Wakilii

Bapoo v Lion and Others (Civil Appeal No. 40 of 1956)

East African Court of Appeal · [1956] EACA 299 · 1950 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court of Tanganyika against order directing partial abatement of suit following death of co-plaintiff
Decision
Suit to proceed at the instance of surviving plaintiffs; deceased plaintiff's personal representative not required to be joined

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that section 45 of the Indian Contract Act does not apply to causes of action founded on quasi-contracts or contracts implied by law. Where the Indian Contract Act does not extend or apply, the common law governs. Under English partnership law, a chose-in-action vesting in partners passes to survivors on death of one partner. Order XXII, rule 2 of the Tanganyika Civil Procedure Rules permits the suit to proceed at the instance of surviving plaintiffs without joining the deceased's personal representative.

Outcome

Suit to proceed at the instance of surviving plaintiffs; deceased plaintiff's personal representative not required to be joined

Facts

Four individuals carrying on business in partnership in London as dealers in metals and minerals brought suit against a Dar es Salaam scrap metal dealer. The claim arose from two types of transactions: sales and shipments of scrap metal by the defendant to the plaintiffs' firm, and payments made by the firm in London to third parties at the defendant's request. The plaintiffs claimed a balance of Sh. 27,407/75 as money payable for money received and money paid at the defendant's request. The fourth-named plaintiff died on 10 October 1954 after the plaint was filed but before trial. The defendant took a preliminary objection that the suit abated and could only proceed if the deceased's personal representative was joined as required by section 45 of the Indian Contract Act.

Issues

  1. Whether a suit based on quasi-contracts abates on the death of one co-plaintiff or survives to the remaining plaintiffs.
  2. Whether section 45 of the Indian Contract Act applies to causes of action founded on quasi-contracts.
  3. Whether Order XXII, rule 2 of the Tanganyika Civil Procedure Rules permits the suit to proceed at the instance of surviving plaintiffs where the cause of action arises from quasi-contracts.

Orders

  • Appeal dismissed.
  • Order of the High Court varied.
  • Entry to be made on the record that the fourth-named plaintiff died on 10 October 1954.
  • Suit to proceed at the instance of the surviving plaintiffs.
  • Costs of the hearing on 27 February 1956 and 6 March 1956 to be the plaintiffs' in any event.
  • Costs of the appeal to the respondents.

Rules and key headnotes

Contract Law — Quasi-Contracts — Scope of Indian Contract Act — Contracts Implied by Law
The Indian Contract Act does not profess to be a complete code dealing with the law relating to contract. Where the facts do not bring the case within sections of the Act dealing 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.
Contract Law — Indian Contract Act Section 45 — Application Limited to Promises
Section 45 of the Indian Contract Act, which governs the rights of promisees in joint contracts, is limited to promises as defined by section 9 of the Act. It does not apply to causes of action founded on quasi-contracts or contracts implied by law where no promise exists.
Commercial Law — Partnership — Chose-in-Action — Survivorship on Death of Partner
Under English partnership law, 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. The ownership of a chose-in-action arising from a partnership transaction is governed by English law where the transaction occurred in England.
Civil Procedure — Abatement — Death of Co-Plaintiff — Quasi-Contractual Claims
Where a cause of action arises from quasi-contracts and vests in surviving partners under the substantive law, Order XXII, rule 2 of the Civil Procedure Rules applies. The suit may proceed at the instance of the surviving plaintiffs without joining the personal representative of the deceased plaintiff.
Civil Procedure — Necessary Parties — Distinction Between Substantive Right and Procedural Requirement
The question of the right to sue is determined by reference to the relevant substantive law. Only after that question is decided does the procedural question of necessary parties arise, which is governed by the lex fori, the rules of procedure in force in the jurisdiction.

Legislation cited (10)

  • Indian Contract Act s.9
  • Indian Contract Act s.45
  • Indian Contract Act s.69
  • Indian Contract Act s.70
  • Indian Contract Act s.71
  • Indian Contract Act s.72
  • Tanganyika Order in Council 1920 s.17(2)
  • Tanganyika Civil Procedure Rules Order XXII r.2
  • Tanganyika Civil Procedure Rules Order XXII r.3(1)
  • Tanganyika Civil Procedure Rules Order XXX r.4

Cases cited (3)

  • Irrawaddy Flotilla Co. v Bugwandass (1891) 18 I.A. 121
  • Besson v Esaji Allibhoy (1906) 2 E.A.L.R. 8
  • Naranbhai Ichharam v Lobo (1942) 9 E.A.C.A. 16

Full judgment

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Bapoo v Lion and Others (Civil Appeal No. 40 of 1956) [1950] EACA 299 (1 January 1950)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.