[1955] EACA 48

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Barclay Nihill (President), Sir Enoch Jenkins (Acting Vice-President) and BRIGGS, Justice of Appeal

# SHABIR DIN, Appellant (Original Plaintiff)

### RAM PARKASH ANAND, Respondent (Original Defendant)

### Civil Appeal No. 72 of 1952

(Appeal from the decision of H. M. Supreme Court of Kenya, Rudd, J.)

*Ex parte* judgment—Setting aside under Order IX, rule 20, of the Civil Procedure (Revised) Rules—Non-appearance of plaintiff through advocate's negligence-Whether "sufficient cause" for said rule-Decision in Ecksteen v. Kutosi-Civil Procedure (Revised) Rules, Order 1X, rules 19, 20 and 24.

By Order IX, rule 19, aforesaid: "Where the defendant appears and the plaintiff does not appear, when the suit is called on for hearing, the court shall make an order that the suit be dismissed, unless. ...".

By Order IX, rule 20, aforesaid: "(1) Where a suit is wholly or partly dismissed, under rule 19 the plaintiff shall be precluded from bringing a fresh suit in respect of same cause of action. But he may apply for an order to set the dismissal aside, and, if he satisfies the court that there was sufficient cause for non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms. . . ".

When, before the Supreme Court, the eighth case in the list was called on for hearing, neither the plaintiff nor his advocate was present. The defendant's advocate stated that the claim was not admitted and that he knew of no reason why the plaintiff did not appear. Thereupon the Judge dismissed the action with costs. Two days later, the plaintiff moved to set aside *ex parte* judgment under Order IX, rule 20 aforesaid, on the grounds that the advocate believed it was impossible that the case should come on for hearing as early as it did, that he had every intention of appearing and that the circumstances were so unexpected that reasonable counsel might well have been taken by surprise and been absent. The Judge, having decided that the reason for non-appearance was the negligence of counsel, believed that such reason could not, in law, be "sufficient cause" within the meaning of Order IX, rule 20, aforesaid, and dismissed the application with costs.

It was held by the Supreme Court in Ecksteen v. Kutosi, that mere oversight on the part of an advocate or clerk could not, of itself, be held to constitute "sufficient cause" to set aside a judgment under Order IX, rule 24 aforesaid.

Held (26-9-53).—(1) The mistake or misunderstanding of the plaintiff's legal advisers, even though negligent, may be accepted as a proper ground for granting relief under Order IX, "rule 20 aforesaid, the discretion of the court being perfectly free and the words "sufficient<br>cause" not being comparable or synonymous with "special grounds". Whether the<br>grounds for granting relief will be accepted, dep it being neither possible nor desirable to indicate in detail the manner in which the dscretion should be exercised.

(2) (Semble)—Ecksteen v. Kutosi was incorrectly decided in that oversight on the part of an advocate or clerk can be "sufficient cause" to set aside a judgment under Order IX, rule 24 of the aforesaid Rules.

Appeal allowed.

Cases referred to: H. K. Shah and another v. Osman Allu (1947) 14 E. A. C. A. 45; Mistri Ghulam Mahomed v. Khamisa Suleman (1908) 2 E. A. L. R. 92; Ecksteen v. Kutosi (1951) 24 (2) K. L. R. 90; re Helsby (1894) 1 Q. B. 742; Coles v. Ravenshear (1907) 1 K. B.<br>1; Baker v. Faber (1908) W. N. 9; Selwyn v. Baker (1924) W. N. 195; Kevorkian v.<br>Burney (1937) 4 A. E. 97; Gatti v. Shoosmith (1939) 3 A. (1948) 15 E. A. C. A. 1; Standard Goods Corporation Ltd. v. Harakchand Nathu & Co. (1950) 17 E. A. C. A. 99.

Kean for appellant.

#### Khanna for respondent.

[Editorial Note.—In Patrick Njeroge Ngumi v. Livingstore Wanji Muthuni, ante, page 43, the court gave its decision on the question of "sufficient cause" for the purpose of Order XXV, rule 2 $(2)$ of the aforesaid rules.

The foregoing extract from Order IX, rule 20, follows the official copy, but it would seem that the comma appearing after "dismissed" should be deleted and a comma placed after "rule 19" therein.]

BRIGGS, J. A.—On 26th May, 1952, in the Supreme Court of Kenya there were eight or more cases in the list for hearing before Rudd, J., and in the eighth of these Mr. Khanna was to appear for the defendant and Mr. Sirley for the plaintiff. The first seven cases were disposed of by adjournment or otherwise in a very short time, and when the eighth case was called on Mr. Sirley was not present, nor was the plaintiff present in person. Mr. Khanna stated that the claim was not admitted and that he knew of no reason why the plaintiff did not appear, and thereupon the learned Judge dismissed the action with costs. Two days later the plaintiff move to set aside the *ex parte* judgment on grounds set out in an affidavit of Mr. Sirley. The motion was heard by Rudd, J. on 10th June, 1952, and he dismissed it. From that order the plaintiff appeals.

