he must plead and prove that he is the holder of a prospecting licence and a claim and that he has renewed such prospecting licence (Cap. 148, secs. 20, 21, 22 and 24). If the claim is under the Mining Ordinance, 1925, the claim-holder must have submitted an annual statement showing what development work had been done (section 44 (5)). That is a matter which should have been pleaded. The provisions of the 1931 Ordinance are very similar to those of section 3 of the Mining Ordinance, 1933, as amended in 1936. If the claim is under that Ordinance then a renewal under the provisions of the section must be pleaded and proved. None of these essential facts have been pleaded. Under all the Ordinances the grant of a lease is in the discretion of the Governor and there are other conditions too which vary with the various Ordinances. They are not pleaded and we could not plead them unless we knew which Ordinance was relied on by the appellant.

Under Order VI r. 27, we would have to plead first and then raise the law point but we could not plead to the plaint as it stood.

Ross replied.

Sir Joseph Sheridan, C. J.-I will take the following passage from Mr. Justice Webb's judgment and then proceed to examine the merits of the appeal in the light thereof: "Defendants object that the plaint shows no cause of action, i.e. no right to the relief claimed . . . In effect the defendants say there is a hiatus between the plaint and the claim in that it is not shown what right the plaintiff had to obtain a lease and whether such right arises by contract or under the Ordinances or one of them. In this I think the defendants are right. If the plaintiff's claim is for breach of contract then his pleading should set out the terms of the contract, its date, the parties to it and the breach with its necessary details. If on the other hand the plaintiff relies on some breach of a statutory duty arising independently of contract the Statute (or Ordinance) should be referred to and the facts which bring the case within it sufficiently pleaded (Bullen and Leake, 9th Ed. 37). As the plaint stands, I am unable to see how the defendants could plead to it; they cannot deny a contract where no contract is alleged; nor can they set up facts, if such there are, disentitling the plaintiff to a lease under some one or other of the Ordinances when the plaintiff has not shown how nor under which of them he asserts that he has or had a right to obtain a lease. This consideration seems to me to dispose of the contention that the defendants' proper course was to have applied under Order VI, rule 27 because such an application could only be made after the pleadings have been closed."

Mr. Ross for the appellant quoted to us many cases which seemed to me to bear on the applicability of Order VI, rule 29, to frivolous and vexatious suits. They do not to my mind help for what we have to consider is the disjunctive proposition contained in the rule whether the plaint "discloses no reasonable ground of action". It has been stressed that a principle of pleading is that facts only are to be stated. This submission requires some analysis. In a case of contract it is well-settled that the statement of claim may in general be regarded as in effect consisting of two principal parts viz. the statement of contract or right and the statement of the breach or violation of the right and in the case of actions for wrongs independent of contract "the right is frequently an existing fact which is implied by law without there being any necessity to show the origin or creation of such right. Thus certain rights are implied in law and are inseparably annexed to the person of the plaintiff, as the right to security of life and limb, liberty and reputation; and these it is unnecessary to allege. In such cases, the pleading states only the violation of the right, as that the defendant assaulted and beat the plaintiff, or that the defendant imprisoned the plaintiff, or that the defendant spoke of the plaintiff certain defamatory words. Similarly, in ordinary claims for injuries to property the right is, in general, sufficiently implied by law from the mere statement that the property was the plaintiff's, as for instance in actions for trespass to land or goods, where the statement of claim alleges that the land was the plaintiff's and the defendant broke and entered or trespassed upon it; or that the goods were the plaintiff's and the defendant seized and carried them away ..." (Bullen and Leake, 6th Ed. 45 and 46). From this we see that what is important in considering whether a cause of action is revealed by the pleadings is the question as to what right has been violated. In the present case Mr. Ross says his claim is not in contract or in tort, his submission being that he has complied with the rules of pleading by stating the material facts. I understand his answer to the passage quoted by Webb, J., from Bullen and Leake reading, "If on the other hand the plaintiff relies on some breach of a statutory duty arising independently of contract the Statute (or Ordinance) should be referred. to and the facts which bring the case within it sufficiently pleaded" to be twofold, first that the opinion is merely the authors' unsupported. by authority and secondly that it appears under a commentary on actions in tort. I regard neither contention as convincing. In the first place the proposition requires no other authority than to say that until Mr. Ross discloses the foundation of his right his cause of action does not become apparent and as to the commentary appearing where it does, I observe that in the 6th Edition it appears under the heading "The body of the Statement of Claim". It is but common sense and as I construe the rules of pleading the requisite procedure

