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TABLE OF CONTENTS

1.0 INTRODUCTION................................................................................................................... 2

2.0 BRIEF SUMMARY OF THE CASE .................................................................................... 2

3.0 ISSUES TO BE DISCUSSED ................................................................................................ 2

4.0 DISCUSSION OF THE ISSUES IN QUESTION ................................................................ 3

4.1 Whether there was any breach of a partnership agreement? ......................................... 3

4.2 Whether the decree of dissolution of partnership fall within the ambit of ‘any other
relief’, which was a prayer inserted in the plaint? ................................................................. 6

5.0 CONCLUSION ....................................................................................................................... 8

6.0 REFERENCES ........................................................................................................................ 9


1.0 INTRODUCTION
The work forth will hinge on the analysis of facts in the case of Anthony Ngoo & Davis Anthony
Ngoo V Kitinda Kimaro, Civil Appeal No. 25 of 2014, examining different elements such as the
breach of partnership, components building up a partnership and the law of pleadings as it relates
to the case at hand, specifically testing the limits and parameters of the prayer known as ‘any
other relief’ as usually set in plaints.

2.0 BRIEF SUMMARY OF THE CASE


The case of Anthony Ngoo & Davis Anthony Ngoo V Kitinda Kimaro, Civil Appeal No. 25 of
2014, involves an appeal which arose form the decision of the High Court of Tanzania ata
Arusha Civil Case No.17 of 2010, delivered by Sambo J. The Background to this case is that the
appellant and respondents were co owners of a mining license issued by the Ministry of Energy
and Mining relating to a plot situated at Mererani in Simanjiro District, Arusha Region. The
respondent claimed that the appellant did not act in good faith, not rendering the true accounts of
the business and therefore cutting off his legitimate profit in their partnership. The High Court
granted the respondent a number of remedies including specific and general damages. The
appellant was aggrieved hence this appeal, which was eventually allowed.

3.0 ISSUES TO BE DISCUSSED

 Whether there was any breach of a partnership agreement?

 Whether the decree of dissolution of partnership fall within the ambit of ‘any other
relief’, which was a prayer inserted in the plaint?
4.0 DISCUSSION OF THE ISSUES IN QUESTION

4.1 Whether there was any breach of a partnership agreement?


Partnership is a common law concept. A Partnership business is a legal relationship formed by
the agreement between two or more individuals to carry on a business as co-owners sharing
management and profits. A partnership is a business with multiple owners, each of whom has
invested in the business.1 It is defined under the Law of Contract Act under section 190 (1)2, “it
is the relationship which subsists between persons carrying on business in common as defined
with a view of profit.”
Partnership firm is the result of agreement between members as explained under section 191(1)3
that “the relationship of partnership arises from contract and not from status.” Its formation
therefore depends up on agreement of the firm members who consented with legal object and
lawful consideration. The agreement can be oral or written and in it, all agreement must be
shown.
Therefore ‘breach of partnership agreement’ entails the concept that a partner in a particular
firm has acted in default contrary to the terms and agreements set forth as the basis establishing
the partnership.4 Partners are bound to carry on the business of the partnership for the greatest
common advantage, to be just and faithful to each other, and to render true accounts and full
information of all things affecting the partnership to any partner or his legal representatives as
laid down under section 192.5 This was determined in the case of Zubaira Mussa v. Saudi
Selemani,6 whereby the court considered the plaintiff to be in breach of their partnership
agreement with the defendants by advancing a loan without their knowledge causing loss to the
firm. In a scenario where there is no deed guiding the partnership, the rules and rights are laid
down under section 1947, therefore acting contrary to this provision amounts to breach of
partnership agreement. Consequences of such a breach are stipulated under section 738 and 749

