[1952] EACA 29

### COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and SIR HECTOR HEARNE, C. J. (Kenya)

### C. M. PATEL trading as DULLABHAI AND CHHOTABHAI, Appellant (Original Defendant No. 2)

ν.

# THE UNIVERSAL TIMBER CO. LTD., Respondent (Original Defendant No. 1)

## Civil Appeal No. 36 of 1951

(Appeal from the decision of H. M. Supreme Court of Kenya at Nairobi, B. W. L. Allin, Deputy Registrar)

Practice—Civil Procedure—Order 1, rule 14—Third Party Notice—Order 1, rule 21—Defendant claiming against co-defendant.

The appellant was second defendant in an action by the plaintiff on a promissory note made by the first defendant and endorsed by the second defendant. Judgment was entered against first defendant and the judgment debt satisfied. The first defendant filed a notice of indemnity presumably under Order 1, rule 21, and the second defendant entered appearance to it. The Registry endorsed the duplicate memo with a notice requiring the second defendant to file his defence to the notice of indemnity within 15 days. No defence being filed within the prescribed time a Deputy Registrar on receipt of a letter of request for judgment from first defendant's advocate, entered judgment in default of filing defence.

Held (12-3-52).—(1) The Deputy Registrar had no jurisdiction to enter judgment on first defendant's application and by doing so had disregarded the provisions of Order 1, rule 18.

(2) A defendant cannot get judgment against his co-defendant on a notice of indemnity without first applying to the Court for directions.

(3) The fact that the Deputy Registrar's order was a nullity does not prevent an appeal therefrom being filed.

Cases referred to: Tritton v. Bankart, (1887) L. T. R. 306, Chandubhai H. Patel v. Taylor, X E. A. C. A. 1.

Nowrojee for appellant

D. N. Khanna for respondent.

JUDGMENT (delivered by SIR BARCLAY NIHILL (President)).—This is an appeal against judgment entered against the appellant, who was the second defendant in the original action, on an order signed by the Deputy Registrar of the Supreme Court of Kenya and dated 11th May, 1951. The events which led up to the making of this order are as follows.

The appellant was a joint defendant with another known as the Universal Timber Co., Ltd., to an action brought against them by a firm known as R. Jivandas & Co. The action was in respect of a promissory note for Sh. 3,000 made by the Universal Timber Co., Ltd., the first defendant, and endorsed by the appellant. On an application for summary judgment, judgment was entered for the plaintiffs on 24th January, 1951. The judgment debt was subsequently satisfied by the first defendant who had previously filed a notice of indemnity on the second defendant, the present appellant. It can be assumed that this notice was drawn up in pursuance of Order 1, rule 21, of the Kenya Supreme Court Civil Procedure (Revised) Rules, 1948, although there is nothing which indicates this on the notice itself. Leave was granted to serve this notice of indemnity by an order of a Judge of the Supreme Court on 11th January, 1951, and subsequently, on 12th April, 1951, the advocates for the second defendant entered an appearance to the notice, and the Registry of the Supreme Court thereupon dealt with the matter in accordance with the provisions of Order 9, rule 1, that is to say, the duplicate memorandum was endorsed with a notice requiring the second defendant to file his defence to the notice of indemnity within 15 days. No such defence was filed within the prescribed time and on 30th April, 1951, the Registry received a letter from the first defendant's advocates requesting that judgment be entered. On 11th May, 1951, the matter came before Mr. Allin, a Deputy Registrar of the Supreme Court, who made the following order : —

### "11.5.51.

On reading letter dated 28th April, 1951, from the advocate for defendant No. 1, judgment is entered against defendant No. 2, in default of filing defence in favour of defendant No. 1 for Sh. 3,000 claimed in the notice of indemnity and for Sh. 743/67 the taxed costs also for costs of the indemnity proceedings.

> B. ALLIN. Deputy Registrar."

It is conceded by both parties to this appeal that it can be assumed that the Deputy Registrar in entering judgment must have purported to act under Order 48, rule 2 (1). He should of course have said so, and so should the advocate who made his application in writing. It adds considerably to the difficulties of an Appeal Court in matters of this sort when action is taken by advocates or orders are made by a Registrar or Court without reference to the Order and rule on which the action or order is purported to be taken or made.

It is submitted on behalf of the appellant in this appeal that the Deputy Registrar had no jurisdiction to enter judgment on the first defendant's application and that in doing so he disregarded entirely the provisions of Order 1, rule 18. This rule reads as follows: $-$

"18. If a third party enters an appearance pursuant to the third-party notice, the defendant giving the notice may apply to the Court by summons in chambers for directions, and the Court upon hearing of such application, may if satisfied that there is a proper question to be tried as to the liability of the third party to make the contribution or indemnity claimed, in whole or in part order the question of such liability, as between the third party and the defendant giving the notice, to be tried in such manner, at or after the trial of the suit, as the Court may direct; and, if not so satisfied, may order such judgment as the nature of the case may require to be entered in favour of the defendant giving the notice against the third party."

The application of this rule and the other rules in the Order to a codefendant to a suit is clearly secured by rule 21 of the same Order which is as follows:-

"21. Where a defendant claims to be entitled to contribution or indemnity against any other defendant in the suit, a notice may be issued and the same procedure adopted for the determination of such questions between the defendants, as would be issued and taken against such other defendant, if such last-mentioned defendant were a third party; but nothing herein contained shall prejudice the plaintiff against any defendant in the suit."

