Civil Pr.cedure- Parties- Discreti.n .f C.urt t. add a plaintiff
where defence succel'lsful that .riginal plaintiff is wrong .ne

Contract - Assignment - Consent of. ether party - Necessary where
(l.nstract "pers.nal" - Whether' c.nsent gi ven

Partnership - Assignment- Cool'lent .f partner - Necessary where
Partnershi p "personal" in nature - Whether' conseDt givsn,

1. Where a contract between partners i8'of such a personal
nature that the personality of one partner was a vital p.int .f it,
the other partner cannot be charged with any duties with respect

to an assignee .f that partner unless he consented to the assignmen~.

2. Ve'J'y clear proof f.s neCI'!I!!I'ArV tn flh.w that a partner haa
conaente~ to t~e nssi~~mert by his partner, . a shrewd, experienced

 businesatllan~ to the latter' 8 inexperienced wi feD    Such pr •• f

is net shown where, alth.ugh many delivery orders are in the wife's
name, the final account f.r the year is in the husband's name and
the circumstances indicate it would hardly be likely that the
partner would be willing to substitute the wife as bis partner.

3. The Court should exercise its p.wer to add a plaintiff

where it is shown by th~ defendant that the .riginal plaintiff is the
wrong one to bring suit.

HughesVo Pump House H.tel Co. (N •• 2) (1902)
K. So 485₀

Ci\'il'Justice Ordinance 1929, Ord. 7, r. 8.

AppealI

December 22, 1947.

Cumi ngs L. S.

The main questi.n fer deci li.n in thi s appeal is whether Dimi tri Kyri azi s should have been the

plaintiff i'n this auit, and n.t his wife Maria.It ia admitted that there

is a right of acti.n .n the c.ntract sued .n in this case between the defendant

and either Dim"itri .r Maria Kyriazis, but it is claimed that that cauu .f acti.D I

is n.t in Maria but in Dimitri.    So the pdnt at isaue ia whetber that--.right

.f action is in Maria .r Dimitri.. On that.p.int the learned.Judge .f the Righ .
C.urt found in fav.ur .f the defendaDt, and the p.siti.n in this c.urt il therefo,

+ Court I Cumings, L.S., Simps.n, RoG., and M.A. Abu Rannat, D.J.

t.hat. it is for the p Lai uti ff to satisfy us that, the Judge of the Hi II-h

  The que at i ou arises in t h i e way.In 1934 Dimitri .{.yriazia and

de f'endant. had each a shop ill Dmdu rman ," and they de e.i d ed to COIQlJine the two
busi nel!ll!lea. Accordi !lily t.hey made a writt en contract (hhi hi t./p. 1).
The t.erms of thi i!I agreement nlt'ly be lummftri sed a"~ followl I

"Dimi st.ri Kyri azi sand d e f endant. each has a shop wi 1.11 aoode.

Ditoitri i(yriazis is to pay certp.in dei.lte of the tiel elllllllllt..
All the goods are t o be put into on e shop e ud goods fUl,l IIhop

  are to be the proiJerty of Dim~tri Kyriazi e. The' def~lldant

is to manage the shop with .• eela~ 0.1,1 comt'liluio.l Oil aa1e.
which are 'to be at prices con t r-o Ll ed •.• y Diloist.ri i{.yriazil.

Dei eadent is not to l"e 11.IY other busi neS8 except wi toh the
}lenni ssi on of Dimi stri "yri ad II. "

fhere is no express provision ia the contract for the lupply of other

goods to the shop, but once the parties began ~ practice whereby other goods

were supplied to the shop by Dirnist.ri "yriazia 011 written delivery order. for
disposal, and were disposed of on the same terms as those of,the writtell c ou t r e c t
and moneys were paid by the defendant to Dimistri Kyriazil!l at i're'.IUellt interval".
And the parti es also began a practi ce of tal.:illg an account every two yeaI'll!

