Motokov  v. Auto Garage Ltd. and Others (1971) H. C. D. 81.

Biron,J.,

The plaintiff corporation sued the defendants for Shs. 275, 127/10 with interest being the amount due on bills of exchange drawn by the plaintiff on the first defendant and accepted by it and dishonored when presented for payment. The other two defendants are being sued as guarantors on the bills. The plaint averred that when the bills were presented for payment on their due dates to Statni Banka Ceshoslovenska, Praha, the same were returned un paid and still remain dishonoured. The written statement of defence averred that the plaint was vague and disclosed no cause of action. The defence further stated and it was argued as a preliminary point at the trial, that the plaintiff was not entitled to bring this action as it was not the holder in due course of all the bills of exchange since the bills were not endorsed in its favour by National and Grindlays Bank, Dar es Salaam, who were the holders of the said bills of exchange on the dates when they became due. The plaintiff then applied to amend the plaint by including in the alternative, a claim against the first defendant for Shs. 275, 127/10 being the balance due and owing to the plaintiff for goods sold and delivered by the plaintiff to the defendant between 1963 and 1965 and a further sum as interest. The application to amend the plaint was opposed on the grounds that: (a) a plaint which discloses no cause of action cannot be amended (Citing Husseinali Dharamsi Hasmani v. The National Bank of India 4 EACA 55); (b) the amendment would work injustice to the defendants in depriving them of the defence of limitation; (c) the amendment would introduce a new cause of action.

Held: (1) “Although the plaintiff is now in possession of the bills, it is generally agreed that that in itself does not make it a holder in due course”. The plaint showed the Statni Banka as the payee (and therefore holder) and the court could not imply in the plaint what was not there, that the Statni Banka was the collecting agent of the plaintiff. “It is trite to observe that a plaint must set out with sufficient particularity the plaintiff’s cause of action.” [Citing Sullivan v. Alimohamed Osman[1959] ea 239, 244]. “This fundamental rule of pleading would be nullified if it were to be held that a necessary fact not pleaded must be implied because otherwise another necessary fact that was pleaded could not be true.” Therefore the plaint does not disclose a cause of action. (2) The Hasmani case was not followed by the Uganda High Court in Gupta v. Bhamra[1965] EA 439 because (a) the Hasmani decision “rested on the interpretation of the Indian Civil Procedure code and Rules, which Rules have the same effect as if they were enacted in the body of the Code; whereas in Uganda the Civil Procedure Rules are made by a committee under powers given by the Civil Procedure Ordinance, which specifically provides that such Rules must not be inconsistent with the Ordinance. Thus, the Uganda O. 7 r. 11 (a) could not be applied inconsistently with s. 103, of the Ordinance;” However I cannot over-rule a case decided by the Court of Appeal, though I have little doubt that Hasmani’s case will no longer be held good law by the same court should the occasion arise, but this court cannot made such departure on the application of the doctrine of stare decisis.” But “a court where it is bound to follow a higher court is bound to follow the decision of such higher court and not what was said by the judges constituting the court in arriving at such decision, except what was necessary for the decision, whatever else was said by such judges being obiter dicta, which does not bind the courts;” “All that Hasmani’s case decided is that in claim on a dishonoured bill of exchange brought in a plaint filed as a summary suit under Order XXXVII of the Indian Civil Procedure Code, which disclosed no cause of action, the plaint could not be amended by adding further ingredient factors to the claim as laid, or by an amendment adding an additional claim for money had and received by the defendant for the use of the plaintiffs.” “What Hasmani’s case does not lay down is that a plaint filed in ordinary form claiming on dishonoured bills of exchange which disclosed no cause of action cannot be amended by adding a claim in the alternative, based on the original contract which in fact was the actual consideration for the bills of exchange drawn and accepted, as is sought in the instant case.” (3) First objection to the court’s power to amend the plaint is therefore rejected. (4) In support of the second ground of objection to amendment, the defendants cited a number of English cases which are no longer good law. The law in England is now laid down in Mitchell v. Harris Engineering co. Ltd. [1967] 2 All E. R. 682. “However, since independence and the abolition of appeals to the Privy Council, the English authorities are no longer binding on this court.” (Citing Rashid Moledina v. Hoima Ginners Ltd. [1967] EA 596. (5) “Very few cases are altogether alike, and each must be decided on its own merits. The over-riding principle is laid down in the very Rule itself, that “The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties”. “The making of amendments is not really a matter of power of a court but its duty, so that substantial justice may be done.” In this instant case, “apart from the fact that even in the plaint as it stands there is a reference in paragraph 6 to the agreement between the parties, and the very bills of exchange each and every one of them gives the invoice number or numbers under which they are drawn, in view of the fact that the defendants themselves have set up the agreement between the parties and its implementation, not only as a defence to the claim but also as a set-off and as the basis for a counterclaim against the plaintiff, it appeals to me most unrealistic even to allege that the amendement sought introduces a new cause of action and one that is time-barred.” (6) Leave to amend the plaint granted.

Merritt v Merritt [1970] 1 WLR 1211 Court of Appeal

A husband left his wife and went to live with another woman. There was £180 left owing on the house which was jointly owned by the couple. The husband signed an agreement whereby he would pay the wife £40 per month to enable her to meet the mortgage payments and if she paid all the charges in connection with the mortgage until it was paid off he would transfer his share of the house to her. When the mortgage was fully paid she brought an action for a declaration that the house belonged to her.

Held:

The agreement was binding. The Court of Appeal distinguished the case of Balfour v Balfour on the grounds that the parties were separated. Where spouses have separated it is generally considered that they do intend to be bound by their agreements. The written agreement signed was further evidence of an intention to be bound.