to plead in such a way that the other side may be in a position to know what they have to answer, and where there is no defendant appearing, the Court before pronouncing upon the claim must have clearly before it in the pleadings the cause of action, i.e. in a case like the present a reference to the right that has been violated. Mr. Ross put an ingenious argument before us when he submitted that the Mining laws are part of the law of the land and consequently the Court must take judicial notice of them. True they are part of the law of the land but that does not in a case like the present abrogate the necessity of his pleading which law of the land (section and Ordinance) constituting the right has been violated. Apart from his obligation to plead it, we have not been informed of his reasons for not doing so. He was given an opportunity of amending for the second time his plaint and elected not to do so, as I understand, because it would have made his client responsible for the costs. In the view I take of the case, the acceptance of this offer would have been the less expensive course. I am in complete agreement with the construction put upon the relevant rules by Webb, J., and would accordingly dismiss this appeal with costs.

Francis, Ag. C. J..—Judgment read by the President with which I concur.

Lane, Ag. J.—The appellant is asking that the judgment of Webb, J., should be reversed; that judgment passed under O. VI r. 29, decided that no reasonable cause of action was disclosed in the amended plaint and ordered that the amended plaint be struck out and the action dismissed in default of an application for leave to amend on the part of the appellant (plaintiff). No such application was made and the action was accordingly dismissed with costs to the defendants.

The judgment found that the amended plaint had failed to disclose what right, if any, the appellant (plaintiff) had to obtain a lease (to which he had claimed a declaration that he was entitled) and whether such right arose by contract or under one or other of the Mining Ordinances.

The argument is that the judgment was wrong in that the amended plaint had complied with the rules of pleading laid down in Order VI, rule 1; and that the plaint had contained all the necessary elements to set up a cause of action.

The appellant's case is that he was not bound to plead law and that to have stated that he claimed a declaration by virtue of a right conferred by one or other of the Ordinances would have been to plead law, and not fact. The appellant says that he relies upon the law of the land and that he has stated in his amended plaint all that is necessary to set up a reasonable cause of action.

The case for the respondents is that the judgment of Webb, J., is correct in that there is a hiatus or lacuna between what is stated in the plaint and what is claimed; that what the appellant had failed to set out were part of the facts, i.e. facts connecting his past operations under the Mining Ordinances with any alleged rights arising from the provisions of the various Mining Ordinances and disclosing any grounds for the rights claimed.

It appears to me that there is weight in the respondents' contention that these were material facts which had to be pleaded to establish a reasonable cause of action, and that the appellant did not know what his cause of action was and was relying on the respondents' defences to indicate a cause of action. The learned Judge in the Court below could not upon the plaint, supposing there had been no defence, have entered judgment for the appellant without further proof of facts or hearing further argument. It was necessary for the appellant to plead as a fact the Statute or Statutes on which he relied in order to show that the rights which he claimed came within that Statute or Statutes. That connecting link was omitted in the plaint. It is said in Bullen and Leake 6th Edition, page 10, "and even in the case of relying on those things of which the Court takes judicial notice it is necessary to allege any facts which are required to apply them to the plaintiff or defendant or to the facts on which the right of action or defence rests". This appears to apply to the present case where the Court takes judicial notice of the different Mining Ordinances and where the appellant has not alleged the facts which are required to apply them to the appellant's claim. I would therefore dismiss the appeal with costs.