 Ii stri Kyri azi e sent hilO] agent. OVer to the shop, who made a stoc~-tai<inl!.'

and with that, and the particulars Dimistri Kyriazis had in his bool(s of giidto
supplied and costa and mOlleys received from the defendant, Dimitri Kyriads

was able to prepare an accouat, of the t .•.•• o years wor:, which he then sent to th defendant.

'fhe last of s uch bi-.nnual accounts W4S concluded at the

beginnin6!, of 19401 in the early months of 1942 proceedings for such IIU e c co uut.
were begun by the stock-taliiug, but were never concluded for s'ollle reason 'Whi ch

is still obscure. But before 1940 the name of Maria .I.{.yril!lzis comes into the
casel deli very orders are ill her name (but not i Ilvari au ly), and Dimi stri Kyri a zi s
has an account in his boo~s which shows Maria Kyriazis as the owner of the OmdunDan shop.

This starts frOin 1938 as a regular practice, though there ill

in evidence a delivery order in the llame of Maria Kyriazis all early all 1936.

Dimitri Kyriazis and Maria Kyriazis say that what had happened was that
Dimitri j,(yriazil!l gave the shop and bueiness to Maria Kyriazis as a present I
they have 110 written agreement as to thie and are hazy, and even contradictory,
as to the date of tl,e @,ift, but they do agree that the effect of it Will! for

Dimitri .(yriazis to 'fal!l out alto&ether of the business relatiollship with the

  defendant and for his place to be ta~ell by Maria Kyriazis.  So this suit

for ~ sum of money alleged to be due from the defendant by virtue of this

relationship arising from the eout.r e ct, made between Dimitri Kyriazis lind the
defendant, but now said to be II changed one between the, de 1 elldallt and Mari a
l(yriazis was brought lJy Maria Myriazis alone.

The defendant .

In hie defence denied that his oriiinal eontractual
relatiouship with Dimitri Kyriazis had been changed to one with Maria K.yriazie, I

and claimed further by way of ~oulltercle.im that~ so rar from owin& 1800ey under
it, he waa owed m'o,.ey ullder it by Dil.1itri Kyriazi~~ Dot Maria. Kyriazi.. Iu
that. atate of the' pleadiugs' the cb vi pus thing to have done was to haTe made
Dim~trf'Kyriazia & party to the suit ao thnt the time tlhlen on goiog into the
accOUllt •• hould not lie was'ted if the court were tv decide that Maria Kyriazia

had no cause of &c.ion on the contract.Howeve~, althcugb there we~e

advocates ~n both 8id~s1 th~s was not Gone. ~The result of this is that

thia court is f'ae ed with t',yO points for decisiou. The-first ie whether
the learned Judge of t.h. [lig,h Court wae ri~ht iu fi •• da ng that Maris KyriAzis

had no caUSe of a~tion ~s uo~ being iq ~uy ~ontrac_ue.l relations with defendant~
'If.,
The second ie whether the court ehould thereupon have added Dimitri Kyriazis as

a plaiutiff (his eon seut , which is re,!uired by 10he law, ha vi ug been ga vsn},

On the first pcint~ there are two issues to be decided~The first is

on the claim by the defend611t that there was no &enuine a:l. ft by Dimitri Kyri azi a

to AIG.ria .i(yriazi ao

Mtl.ritL i.(yria~is ill~c t.ue ,,_fIai.rd 01 t h e ,:u61n~H,a w ••• ,;; a. ah.~, &a Dimitri i(yri"zis
d~d aot really give the shop t.Q Maria Ay~iazie but mer~ly p~etended to do so for
some reason of his CWll which it a3 augges~ed way be to save on busineee profit.s

  tax.The onus of proof 'of this issue i. Oil t.he def'endallt'1 and in my opinion

he hae faiied t.c dii8::Iu.:rga it~ for I .r~lIl:U.b unsatisfied that tile whole of thie
iJrin~ij).~ of the name of M"ria K.yri.zi~ in1.oJ the affair was bcgu.~ a.:.':' t,nat in
fact ;;.here was no i11"e.11,i03 z.t, all v.. I\ltu~e any s o r-, of gif't e.-t all to Maria Kyri azi s.