1
Gillies, P. (2004). BUSINESS LAW. 12th ed. Riverwood: Ligare Pty Ltd. pg 479
2
The Law of Contract Act [CAP 345 R.E. 2002]
3
ibid
4
Binamungu.G.S.M. (2000). ‘Business Law students Manual’. Dar es salaam: National Board of Accountants and
Auditors (NBAA)
5
The Law of Contract Act [CAP 345 R.E. 2002]
6
[1968] HCD no. 172
7
The Law of Contract Act [CAP 345 R.E. 2002]
8
ibid
9
ibid
But, so as to determine whether there was breach of partnership agreement or not, it is important
to first establish the premise on whether there was existence of a partnership between the
appellant and the respondent in this particular case. To determine on this vital premise, the
elements leading to formation of a partnership must be examined. These elements include the
association of two or more people on a venture to undertake business with the aim of generating
profit as provided under section 190(1)10 and the existence of an agreement or contract between
these individuals as required under section 191(1)11. According to the brief summary of the facts
produced by the judgment of this case, there is evidence of an association with the aim of
business undertaking between the appellant and the respondent and therefore satisfying the first
element but much doubt was casted on the second element which requires proof of an agreement
and terms set forth establishing the aforesaid claimed partnership. This is because the only piece
of evidence as produced in the High Court establishing the partnership is the primary mining
license "No. 0003601" in respect of the suit mining plot. The question propounded by the Court
of Appeal was whether such evidence was sufficient to establish the existence of a partnership
existence between the 1st appellant and the respondent?
Section 191(2)12 provides for rules used in determining whether a group of persons is or is not
partnership. subsection 2(a) provide that joint property, common property, right or interest does
not in itself create partnership. And though the parties to this case were entitled to share profits
from the suit mine plot, subsection 2(c) states that receipt of such a share, or of a payment
contingent on or varying with the profits of a business, does not of itself also make an individual
a partner in the business, and in particular the receipt of such share or payment. As was held in
the case of Hassan s/o Sefu v. Muru s/o Mohamed.13 The court concluded that sharing of profits
did not necessarily make the parties partners.
As according to the evidence submitted during the civil case in the High Court, though the
respondent was in constant lamentation that the appellant breached the terms of the partnership
but no document was produced in the course of the trial indicating what the terms of the

10
The Law of Contract Act [CAP 345 R.E. 2002]
11
ibid
12
ibid
13
[1968] HCD no. 445
agreement were. Assuming that the contract was made orally, the witnesses brought to testify
before the court seemed ignorant of the particulars. The Court of Appeal held that;
“the terms of the partnership agreement have not been established.
No document was produced in the course of the trial indicating
what the terms of the agreement between the 1st appellant and the
respondent were. The respondent as PWl in his testimony at the
High Court merely complained that the appellant breached the
terms of their agreement. The terms were never laid bare and none
of the witnesses for the respondent in the trial came up with the
particulars. The testimony given by the respondent's witnesses were
merely speculative. The only document linking the 1st appellant and
the respondent is the primary mining licence. No agreement was
brought fourth specifying the terms and conditions agreed upon by
the parties. Nor was oral evidence provided to establish the nature
of the relationship between the 1st appellant and the respondent.”

Therefore, in conclusion as provided under section 191(1),14 a partnership arises from ‘contract’
and not status. The respondent failed to prove that there was a contract subsisting in this
acclaimed partnership, which created terms and agreements. It is safe to say a partnership never
existed between the parties to this case. Therefore this also means that there was no breach of a
partnership agreement.

14
CAP 345 R.E. 2002
4.2 Whether the decree of dissolution of partnership fall within the ambit of ‘any other
relief’, which was a prayer inserted in the plaint?
The inclusion of the term any ‘other relief’ in a plaint entails the fact that, the court may grant a
relief not specifically prayed for as it deems fit. This inference can be construed from Order VII
Rule 7 of the Civil Procedure Code,15 which states that “every plaint shall state specifically the
relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to
ask for general or other relief which may always be given as the court may think just to the same
extent as if it had been asked for; and this rule shall apply to any relief claimed by the defendant
in his written statement.” In the case of Sangeeta Chaturvedi v. Manoj Chaturvedit,16 the court
held that from order vii rule 7 of cpc (which is pari materia with Order VII Rule 7 of our law)
empowers this Court to grant relief other than that which is sought for, which may be found just
as if it had been asked for.