The reasons for Mr. Sirley's non-appearance, as shown in his affidavit, were that he believed it to be impossible that the case would come on for hearing as early as it did. In particular there was a case standing sixth on the list which he knew would proceed to hearing, and in view of that he believed that this case would not be reached at all on 26th May. That other case, however, was adjourned for hearing on 27th May, and it is not known what happened to the remaining cases. The appellant's case was that Mr. Sirley made a bona fide mistake, that he had every intention of appearing, and that the circumstances were so unexpected that reasonable counsel might well have been taken by surprise and been absent.

I think that in the circumstances Mr. Khanna might well have suggested to the court a ten minutes' adjournment before asking for judgment, since it seems that he knew that Mr. Sirley was expected to appear, and he himself must have been surprised that the case came on so early. I think also that, if the court was aware that Mr. Sirley was expected to appear, it might of its own motion have considered adjournment for a short period to enable a message to be sent to him. It is to be observed that the system of weekly lists was at that time a novelty, having been introduced only in the previous month. It is easy to understand that mistakes of this kind might arise in such circumstances.

However that may be, it seems that Mr. Sirley, if he did not intend to be present himself, ought at least to have had a clerk or some other representative available to watch the state of the list. I think it must be conceded in favour of the respondent that Mr. Sirley's absence amounted to negligence in the conduct of his client's case.

It is not altogether easy to ascertain on what grounds Rudd, J., decided the matter. His record of his decision is as follows: -

"I regret that I cannot find in the affidavit any evidence that the plaintiff was prevented from appearing for sufficient cause on 26th May, 1952, and I dismiss the motion with costs.

I think the correct conclusion to be drawn from these words is that the learned Judge took the view, which I also take, that Mr. Sirley's absence was due to negligence, and that he then considered that that concluded the matter, in the sense that non-appearance of the plaintiff, if due to his counsel's negligence, could not be non-appearance for "sufficient cause" within the meaning of Order IX, rule 20. It appears from the note of the hearing that some discussion took place as regards Order IX, rule 24; this could not of course apply directly to the case and could only have been of importance by way of analogy. Counsel for the appellant, however, sought to persuade us that the learned Judge had incorrectly supposed that rule 24 was the rule governing this case, and that he had therefore exercised his discretion on a wrong principle. I am not satisfied that this was the case. In spite of his use of the words "prevented from appearing", I see no reason to suppose that the learned trial Judge thought that rule 24 applied. The further argument of counsel that rule 24, by reason of the words "prevented by sufficient cause", requires some higher standard of proof than rule 20, also seems to me to be without foundation. Both under rule 20 and under rule 24, it is necessary for the applicant to show why he did not appear, and to show that the reason was a sufficient one.

I think this appeal turns on the point that, in my view, the learned trial Judge, having decided that the reason for non-appearance was the negligence of counsel, believed that that reason could not in law be "sufficient cause" within the meaning of the rule. I think the learned Judge was wrong in this respect, and that in consequence of this error he was either precluded from exercising his discretion at all, or exercised it unjudicially and on a wrong principle. If the matter appeared to have been decided by the Judge in the normal exercise of his discretion and without any error of law, I should, of course, be unwilling to disturb his order. See H. K. Shah and another v. Osman Allu (1947) 14 E. A. C. A. 45 (P. C.). As it is, I think the matter is open for our decision. I would refer in passing to two local authorities. The first is *Mistri Ghulam Mahomed v. Khamisa* Suleman (1908) 2 E. A. L. R. 92. Counsel was absent when a case was called. The learned magistrate was of opinion that sufficient cause had not been shown on the facts and the High Court dismissed an appeal. I think, with respect, that the discretion on the facts of that case was correctly exercised. The second authority is the decision of Windham, J., in Ecksteen v. Kutosi (1951) 24 K. L. R. Pt. II, 91. According to the headnote, which I think correctly summarizes the judgment on this point, "mere oversight on the part of an advocate or clerk cannot of itself be held to constitute 'sufficient cause' to set aside a judgment under Order IX, rule 24". I think the learned Judge and the learned magistrate whom he upheld both took a wrong view of the law in this respect. I think such an oversight can be "sufficient cause". Whether it is so or not is a question depending on the facts of each case.

