[1952] EACA 64

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and BOURKE, J. (Kenva)

## ISHER SINGH trading as "ELBURGON FLOUR MILLS", Appellant (Original Defendant)

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# NATHABHAI KHIMJIBHAI PATEL, Respondent (Original Plaintiff) Civil Appeals Nos. 54 and 57 of 1951

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

Practice—Plaintiff's application for leave to amend plaint—Application granted— Leave to appeal granted—Defendant's subsequent application to strike out amendments—Refusal, leave to appeal granted.

The plaintiff-respondent alleged employment with defendant from 1st January, 1937 to 31st January, 1949, and asked for an account between the parties and judgments for any sum found due. The defence alleged no cause of action. Fourteen months after filing the plaint, the plaintiff applied for leave to amend by adding in the alternative a claim for a definite sum. The defendant submitted that the proposed amendment would affect a plea of limitation. The Court ordered that the proposed amendment should set forth the precise length of time over which the debt was alleged to have accrued due. The application came before another Judge and the amendment took a fresh form which saved the claim from being barred by limitation. The application to amend was allowed and leave to appeal was granted.

The defendant-appellant instead of appealing against the order applied by chamber summons for paragraphs of the plaint to be struck out or amended as necessary. This application was dismissed and leave to appeal granted. On hearing the appeals: $-$

Held $(18-4-52)$ —(1) Once the amendments were allowed as proper additions to the plaint the defendant's remedy was to appeal and not to apply to the same Court to strike out in effect a previous order of the Court.

(2) There is no fatal obstacle to pleading facts in a plaint which attempt to take the claim or part of it out of the Limitation Ordinance.

(3) At the time of the amendment the defendant was not vested with any more rights in regard to limitation that existed at the date of the plaints issue. There was no wrong exercise of discretion in allowing the amendments.

Appeal dismissed.

Cases referred to: Hollis v. Palmer, 2 Bing. N. C. 713, Dismore v. Milton, (1938) 3 A. E. R. 762, Weldon v. Neale, (1887) 19 Q. B. D. 394.

### Nazareth for appellant.

#### Chanan Singh for respondent.

JUDGMENT (delivered by BOURKE, J. (Kenya)).-The respondent filed a plaint by which he alleged (paragraph 3) that he was employed by the appellant "as Assistant Manager from 1st January, 1937, at an agreed salary plus board and lodging, and worked with him till 31st January, 1949. His salary at the date of termination of his services was Sh. 500 p.m. plus board and lodgings". Further allegations were that the respondent was also granted bonuses by the appellant from time to time (paragraph 4); that he has drawn from the appellant from time to time certain sums on account of his salary (paragraph 5); that he is

unaware of the actual amount due to him from the appellant (paragraph 6); that he has demanded from the appellant a detailed account but the latter refuses or neglects to render it (paragraph 7). Judgment was prayed for an account between the parties and for such amount as may be found due to the respondent.

A defence was lodged in which it was alleged (paragraph 2) that the plaint showed no cause of action and no right to claim on account, nor disclosed any obligation to render an account or that the appellant is an accounting party. Without prejudice to that defence it was admitted that the respondent was employed as an assistant at an agreed salary which at the time of the termination of the employment was Sh. 500 per month, but denied that any sum whatsoever was owing. It is not necessary to refer to the other specific denials or averments.

About 14 months after the time that the plaint was filed, that is, in May, 1951, the respondent moved for leave to amend the plaint. By the affidavit in support the respondent referred to the defence raised that there was no obligation upon the appellant, as an accounting party, to render any account. He went on to depose that through mistake or inadvertence an alternative claim for a definite sum was not included in the plaint and that unless an averment of such claim was included in his pleading, he was advised and believed that there was a likelihood of the suit being dismissed as disclosing no cause of action. The application came in the first place before Connell, J. It was sought to substitute the following paragraph for paragraph $6:$ —.

"6. The defendant owes the plaintiff the sum of Sh. 24,249/80 but the plaintiff received from the defendant during the month of January, 1949, certain sums of money of the exact amount of which he is unaware. The plaintiff is prepared to accept a set off for these sums";

and to insert a paragraph as follows:—

"7A. Alternatively the plaintiff claims from the defendant the sum of Sh. 24,249/80 being the unpaid balance of salary and bonus due to him from the defendant for work done for the defendant as mentioned in para-<br>graph 3 of the plaint. This amount the plaintiff has demanded from the defendant but the defendant has refused to pay."

