[1938] EACA 181

# ORIGINAL CIVIL

### Before THACKER J.

# BRITISH EAST AFRICA CORPORATION (1939) LIMITED, Plaintiffs

#### $\pmb{\nu}.$

# SHAH GOVINDJI LADHA, Defendant

### Civil Case No. 170 of 1939

Practice—Civil Procedure—Motion for judgment—Affidavits—Civil Procedure Rules Order XXXIII-Whether plaintiff can-file subsequent affidavit to cure defect in previous one-Triable issue-Unconditional leave to defend.

Plaintiff company applied for summary judgment under Order XXXIII by motion based on the affidavit of its agent which failed to disclose that the facts therein stated were true to the deponent's knowledge and that the deponent was authorized to make the affidavit. On these points being taken by the defendant in his affidavit the plaintiffs filed a further affidavit which was in accordance with the form prescribed for affidavits grounding such motions. The defendant's affidavit in reply raised triable issues as to his liability.

*Held* $(10-11-39)$ .—(1) That the Court was entitled to consider both the affidavits filed by the plaintiff;

(2) That where triable issues as to the defendant's liability are raised on the affidavits the Court should grant leave to defend without attempting to decide the bona fides of the allegations contained in the defendant's affidavit and that the summary powers under Order XXXIII are to be exercised with the greatest care.

Newton for the Plaintiffs.

Dave for the Defendant.

RULING.—This is a motion under Order XXXIII for judgment against the defendant in the sum of Sh. $4,080/90$ . An affidavit in support upon^1/2 which the motion was founded was made by the manager of the plaintiff company and objection has been taken by Mr. Dave for the defendant that this affidavit is not sufficient and does not comply with the Form 4A referred to in Order XXXIII, Rule 2. A supplementary affidavit by the same deponent was made a week later which purports to remedy the insufficient affidavit of the 31st October including, as it does, a fresh paragraph that the<br>facts deposed to in the affidavit are within the deponent's own knowledge and that he is duly authorized by the plaintiffs to make this affidavit.

It is clear that the first affidavit is not sufficient and Mr. Dave for the defendant submits that the error cannot be cured by the filing of a supplementary affidavit. Mr. Dave has brought no authority exactly on this nor has Mr. Newton for the plaintiffs, the latter telling me that it has been the practice in this Court to file a supplementary affidavit if the first is not sufficient, and that there has been no objection hitherto to this practice.

I am referred to the case of Chirgwin v. Russell and Another (1910) 27 T. L. R. 21, in which case it was held that where an affidavit in support of a summons under Order 14 is sworn by a person other than the plaintiff he should state his means of knowledge and also the fact that he is authorized to make the affidavit. The Order relevant to the English Order 14 is the Kenya Order 33. This case, however, does not decide the point that I have to decide, namely, whether the supplementary affidavit filed in this case can be looked at by the Court and whether it cures the error in the first affidavit. Nor does the case of Lagos v. Grunwaldt (1910) 1 K. B. 41 deal with the point for decision. The affidavit in that case was irregular and it was held the Court had no jurisdiction to make an order under Order 14 but in that case no attempt had been made to cure the irregularity by a further affidavit.

The question is not one without some difficulty. On page 172 of the Annual Practice, 1938 Edition, it is said the affidavit in support of a summons under Order 14 must be produced before the summons is issued, and that statement lends some colour to the argument that a further affidavit filed after the summons is issued might be ineffective and useless, but I do not think that that statement means anything more than that the motion must be supported by an affidavit before the summons is issued and is not to be taken as laying it down as a rule that no further affidavit may be filed. I would also draw attention to Rule 14 of Order 38 of the Rules of the Supreme Court in England which is as follows: $-$

"The Court or a Judge may receive any affidavit sworn for the purpose of being used in any cause or matter, notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memorandum to be made on the document that it has been so received."

And the further note under the heading "Or any other irregularity": —

"An affidavit taken off the file to be corrected and re-sworn may be allowed to be re-filed without further fee."

