Doshia v William Matungi and Company (Civil Suit No. 685 of 1954) [1955] EACA 83 (1 January 1955)

## ORIGINAL CIVIL

Before CRAM, Ag. J.

## MOTICHAND DEVRAJ DOSHIA, Plaintiff

ν.

## WILLIAM MATUNGI & COMPANY, Defendant Civil Suit No. 685 of 1954

African Affairs—Credit to Natives (Control) Ordinance, 1948—Whether proviso to section 2 (1) applies to paragraphs (a) and (b)—African trading under own name but with addition—Registration of Business Names Ordinance, 1951, section 4 (b)—Whether business name requires to be registered—Credit in excess of Sh. 200—Whether suit could be maintained.

An African traded under the name of "William Matungi & Company" of which business he was sole proprietor. He obtained credit in his business name in excess of Sh. 200. On being sued he pleaded that the suit was not maintainable because of the statutory bar contained in section 2 (1) $(a)$ of the Credit to Natives (Control) Ordinance, 1948; further, that the proviso contained in the section applied to paragraph 2 (1) $(b)$ only and not to credit transactions paragraph 2 (1) $(a)$ , and further that his trade-name did not require to be registered under the provisions of the Business Names Ordinance, 1951.

Held (18-10-55).—(1) Legislation is ordinarily divided into sections, sub-sections and paragraphs and as the proviso contained in section 2 (1) of the Credit to Natives Ordinance, 1948, was applied to the sub-section it must be held to apply to both paragraphs contained in that sub-section.

(2) Although an African had been given credit in excess of Sh. 200 he was trading under a business name which consisted of his own name, with addition, requiring registration in terms of section 4 (b) of the Business Name

G. J. Amin for plaintiff. $G$ .

A. M. Cockar for defendant.

RULING.—The plaintiff firm sues defendants named as "William Matungi and Company" alleging a sum due in respect of repairs done and spare parts supplied to a vehicle belonging to and at the request of the defendant. The defence runs:-

"... the sole proprietor of the defendant's firm being an African the suit is not maintainable by reason of the provisions of the Credit to Natives (Control) Ordinance, 1948."

The reply is that, as the African is trading under a name that ought to be registered under the provisions of the Business Names Ordinance that relief cannot be invoked. The defendant ripostes with the submission that the proviso to section 2 (1) (b) of the first Ordinance does not apply to section 2 (1) (a). All the questions are open ones.

The law reports contain only cases which arose under the repealed (and substantially different) Credit Trade with Natives Ordinance, Cap. 130 of the Laws of Kenya, 1926. The important proviso at issue did not complicate the simpler clauses of the old Ordinance.

Section 2 (1) (a) of the Credit to Africans (Control) Ordinance, Cap. 104, $runs: -$

"Subject to the provisions of this Ordinance-

(a) where a non-African grants to any African, whether in respect of one or more transactions, credit in excess, in the aggregate, of a sum of two hundred shillings, no suit shall lie, in any court in the Colony for the recovery of such sum unless the contract, in respect of which the credit was given, is in writing and approved and attested by an attesting officer."

The transaction alleged granted credit in excess of two hundred shillings. I reject the submission by the plaintiff firm that section 2 (1) (b) is appropriate because in my view it deals with rights of redemption. By Government Notice No. 1066 of 1948, contained in the Official Gazette of 9th November, 1948, all magistrates were appointed to be attesting officers for the purpose of the Ordinance but it has been admitted at the Bar that the contract alleged has not been attested as required by section 2 (1) $(a)$ .

The defendant argued that the proviso which is found at the bottom of section 2 (1) (b) does not apply to section 2 (1) (a). The proviso is as follows: $-$

"Provided that the provisions of this sub-section shall not apply to any" transaction where the African to whom the credit is given is carrying on business under a name registered, or which required to be registered, under the provisions of the Business Names Registration Ordinance." (The marginal. note indicated Cap. 289, but this Ordinance has been repealed and replaced by the Registration of Business Names Ordinance, 1951.)

In legislation, Acts are divided into sections and these in turn into subsections; sub-sections are ordinarily subdivided into paragraphs. Section 2 is divided into three sub-sections and sub-section (1) in turn into two paragraphs. (a) and (b). The proviso therefore in my view applies to the whole of sub-section $(1)$ .

Turning now to the Registration of Business Names Ordinance, 1951, so far as relevant, no difference is to be found with the repealed Ordinance.

Section 4 (b) runs: $-$

"Every individual having a place of business in the Colony and carrying." on business under a business name which does not consist of his surname, without addition, other than his forenames or the initials thereof ... shall be registered in the manner required by this Ordinance. ... "

The defendant admits that he is the sole proprietor of a business which he carries on in the Colony under a name which consists not only of his Christian and surnames, but also has in addition the words "and Company". The business name therefore has an addition other than his own names and so lawfully ought to have been registered under the Ordinance, which for registration, although not relevant to the issue, the defendant admits he has never applied.

It follows that, even although the defendant is an African and has obtained credit in excess of Sh. 200 under an unattested contract his submission in preliminary point of law is rendered nugatory by the proviso to section 2 (1) of the Credit to Africans (Control) Ordinance upon which he relies for the reason he has elected to trade under a registrable business name, nor would his defence on the preliminary point be effective had he conformed with the law and registered his business name.

The costs on this preliminary point of law to be the plaintiff's in any event. but the scale thereof is reserved for decision.