Amendment of the prayer for relief was asked in order to obtain an "account between the plaintiff and defendant and for judgment for such amount as may be found due to the plaintiff from the defendant", or, alternatively, judgment for Sh. $24,249/80$ .

It was submitted for the appellant that the proper course was to file a fresh suit, as 14 months had elapsed since the bringing of the action and the amendment would tend to affect a plea of limitation. It was stated in reply by Mr. Chanan Singh, for the present respondent, that no question of limitation arose; it was not sought to recover more than was due in respect of a period of six years. The learned Judge was not prepared to consider the application until it was set forth in the proposed amendment "for what period exactly the claim refers", by which I take to be meant the precise length of time over which the debt was alleged to have accrued due in respect of the employment. An adjournment was granted to enable this to be done.

The application then came before Windham, J. The amendments sought differed from those mentioned above by the substitution of a new paragraph $5$ in the plaint as follows: $-$

"5. The plaintiff has from time to time drawn certain sums of money and purchased goods from the defendant";

and by the insertion as paragraph 7_A of the following paragraph in place of that put forward in the original application:

"7A. Commencing from the date of the plaintiff's employment, an account was kept in books now in the possession of the defendant to which salary and bonus as earned were credited and the sums drawn in cash and the goods purchased by the plaintiff from the defendant were debited from time to time. A balance of this account was struck on 14th January, 1947. when the items on both the credit and the debit sides up to the end of 1945 were agreed between the plaintiff and the defendant and the defendant, in acknowledgment of the balance due to the plaintiff, signed the final accounts for the year 1945 which included the plaintiff among the creditors of the defendant. The said account was then continued to the date of the termination of the plaintiff's employment and was then closed. This account shows a final balance in favour of the plaintiff of Sh. 24.249/80 (less drawings during January, 1949) which the plaintiff has demanded but which the defendant refuses to pay."

According to the notes of the learned Judge, no specific objection was taken to any of the amendments except this paragraph 7A. It was argued by Mr. Nazareth, for the appellant, that despite the order of Connell, J., it had not been made clear in respect of what period salary was being claimed; the paragraph 7A was confusing and impossible to plead to; it might be taken as a claim on an account stated. For the present respondent it was stated that it had been made clear that there was a running account and that paragraph 7A saved the claim from being barred by limitation.

The application to amend was allowed, the learned Judge pointing out that it was open to the appellant to apply for particulars for furnishing of dates or to clarify anything in the plaint which was still considered to be obscure. On application leave to appeal from this order was granted. The appellant then took a remarkable course. Instead of proceeding to appeal in pursuance of the leave granted on 6th June, 1951, he applied by a chamber summons dated 20th June under Order 6, rule 17, that paragraphs 3 to 7_A of the plaint as amended be struck out or amended as being unnecessary and as tending to prejudice, embarrass or delay the fair trial of the action, and as being irregular in failing to comply with Order 6, rule 1 and Order 7, rules 1 (e) and 7. On the hearing, which was before Campbell, J., the application was confined to paragraphs 3, 6, 7 and 7A. As to paragraphs 6 and 7A the learned Judge was asked to hold that they should not appear in the plaint when, as was brought to his notice, the discretion had already been exercised by Windham, J., to permit the substitution and insertion respectively as proper amendments to the plaint. It is surprising that the learned Judge consented to entertain the application in respect of these two paragraphs, which should never in the circumstances have been brought before him. The application was dismissed and leave to appeal was granted.

The appellant now appeals from both these orders and the appeals have been heard together. If I am of opinion that there is no ground for interference with the order of Windham, J., permitting the inclusion of paragraphs 6 and 7A by way of amendment, I do not propose, for obvious reasons, to proceed to examine the grounds upon which Campbell, J., came to exercise the discretion in declining to strike them out or the grounds of appeal set out in the memorandum of appeal from the order of Campbell, J., questioning his reasons for refusing to interfere with these two paragraphs. As should have been apparent to learned Counsel for the appellant, once the amendment had been allowed as proper additions to the plaint, his remedy in test of the order of Windham, J., was to

pursue the appeal for which leave had been granted and not to apply again to the same Court thus inviting another Judge to hold, in effect, that a previous order of the Court was wrong and to undo it by striking out the amendments.