Now it is not disputed that if the Court can look at the supplementary affidavit and if the supplementary affidavit cures the defect in the original affidavit there is nothing in the defendant's objection. I do not think that it could be maintained that this Court has not the power to order the deponent of the affidavits to give oral testimony on oath in amplification of or in support of either or both of his affidavits, and if this reasoning is correct it would seem logical and fair that the Court can regard the supplementary affidavit. I am strengthened in this view by the case of Symon and Co. v. Palmer's Stores (1903) Limited, (1912) 1 K. B. D., 259. This case was cited by the defendant's advocate and there is a passage in the report which I think is very material and which was not quoted by either party. On page 260 I read as follows: $-$

"Upon the case coming before the Master, he adjourned. it for a further affidavit by the plaintiff's manager as to his means of knowledge".

I cannot find in the report any criticism or objection to this proceeding on the part of the Master and it would therefore seem clear that the Master before whom the summons under Order 14 came was empowered to call for a further affidavit by the plaintiff's manager as to his means of knowledge. That would of course be after the original summons was taken out. I think this is manifestly logical and fair. If the Court requires further evidence it surely has the power to call for it. That is an inherent power in the Court and it would be an alarming proposition if the Court could not do this and if it had to decide solely on the original affidavit filed with the summons.

I therefore rule that the Court can regard the supplementary affidavit filed by the manager of the plaintiff company and that this supplementary affidavit cures the defect in the original affidavit. That being my ruling, I now have to consider whether the plaintiff is entitled to judgment under Order 33 or whether the defendant is entitled to unconditional leave to defend or conditional leave to defend. The defence outlines a defence, namely, that an agreement exists between the plaintiffs and the defendant whereby the amount owing to the plaintiffs by the defendant was arranged to be paid by instalments. There may be nothing in this defence. There may have been no such agreement. I am assured by Mr. Newton for the<br>plaintiffs that no such agreement was made. That, however, is an issue which has to be tried at the trial. I have no jurisdiction to decide that upon this motion nor do I express any opinion of course as to whether such a defence is likely to succeed.

The principles which should guide the Court in considering an application under Order 33 are well known and it is sufficient to cite two cases, the first being Jacobs v. Booth's Distillery Co., 85 L. T. R. 262, in which Lord James of Hereford stated as follows: -

"The view which I think ought to be taken of Order XIV is that the tribunal to which the application is made should simply determine: 'Is there a triable issue to go before a jury or a court?' It is not for that tribunal to enter into the merits of the case at all. It ought to make the order only when it can say to the person who opposes the order: 'You have no defence. You could not by general demurrer, if it were a point of law, raise a defence here. We think it impossible for you to go before any tribunal to determine the question of fact.'... On which side the chances of success are it is not for this House to determine; but thinking, as I do, that there is a fair issue to be tried by a competent tribunal, it seems to me to be perfectly clear that the order of the Court of Appeal ought to be reversed."

The second case is Sheppards and Co. v. Wilkinson and Jarvis, 6 T. L. R. 13. In that case the Master of the Rolls said:

"The rule which had always been acted upon by this Court in considering cases under Order XIV was that the summary jurisdiction conferred by that order must be used with great care. A defendant ought not to be shut out from defending unless it was very clear indeed that he had no case in the action under discussion. There might be either a defence to the claim which was plausible, or there might be a counter-claim pure and simple. To shut out such a counter-claim if there was any substance in it would be an autocratic and violent use of Order XIV. The Court had no power to try such a counter-claim on such an application, but if they thought it so far plausible that it was not unreasonably possible for it to succeed if brought to trial, it ought not to be excluded... If it was clear that the claim must succeed, and there was really no defence to it, and the plaintiff would only be put to expense in proving his claim, then there ought to be judgment on the claim, but the matter must be so dealt with that defendants who had a plausible counterclaim must not be injured. .."

"Lord Justice Lopes said that he had often said that the summary powers given under Order XIV ought to be exercised with the greatest care. It must be made reasonably clear that the defendant had no case before he was put upon terms to defend or judgment was signed against him. If he had a case, either by way of defence or counter-claim, he ought to be allowed to raise it."

I cannot upon the pleadings and upon the affidavits say that there is no possibility of the defendant succeeding in the defence which he has pleaded and I am therefore unable to give leave to sign judgment at this stage. Mr. Newton has asked, however, that the defendant be ordered to furnish security. Having regard to the remarks of Lord Justice Lopes supra it does not appear that I ought to accede to this request. What the Court can, however, do is to order that the trial of this action be expedited and this course I intend to take. It can put no burden upon either side to have this issue tried quickly. I therefore shall give instructions to the Registrar that this case be put down for trial on or before the 20th November, 1939.

Defence to be filed within seven days.

Costs to be costs in cause.