Prima facie, therefore, it would seem that the Deputy Registrar when making his order left out of account the procedure provided by Order 1. It is a pity that he did not say what was in his mind but as has been said it seems safe to assume that he regarded the matter before him as an ordinary suit between a plaintiff and a defendant and acted accordingly under Order 48, rule 1, because there was evidence before him that the defendant, i.e. the present appellant, had failed to comply with the rubber stamp notice endorsed on the duplicate memorandum of appearance made under Order 9, rule 1.

Order 1, rules 14, 15, 16, 17, 18, 20, 21 are to all intents and purposes identical with Order 16, rules 48, 49, 50, 51, 52, 54, 54A and 55 of the Rules of the Supreme Court 1883 as they stood up to 1929, and Tritton v. Bankart (1887) L. T. R. 306, is therefore clear authority for Mr. Nowrojee's submission that a defendant cannot get judgment against his co-defendant on a notice of indemnity without first applying to the Court for directions.

Mr. Khanna has sought to get round this by submitting that the general scheme of the Kenya Rules is different and that the procedure set out in Order 9, rule 1, is applicable to appearance to any summons. My answer to that is that I am by no means convinced on the documents before me that this notice of indemnity issued to the appellant after leave given by a Judge was a summons at all. It was not signed by a Judge or an appointed officer of the Court or sealed with the seal of the Court. (See Order 5.) Order 1, rule 14, I think also implies that a notice of indemnity on a third party is not a summons within the meaning of Order 5 as otherwise the words "A copy of such notice shall be filed and shall be served on such person according to the rules relating to the service of a summons" would be surplusage. Even if I am wrong here I fail to see how the requirements of Order 9 which is headed "Appearance of Parties and Consequence of Non-Appearance" can be applied without reference to or modification by the rules of Court directly relating to third party procedure which procedure on account of Order 1, rule 21, is applicable also to cases where a defendant claims against a co-defendant.

If I am right in this then the provisions of Order 1, rule 18, must surely mean what they say and in my opinion the Supreme Court of Kenya should follow the practice approved in *Tritton v. Bankart*. As was noted by Kekewich, J., it is true that the application for directions is at the discretion of the defendant seeking indemnification but if he wants the issue between him and his codefendant tried and determined he must first seek the direction of the Court. In my opinion therefore we arrive at the following situation. The clerk or whoever it was in the Registry of the Supreme Court had no business to affix the rubber stamp on the appellant's memorandum of Appearance requiring him to file a defence within 15 days; the advocates for the respondent had no business to apply to the Registrar for judgment, and the Deputy Registrar had no business to make the order that he did.

This does not conclude the matter however because it is argued that on the above hypothesis the Deputy Registrar's order was a nullity being in excess of jurisdiction and that therefore there is no order or judgment against which the appellant can come before this Court. Precisely the same point was taken before this Court in Chandubhai H. Patel v. Taylor, X E. A. C. A. 1, and it is reprehensible that the learned advocate for the respondent, who himself unsuccessfully submitted the same argument in the above case, should have seriously argued the same point before us during the hearing of this appeal, without at least calling our attention to the earlier decision and attempting to distinguish it. We are indebted to Mr. Nowrojee for being fully prepared to meet the point which he did by citing the case above quoted.

I have already criticized the form of the Deputy Registrar's order but there can be no doubt at all that on entering a final judgment under Order 48, rule 21 (which was Order 46 at the date of the decision in *Patel v. Taylor*), the Deputy Registrar was purporting to exercise a judicial function delegated to him by Order 48, a delegation enacted by the Rules Committee pursuant to the powers conferred on the Committee by section 81 (2) (i) of the Civil Procedure Ordinance. Accordingly in my opinion this Court is bound by the decision in Patel v. Taylor and speaking for myself I fully concur with the following passage from the judgment of Wilson. Acting C. J.:

"I may add that I can see no substance whatever in the somewhat specious argument that if the decree was made by the District Registrar without jurisdiction appeal does not lie to this Court under section 66 (Civil Procedure Ordinance) because the decree is invalid and therefore no decree at all. It purports to be a decree, is made by an officer of the Court who is entitled in certain circumstances to pass decrees, and is valid unless and until it is set aside by an appellate Court. Counsel also tried to make the point that it is only decrees passed by a Judge of the Supreme Court (as opposed to those made by Registrars under the special powers conferred on them) which are appealable to this Court. There is equally no substance in this; no such limitation is contained in section 66 of the Ordinance."

Equally in this case, the order of the Deputy Registrar created a "decree" within the meaning of section 66 of the Civil Procedure Ordinance read with the definition of the term "decree" set out in section 2 of the Ordinance, and this "decree" or "judgment" remains valid and effective for all purposes until it is set aside by this Court on appeal. The appellant was therefore right in bringing his appeal to this Court for he could have taken it nowhere else.

One further word; since the argument in Court my attention has been called to an order made by Modera, J. in the Supreme Court of Kenya in Civil Case 600 of 1949. Whilst nothing in this order is binding on us it is of course entitled to respect. From my perusal of the record in this case it appears that Modera J. overruled a submission that notice on a third party should act as a stay of the plaintiff's claim pending directions. The learned Judge could find no authority for the proposition. Certainly it is not contained in Order 1, rule 18, which is confined to the question of liability as between the third party and a defendant giving the notice. Without deciding therefore whether this order was right or wrong there is nothing in its terms in my opinion which assists the respondent to the present appeal.

In my opinion this appeal should be allowed with costs; the judgment entered against the appellant set aside together with the orders made by the Registrar in respect of costs. It will now be open to the respondent to proceed under Order 1, rule $18$ ; he is so advised.

SIR NEWNHAM WORLEY (Vice-President).—I fully agree and have nothing to add.

SIR HECTOR HEARNE (Chief Justice).-I also agree and have nothing to add.