The plaintiff company sued the defendant company for Shs. 28, 780/- as the balance of the price of goods sold and delivered. The written statement of defence set up, inter alia, a set-off of Shs. 9,500/-. In its reply the plaintiff admitted the set-off. In addition, in paragraph 3 of the reply the plaintiff alleged that it had cancelled an order from the defendant before the order had been accepted; in paragraph 6, it alleged that it was justified in refusing delivery because delivery was late and “time was of the essence of the contract’. The defendant then raised a preliminary point that the case was not justifiable in the High Court because the admitted set-off reduced the claim to Shs. 19,280/- which was within the jurisdiction of the district court. In a second point, the defendant alleged that paragraphs 3 and 6 were inconsistent in that one denied the existence of the contract and one admitted it at least impliedly. The defendant moved that on of the paragraphs be struck.
Held: (1) “The mere fact that the sum now claimed is within the jurisdiction of the lower court does not automatically oust the jurisdiction of this court.” Also, the counter claim is in excess of Shs. 20,000/- and is not within the district court’s jurisdiction. To grant defendant’s sub-mission “would merely result in a multiplication of suits, and in different courts, wherein the issues are the same, which is obviously most undesirable”.
Parties may set up inconsistent or even diametrically opposed averments, but they should be laid in the alternative and that was not done here. However, the object of the pleadings is to inform the opposing party of the pleader’s case. Each case must be decided on its own facts, but in the
circumstances of the present case the issues are clear not fatal. Application to strike out rejected.
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