The scope and application of Order VII Rule 7 is limited. Though the court is empowered under
this provision to grant any general or other relief as it may think just, to the same extent as if it
has been asked for, this relief should not be of an entirely different description from the main
relief.17 Grant of larger relief than claimed out of the plaint’s context is generally
impermissible.18 This view has been followed in a number of cases; Smith v Smith.19 This was a
family case in Ireland. The Supreme Court discussing on this issue held that “… Mother asserted
she was entitled to receive child support as set forth by the guidelines and, in addition, prayed for
“such other relief as the Court may deem appropriate… [Although] Mother did not specifically
ask the family court to deviate from the child support guidelines in her complaint.”
In the case of Bachhaj Nahar v Nilima Mandal & Another.20 The court was of the view that
“..the court should confine its decision to the question raised in pleadings. Nor can it grant a

15
CAP 33 R.E 2002
16
RFA no. 24/2004
17
Mogha, G.C & Dhingra, S. N. (2013). Law of PLEADINGS in India. New Delhi: Eastern Law House. p. 25
18
Saharay, H.K. (2010). Pleadings and Practice. 9th ed. New Delhi: Universal Law Publishing Co Ltd. p.166
19
67 P.3d 351 (OK Civ App 2002)
20
[2008] 17 SCC 491
relief which is not claimed and which does not flow from the facts and the cause of action
alleged in the plaint.”
In Zuberi Augustino v Anicet Mugabe.21, the court granted relief to the respondent under the term
‘other relief’, though failing to prove specific damages. This relief was based on what was asked
of in the main relief.

On the other hand, there are specific procedures for dissolution of partnership by the court. This
is provided for under section 215 of the Law of Contract Act,22 which states that the court will
decree dissolution of partnership upon application of a partner. Therefore such a decree due to
its impactful weight is to be made upon application by the parties. Order XX Rule 15 of the Civil
Procedure Code23 provides that
“Where a suit is for the dissolution of a partnership, or the taking of
partnership accounts, the court, before passing a final decree, may pass a
preliminary decree declaring the proportionate shares of the parties, fixing
the day on which the partnership shall stand dissolved or be deemed to
have been dissolved and directing such accounts to be taken and other acts
to be done as it thinks fit”

In concluding this issue, examining the case at hand, the High Court took it out of proportion
decreeing dissolution of partnership under the prayer ‘any other relief’. This is because such a
relief is not in the context of the main relief as demanded by the respondent. The respondent’s
prayer hinged on specific damages and general damages, the dissolution of partnership falls in
neither of the two. The general rule in a breach of contract is that innocent parties are entitled to
such damages as will put them in the position they would have been in if the contract had been
performed.24 An order for dissolution of partnership defeats this rule, since this will put the
respondent in a much lesser state if offered recklessly by the court. Therefore the specific

21
[1992] TLR 137
22
ibid
23
CAP 33 R.E 2002
24
Elliot, C & Quinn, F. (2009). Contract Law. London: Pearson Longman. p. 331
procedures set by the Law of Contract Act25 and the Civil Procedure Code26 must be followed by
a court when deciding to decree dissolution of partnership, taking into consideration its
gravitational weight.

5.0 CONCLUSION
Generally both issues have been answered in the negative, and therefore concurring with the
judgment of the Court of Appeal on this case, on the fact that there was no breach a partnership
agreement between the parties and the decree by the High Court on dissolution of partnership
was not necessary, since there are specific procedures that guide such a remedy to be offered.
This case offer important lessons that ‘partnership’ can be a tricky area to deal with and therefore
all elements that guide the operation of such a business association should never be overlooked.

25
CAP 345 R.E 2002
26
CAP 33 R.E 2002
6.0 REFERENCES

STATUTES
The Law of Contract Act [CAP 345 R.E. 2002]
The Civil Procedure Code [CAP 33 R.E 2002]

CASES
Zubaira Mussa v. Saudi Selemani [1968] HCD no. 172
Hassan s/o Sefu v. Muru s/o Mohamed. [1968] HCD no. 445
Sangeeta Chaturvedi v. Manoj Chaturvedit RFA no. 24/2004
Smith v Smith. 67 P.3d 351 (OK Civ App 2002)
Bachhaj Nahar v Nilima Mandal & Another [2008] 17 SCC 491
Zuberi Augustino v Anicet Mugabe [1992] TLR 137

BOOKS
Gillies, P. (2004). BUSINESS LAW. 12th ed. Riverwood: Ligare Pty Ltd.
Binamungu.G.S.M. (2000). ‘Business Law students Manual’. Dar es salaam: National Board of
Accountants and Auditors (NBAA)
Mogha, G.C & Dhingra, S. N. (2013). Law of PLEADINGS in India. New Delhi: Eastern Law
Saharay, H.K. (2010). Pleadings and Practice. 9th ed. New Delhi: Universal Law Publishing Co