Indian textbooks were cited which appear to show that decisions have been made by the courts in India both for and against the party in such circumstances. In the absence of the relative reports little help can be obtained from these textbooks, or from the short citations of cases contained therein. I think that better guidance can be obtained from a study of the English authorities. Those authorities deal with numerous different circumstances. Many of them relate to extensions of time for doing a particular act, frequently in cases where time has already run out; some of them concern setting aside ex parte judgments; but they have the common feature that the court is faced with the problem whether a party shall, or shall not, be permanently deprived of the right of putting forward a bona fide claim or defence by reason of the fault of his professional adviser or the adviser's clerk. The interests of the party who has obtained, or is in a position to obtain, a permanent advantage by reason of such fault, and of the unfortunate and perfectly innocent party who has been deprived of a right through no fault of his own, are irreconcilable, and the courts have always found difficulty in deciding who is to suffer. Without going into the cases at length, it may be said in general that the English authorities prior to re Helsby (1894) 1 Q. B. 742, generally led to the conclusion that the fault of the professional adviser should not be visited on his client, and that the matter should be reopened on terms, so as to enable the point of substance to be dealt with. After the decision in re Helsby the tide flowed in the other direction and it was generally held that the client must suffer for his adviser's mistakes. This position is most clearly set out by the Court of Appeal in *Coles v. Ravenshear* (1907) 1 K. B. 1. It was not, however, until a much later date that the reasons for this change were clearly understood. In spite of the decision in Baker v. Faber (1908) W. N. 9, Coles v. Ravenshear was still generally believed to contain the whole law on the subject when Selwyn v. Baker (1924) W. N. 195, was decided, and it was not until the decisions in Kevorkian v. Burney (1937) 4 A. E. R. 97, and Gatti v. Shoosmith (1939) 3 A. E. R. 916, that the law was clearly understood. They explained that Re Helsby and the cases following it were decided on the words "special leave" or "special reasons", and that if there were no requirement of *special* grounds, the matter must be open and the court's discretion unfettered.

I am clearly of opinion that the words "sufficient cause" in Order 1X, rule 20, are in no way comparable or synonymous with "special grounds", and that reasons for non-appearance may be sufficient to enable a party to set aside an ex parte decree without being in any way special. I think, therefore, that the principles to be applied by the High Court here in deciding such a matter should be those laid down in Gatti v. Shoosmith, and I apply the words of Greene, M. R. (as he then was) at page $919:$ —

"On consideration of the whole matter, in my opinion under the rule as it now stands, the fact that the omission to appeal in due time was due to $\alpha$ mistake on the part of a legal adviser, may be a sufficient cause to justify the court in exercising its discretion. I say 'may be', because it is not to be thought that it will necessarily be exercised in every set of facts. Under the law as it was conceived to be before the amendment, such a mistake was considered to be in no circumstances a sufficient ground. What I venture to think is the proper rule which this court must follow is: that there is nothing in the nature of such a mistake to exclude it from being a proper ground for allowing the appeal to be effective though out of time; and whether the matter shall be so treated must depend upon the facts of each individual case. There may be facts in a case which would make it unjust to allow the appellant to succeed upon that argument.

The discretion of the court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised."

I consider that under Order IX, rule 20, the discretion of the court is perfectly free, and the only question is whether upon the facts of any particular case it should be exercised. In particular, mistake or misunderstanding of the appellant's legal advisers, even though negligent, may be accepted as a proper ground for granting relief, but whether it will be so accepted must depend on the facts of the particular case. It is neither possible nor desirable to indicate in detail the manner in which the discretion should be exercised.

I think it desirable to refer shortly to the decision of this Court in Civil Appeal No. 16 of 1953, Patrick Njoroge Ngumi v. Livingstone Wanjii Muthui, ante page 43 where the court dealt with a somewhat similar matter only a few days ago. That was an application under Order XXV, rule 2 (2), to reinstate an action dismissed for failure to furnish security within time. Where an action has been so dismissed the plaintiff has the right in law to begin other proceedings on the same cause of action. In the circumstances of this case, however, he would have no such right. This must clearly be a very important factor in deciding cases under these two rules. In principle it is undesirable that a claim or defence, which might succeed on merits, should not be considered on its merits because of a merely procedural defect. If, however, the merits can be dealt with in later proceedings the strength of this argument is greatly diminished. The mischief of the case is the permanent destruction of a claim or ground of defence with no opportunity to put it forward at a later time. To this extent the decision in Civil Appeal 16 of 1953 was affected by different principles from those applicable to this appeal. In this case I think that it was competent for the learned Judge to find that the non-appearance of the plaintiff had been due to sufficient cause, and I think that he was under a misapprehension in considering that in law he could not so find. His discretion, therefore, was not judicially exercised and we are at liberty to take a different view from that which he took. I am satisfied that in the circumstances of this case sufficient cause was shown and that the plaintiff ought in justice to be granted relief.

I would therefore allow this appeal, set aside the Order of Rudd, J., dismissing the motion, and order that the Order dismissing the suit be set aside upon terms that the plaintiff do pay to the defendant all costs occasioned by or thrown away in consequence of his non-appearance on 26th May, 1952, other than the costs of this appeal, which should be paid by the respondent to the appellant. The case should be set down for hearing on such day as the Registrar of the Supreme Court may direct.

SIR BARCLAY NIHILL (President).—I have read the judgment delivered by the learned Justice of Appeal and find myself in entire agreement. This appeal will be allowed and an order made in the terms he has proposed.

SIR ENOCH JENKINS (Acting Vice-President).—I concur and have nothing to add.