It. appel.i1"S to me .j,uite f-cs&ible th/t;¥ Dimitri Kyriazis should wieb

til have provided for ).laria ;(yri~£;i.1!I 'aft.er h~B death by elT.eul!";iu~ that sh e tool( the
Omdurme» business9 which i~ 1.h~ .expl!lna~~')n lil,lyen by th:!lIIo

The second critical l~8ua ~lll thie Hre~ point lie whether the defendant agreed
... J-~ccept Marie l.{yriazis iLl the p l aea of Dimitri l.{yria:l!iill9 so that 1i.ha latta,r
should l)ellse to have ,-any ;ri6ht~ l'J.uli dut r e s with ll"eepect to the defendant over thi 21 bueinaeso

It ;i 21 "1li •. ~eC1 by aU that the det'ena.an.;. e oukd not have had

Maria Kyrinis foiat'ad 0['. hire .in iha p.l ae e of Dimitri K:;rr.:Lflzia without his consent.
'rhie i", :::1ur~ for the rel.aVion,:> betwel!/I! D.'r,J:\tll'i KYII':iudl! and d~felldan •. Ilrieine,

out of thai!r contract ar,e of 4U/z:l a psr"onal n::tl.ure that the personality of

Dimitri Kyriazla was a Yit~l poilllt in l:o ~ Tbe defenda~t mad3 such a
contract with Di'llitr:l. Kyd 4lOi i!I~ b."t he would not hd"fe made it wi th many others,have mlldef' ~ch a
110 experi nee at l)ontrllct with Maria Kyriazis.

a hueb~d who eould help her if he Chose and was the very man
who~ the defendant had agreed to take with him into this
business; but the defendant would have had no legal right to
enpure that Dimitri Kyriazis did give his help~ and even Maria
Kyriazis had no right to insist on that~ So the defendant
would h!jl.ve had to rely on Dimitri Kyriazis giving_his help
freely eli his own accord~ without his help it is clear thllt
the whole_business must-have been _broken down_p for Maria
Kyria.zis could certainly not have carried it on by herself?
and the possibility of her-, getting help other than Dimitri
Kyriazis seems very remote_o as the business would have been
competing with that of Dimj.tri Kyriaziso The _onus of proof
on this issue is en Maria Kyriazis and., for the reason g;i ven
in this p~graph~ it is one not easily to be discharged.

We would require very clear proof' to satisfy us that the
defendant had. agreed to accept as his business associate
instead - of the very shrewd., experienced buaLneasman, Dimitri
Kyriazi$~ the ,completely inexperienced and unequipped woman,

   Maria Kyria,zis~  - _ j On this issue of w:':le-ther the defendant conaentied to

accept Maria Kyriazis in place of Dimitri Kyriazis the advocates
have advanced all con~iderations exhaustively ~ the many delivery
orders that are in the name of Maria Kyriazis₉ the few that ~e
in the name o-f Dimit:r.i Kyriazisl) and what seems o;f consi.derable
importan~'e to USI) the account of 1940 ( Exhibit/D~AQll':) ~ This

is so important beca~se it,is the submission of the final

account for the ye~s 1938-1940 to the defendantp and if we

are to-accept the contention of Maria Kyriazis that she had

btell ac:eepted by the defendant in the place of Dimitri Kyriazis
sinc$ 1~9~~' the tinal ~ccount should have been rendered by her

td 'J;ilr~ 4.~jI~:ndant~ ,Yeti 'it is all in the name of DimitrLKyriazis
&;S ~.'-a:t;~~~t between him and - the defendant ~ !n the face of

that acoou.nt_o' and taking all the .o shez- ciroumstances into
oonsideration~ .I remain unconvinced that the defendant di9-

accept M~~ Kyriazls in th~ plaae of Dimitri Kyriazls₉ and,
therefore Maria. -Kyriazis failEi on this Lssue , as the onus of
proof is on her. I think it quite possible that the defendarj.t
~i10wed the name of Maria Kyriazis as his business associate

in the place of Dimitri Kyriazis. On, that __:p0j_~nt this appeal
therefOre fails and must be dis~is6e~

