Manji v Bechar (C.A. 27/1938.) [1933] EACA 16 (1 January 1933)

## APPELLATE CIVIL.

# Before LANE, Ag. J.

### VELJI MANJI (Appellant) (Original Plaintiff)

# ARJAN BECHAR (Respondent) (Original Defendant). C. A. $27/1933$ .

Section 15, Civil Procedure Ordinance—Jurisdiction—Place where cause of action arises or where defendant resides, carries on business or works for gain.

**Held** (16-12-33).—That in a suit where the cause of action arises outside<br>the Court's jurisdiction, and where a party's normal place of<br>residence is outside the Court's jurisdiction, if such party is<br>temporarily within th cient to vest jurisdiction in the Court.

Figgis (Trivedi with him) for Appellant.

Phadke for Respondent.

In the lower Court, the plaintiff (appellant) brought an action against defendant (respondent) to recover possession of a motor lorry purchased by plaintiff from defendant for Sh. 1,000, of which the purchase price had been paid. In the alternative,he prayed for the return of the said sum of Sh. 1,000 and damages for the delay in delivery of the said vehicle. Defendant alleged that the Magistrate had no jurisdiction, as the parties resided in Uganda, and the cause of action arose there. Defendant also pleaded that as plaintiff was indebted to him, he had the right of set off of the purchase price of the lorry. The suit was dismissed on the ground that the Court had no jurisdiction, as the cause of action arose at Jinja.

Figgis.—The Resident Magistrate relied on section 15 of the Civil Procedure Ordinance, which governs the local limits of jurisdiction of courts in the Colony, but does not govern the general rule as to jurisdiction. Dicey's Conflict of Laws, 4th Ed., at p. 240. Cause of action arose in Uganda, but this does not matter if defendant is served within the jurisdiction of the trial court. Judgment obtained outside England may be enforced in England: Carrick v. Hancock, 12 T. L. R. 59; Harris v. Taylor (1915), 2 K. B. D. 580. Defendant served in England who was out of jurisdiction. Dicey (supra) at 396, re actions in personam. Person passing through a country is subject to jurisdiction of courts in that country. Doctrine of territorial dominion.

Phadke.-Local law limiting jurisdiction of courts must apply. Fernandes v. Ray, 25 Bombay 176. Must in any event be reason for action being taken outside normal court. Logan v. Bank of England (1906), K. B. D. 141.

Figgis.-Carrick v. Hancock disposes of Indian cases, and was the authority to the Resident Magistrate to hear the case.

JUDGMENT.-This is an appeal from the judgment of the learned Resident Magistrate, Nairobi, wherein he dismissed the plaintiff's action on the ground that there was lack of jurisdiction.

The plaintiff lives in Nairobi, and the defendant in Jinja, in Uganda; the cause of action arose at Jinja; the defendant had in the past lived at Nairobi, but had ceased to do so at the time of the action; he had come to Nairobi on a short visit, during which he was served with the summons in the suit. His defence was lack of jurisdiction in the Nairobi Court, and in this he succeeded, the decision being based upon the provisions of section 15. Civil Procedure Ordinance.

The appellant's case is that there was jurisdiction because at the time of service of the summons the defendant was temporarily in Nairobi within the jurisdiction, and that, no matter how short his stay in Nairobi, it was competent for the plaintiff to proceed against him and for the Court to try the case. It is based on the doctrine that a person when staying even temporarily in a country, enjoys the protection of that country's laws and therefore owes allegiance to those laws, and becomes subject to the courts of that country. The argument is that, provided that the defendant was served in Nairobi, the local Court had jurisdiction over him even in a cause of action arising outside the jurisdiction.

The learned Magistrate found otherwise on his construction of section 15, Civil Procedure Ordinance, and the first explanation thereto; i.e. the cause of action did not arise in any sense at Nairobi where the defendant was temporarily residing, so that on the point of "cause of action" the Magistrate evidently considered that he must non-suit the plaintiff. This point being in favour of defendant, and being rightly so decided, he held that the bare fact of defendant being temporarily located within the territorial limits of his Court did not grant jurisdiction. The main issue is whether this was right decision.

The arguments and authorities now put forward by the learned counsel for the appellant were before the Magistrate, and he decided that the provisions of the local Ordinance on a strict and limited construction prevailed.

It is argued for the appellant that these provisions refer only to the distribution of business between the local Courts of the Colony, i.e. to the domestic jurisdiction of the Colony's several Courts.

I cannot agree with this contention, but the issue remains. whether it is competent to construe the doctrine of territorial dominion with the local enactment to give jurisdiction in this case:

To give a local Court jurisdiction, there must be either a local cause of action or local residence on the part of the defendant.