Now the respondent is claiming an account and in the alternative a specified sum of money. In an action for the rendering of an account it is of course a good defence if it be shown that the defendant is not an accounting party. But it rests with the plaintiff in the first instance to allege in his pleading facts which show that the defendant is prima facie liable to account to the plaintiff for certain moneys. That is what, as it seems to me, the learned Judge must have concluded that the respondent has done through the plaint as amended, and I am not prepared to say that the allegations are wholly insufficient as a matter of pleading; whether the respondent will be successful in the event is quite another matter. It has been complained that wrapped up in paragraph 7_A there is perhaps a further cause of action based upon an account stated or settled. In the absence of particulars in the paragraph I see no valid reason for thinking that there is a claim on an account stated. In my opinion what the respondent has attempted to do through the second sentence in the paragraph was explained by his advocate before Windham, J., when he said that paragraph 7A saved the claim from being barred by limitation; facts have been alleged which the respondent hopes will take that part of his claim arising more than six years before the commencement of the action out of the Limitation Ordinance. It would have been more in accordance with the normal practice in pleading if the acknowledgment had been alleged in reply upon limitation being specifically raised in the defence; but, as I understand it, there is no fatal obstacle to the pleading of such facts in a plaint (see Bullen & Leake, 10th edition, page 651, note 8). In an action of debt it is "premature" for the plaintiff to allege in his statement of claim facts which will, he hopes, take the case out of the Statute of Limitations. If he does, "the defendant need not answer" them, *Hollis v. Palmer*, 2 Bing. N. C. 713 at 718 (and see Dismore v. Milton, (1938) 3 All E. R., 762).

Then it is argued that the amendments are not admissible as tending to prejudice the rights of the appellant in relying upon the statutory limitation and reliance is placed upon Weldon v. Neale, (1887) 19 Q. B. D. 394. In that case the original action was simply for slander, and the plaintiff was non-suited. Later she sought to amend her claim by setting up, in addition to the claim for slander, fresh claims in respect of assault, false imprisonment and other causes of action, which at the time of such amendment were barred by limitation though not barred at the date of the writ. It was held that the amendments would permit the plaintiff to take advantage of her former writ to defeat the statute and take away an existing right from the defendant. The amendments were therefore disallowed.

In the instant case it is not a matter of setting up a fresh claim in respect of a cause of action which, since the lodging of the plaint, has become statutebarred. The appellant is complaining that because 14 months elapsed between the issue of the plaint and the application for amendment he should not be "deprived" of such length of time for the purpose of the running of the statutory period. But, in the first place, there has never been any attempt to contradict the statement in the respondent's affidavit that the delay occurred through endeavours to negotiate an agreement for reference to arbitration and secondly, what has been done by these amendments is to elaborate and allege further facts in support of the cause of action originally sued upon. Whether or not it was a good cause of action upon the pleading as it stood is a consideration that does not seem to me to arise for present purposes; that question was brought into issue by the defence filed. It is true that in the alternative a specific sum of money has now

been claimed as being the arrears of salary, etc. alleged to be due; but I fail to see that the appellant is entitled to say in the circumstances that at the time of the application for amendment he was vested with any more or greater rights in regard to limitation than existed at the date of issue of the plaint; accordingly, in my opinion, the amendments did not prejudice his rights as existing at the date they were admitted.

As to the amended paragraph 6. I can discern no reason for concluding that there was a wrong exercise of the discretion in permitting that amendment. The plaint as amended is, to say the least of it, by no means a model of pleading; in that it is far from being unique. But I think that it is sufficiently plain from paragraphs 3 and 7_A that the reespondent is making the case that a sum of money has accrued due to him as from the date of commencement of his employment. namely, the 1st January, 1937.

Turning to paragraphs 3 and 7, which were questioned upon the application before Campbell, J., I do not consider that it is enough to say, as was said by the learned Judge, that if the paragraphs are open to the objections taken the respondent will pay the penalty when the action comes to trial. But I think that I have already said enough to indicate my reasons for holding that there is no sufficient ground for interfering with the order dismissing the application to strike out or amend these paragraphs. Although, as I have pointed out, it was stated on behalf of the respondent before Connell. J., that it was not sought to recover more than may be due in respect of a period of six years, it is, in my view, adequately clear from the matter contained in the plaint as amended, that he seeks to recover the monetary benefits arising under the terms of his employment as accumulated since 1st January, 1937, less certain sums drawn in cash and debited in respect of goods purchased over the period. It is strange that there is no averment as to the amount of the agreed salary, or of the bonuses granted, or of the sums drawn and amounts debited. As to all this the respondent seems to be relying upon his plea for an account. But so far as the appellant is concerned, as was pointed out by Windham, J., it is open to him to apply for particulars should he be so advised.

I would dismiss the appeals from the two orders with costs.

SIR BARCLAY NIHILL (President).—I concur and have nothing to add.

SIR NEWNHAM WORLEY (Vice-President).—I concur.