There remains the second point taken by the plaintiff,
which is t~t the judge_p hav~~g found that Maria Kyriazis was
not the ~i~t pl~intiff. should have added Dimitri Kyriazis as
plaintiff in ex~:rcise of the powers given the court by the' Civil
Justice Ordinance' 1929 -'Order,7 - rule 8 (with ~is consent).

The wordil1g of this rule is - different from that .. of India a.n9,
England, i~ is far :from precise~ but it is clear, that our '
intention 1n not following the' wording of India and England: '
are cerU.1n1y not in I)rder to be less li·)eral the,n -they &;re            

J...n.d 'ill· bot..~ those c ount.t'ieo it :t..s ~e~jin ·that 'the .t.~as6..~.
which the learned Ju.dge of, the. Hieh Court· gav~.· for ad:l'ni:;Js~
ing the. ~pplioatiob. is inva,liq.. In the' Engli.Gll, 'caSl;~ cif .

Jruge:$. v~ PumP House' Hotel Co. :(No ~2).(1902) 2 K~J3~ '485.. .
4s1. :to~d Just'iee 'Cozenfi-Hardy :5aid,: twIt iB said that tl;(~
·1't.ll-e does n.t apply where it is shown that the plaintiff
;h~. nO :l.'i'Shi af act1o~, 'but, t~ere alL'e abundant '~utho~it'.ea
:t~ '1ih. ·boxits.~ .,t:teot~" Al'ld--Mulla.Ct!).da of aiv~1~p:roeadUl'

515 (11th od.i 1941) di'ties almost exactly the eame case as

. this one wllere anothe~ :p.la~ntiff is pl;'C):perly added~, And .

the praot:l.oe 0+, our <lour'bs is to :put i~ another plaintiff
when it is claimed by the defence that tne pla:lnt1ff is
the w:ronr; onej indeed it is commonly don~~' . In my opinioll
t:b.ere:fore the ap:r,:eal should be a.llowed on this ground and
the su:!.t aenb back :for continuation and a decis ion on the
merits as between Dimit~i KY':'ia.zif3 and the d.efenq.ant~

This court has mt been concerned with the merit:.::

cif tJ::tat dispute but; we have p~rfo~ce had to read th~ record

and I have seen enough ip.~ that way to be, .able to advise

 the parties to tcy to ne ach a sGttlement~I would s'L{S gest

that accounts be taken -betrweeri them up to 1942 en th0 barrl a

of Dimi tr:i. KYl'iazis being the owner of the bun:1.l1nr;:·) 0:: J;l',~
1934 contract te.l"'ms, and thor'eafter on the bas i s of i;~le
defendant being the Qiv.ner~

It is clear thB.t if the case goe s on in cbur(;.; it
will present the fa:mii:"c.at' ~itua·~ion of a court being e.skec1
to make a p.r~cise dee i.ai.on in a case wlle.:r'$. such a d~!cisiol].
has been ILI.ad~ impossibl.e by the slackness 0f the pa~-t:tes                                                                                            .

thero.sely~s,,,, Di.-rn:i.t!'i KyriaziB VI':.'.;; cb,iefly l.'GBp~:n8:i.bIG 1:'0):,

an account bei:ng tl').kcn in. ),942, h,l'~ tr.:.e d.ei'e:ldc..nt [j:~, .. mld.
have insisted on that, and the defenda-c:l:i, if ho is :r.'it.'ht
in his contention that his relatioru-i wi th D1.Id·G:t':t K;yria7Jls

altered x'adica11y in 1942" ohocld have insis l;od on ::l'ivJ.ns

that i~ wl';1.th1,(,~~

( HIGH COURT )