But does defendant's temporary presence, and the fact that he was served in this country, constitute local residence? Does the doctrine of territorial dominion enable this construction to be given?

In Dicey's Conflict of Laws, 4th Ed., p. 59, it is laid down that in an action in personam (this is an action in personam). provided the defendant is in England, for however short a time at the time of service, and provided he is a natural person (e.g. not a corporation), the English Courts have jurisdiction. $\bold{_{\text{m}}}$ other words, the Courts have jurisdiction to entertain an action in personam against any defendant who is in England at the time of the service of the writ.

On the point whether actual residence by the defendant, in the strict sense, was necessary to grant jurisdiction, or whether his mere presence such as to enable him to be served with a writ was sufficient, the decision of Lord Russell of Killowen in the leading case of Carrick v. Hancock has been taken as the deciding authority. This dictum was to the effect that the jurisdiction of a court was based upon the principle of territorial dominion, and that all persons within any territorial dominion owe their allegiance to its sovereign power and obedience to all its laws and to the lawful jurisdiction of its Courts; the duty of allegiance was correlative to the protection given by the State to the individual, and that the question of the time the person was actually in the territory was immaterial. It is established then that the defendant's mere presence in the country for purposes of service was sufficient to grant jurisdiction.

Other cases have been cited where this principle was adopted. In Logan v. Bank of Scotland and Others, 1 K. B. 1906, the Court held that while there was jurisdiction in similar circumstances to entertain the action, where the cause of action had arisen out of the jurisdiction, it was proper to stay the action because no injustice would be done thereby to the plaintiff, and the defendant would be subject to such injustice in defending the action as would amount to vexation, to which he would not be subjected if the action were brought in a more accessible court. In this case the plaintiff lived in Scotland, the cause of action arose in Scotland, and the main defendants had their real place of business in Scotland, and it was shown to be much more suitable in every way that the action should be tried by a Scottish Court.

A somewhat similar decision was that in Egbert $v$ . Short, 1907, 2 Chancery Division, where the Court dismissed the action on the ground that it had been brought in England not bona fide but in order to harrass the defendant. The cause of action arose in India, the defendant lived there and his business was there. and all the witnesses and documentary evidence would have had to have been brought from there at great expense; moreover, the plaintiff herself had lived there, and could seemingly have brought the action there, and she was shown to have been living temporarily only in England. The Court, however, admitted the principle that there was jurisdiction in that defendant had been served in England while temporarily staying there, and merely exercised its right of dismissal on the ground of the vexatious nature of the action.

A further decision, that of the Bombay High Court in Fernandes v. Wray (1901), 25 Bombay, p. 176, has been cited. wherein a different proposition was accepted. It was held that the defendant's temporary residence in Bombay gave the Court jurisdiction; that prima facie a man may be said to dwell where he is staying at a particular time, but that it is open to him to show that he is in fact residing somewhere else. It has been argued that, acting on this decision, the defendant being actually resident at Jinja, could show this to take himself out of the Nairobi Court's jurisdiction.

It would appear, however, that the English decision must override this, and the doctrine of territorial dominion be held to apply. In other words, the words in section 15 (a) of the Civil Procedure Ordinance, "in whose jurisdiction the defendant at the time of the commencement of the suit actually and voluntarily resides", must be construed in accordance with the English decisions. to the effect that the defendant's temporary presence within the Court's limits at the time of service constitutes residence for purpose of jurisdiction.

Article 4 (2) of the Order in Council, 1921, in my opinion, provides the authority for extending the English doctrine to the construction of the local Ordinance.

It remains to decide whether the circumstances of the case are such that it would be proper for the Court to exercise its power of stay or dismissal on the ground that it would be vexatious and harassing for the action to be tried in Nairobi.

As the plaintiff resides in Nairobi, this is not on all fours with Logan v. Bank of Scotland and Others, where the plaintiff resided out of the jurisdiction, and where a great mass of evidence was to be brought from Scotland, including books of account and commercial records; nor with Egbert v. Short, where the plaintiff's real residence was not in the jurisdiction, where there would have been great hardship upon the defendant to bring his evidence from India, and where it was held that there was an absence of bona fides in the choice of forum. The principle to be adopted is that the Court should not prevent a suitor from exercising his rights on any vague or indefinite principle (Higgins v. Woodhall, 6 Times Reports 1).

Since the plaintiff lives at Nairobi, and since, moreover, the defendant also appears to spend a good deal of time at Nairobi, and to have various associations there. I see no reason in this case why there should be a stay of dismissal on the ground of hardship to the defendant.

For the reasons given, I allow the appeal, and order that the decree of the Resident Magistrate, Nairobi, be set aside and that the Resident Magistrate proceed with the hearing of the merits of the case. Costs of the hearing in the lower Court and of this appeal to the appellant.