[1968] EACA 1

ISEZSY COP

IN THE COURT OF APPEAL FOR EAST AFRICA AT MOMBASA

(Coram: de Lestang, Ag. P., Duffus, Ag. V-P., & Spry, J. A.)

## CIVIL APPEAL NO. 36 OF 1968

## **BLTWEEN**

ABDULLA SULEMARJI ........... APPELLANT $A$ N D

<table><tbody>ESMAIL JIVANJEERESPONDENT</tbody>

(Appeal from a Ruling of the High Court of Kenya at Mombasa (Mosdell, J.) dated 28th June, 1968

in

Civil Case No. 222 of 1967)

-----------000**----------**--

JUDGMENT OF DUFFUS, AG. V-P.

This is an appeal against an interlocutory order of the

High Court refusing an application by the defendant/appellant

for further particulars of the plaint. This appeal is brought

with leave.

à

$\overline{a}$

The relevant portion of the plaint reads -

$"3.$ Plaintiff's claim against the Defendant is for $\text{sh.}32,550/$ - being the amount due and owing by the Defendant to the .... Plaintiff for balance of cash lent and advanced by the Flaintiff to the Defendant as per following particulars -

> Amount of money lent and advanced by the Plaintiff to the Lefendant upto $\pm$ .53,000.00 August, 1960.

$\mathop{\mathtt{Les}\mathbf{s}}\nolimits$ paid by the Defendant to the Plaintiff on or about

25th April $\ldots$ /2

| 2 | | |---|--| |---|--|

25th April 1962 shs.12,000.00

Less paid by the Defendant to the Plaintiff during 1964, 1965, 1966 and 1967 as per particulars already supplied to the Defendant on or about 14th April, 1967 shs. 8,450.00

shs.20,450.00 shs.20,450.00

Balance siu.32 ¹550.00

4. Demand for the said amount has been made but the Defendant has failed or neglected to pay the said amount or any part thereof.

5. The Defendant resides at Mombasa, the amount was lent and advanced at Mombasa and the same is repayable at Mombasa within the jurisdiction of this Honourable Court."

The appellant entered an appearance by his advocate and then applied for further particulars by letter and on the plaintiff/respondent faili�g to give such pcrticulars he appl:1d to the Court by virtue of Order VI Rule 3 of the Civil Procedure (Revised) Rules, 1948.

In summarizing the facts I would first refer to the correspondence between the parties prior to the issuing of the plaint, which was put in evidence by consent on the hearing of the application.

This started "With a letter from the respondent's advocate to the appellant dated 12th April, 1967 ¹demanding the payment of w.46 ¹ 550/- being balance of the amount lent and advanced by the respondent to the appellant. The appellant by his advocate replied on the 13�h April, 1967 ¹denying o"Wing the respondent **a,;i(, .. 'i** any money, but^A 'Witnout prejudice for particulars of the alleged loe.n. The respondent's advocates replied on the 14th �pril ¹ 1967. They stated,��, that shs.35,000/- was due for cash lent and advanced befor� 1958 ¹but further details of this

amount .... /3

amount were not available and that t�.20 ¹ 000/- was in respect of a charge created by the appellant on property of a Mr H. C. Stephen in i..ugust, 1956 ¹which sum was realised and kept by the appellant. The letter then set out in detail payments made on account by the appellant in 1964, 1965, 1966 and 1967 of some shs.8 ¹450/-. The balance according to these details then appeared to be st;:.46 ¹ 550/-. It must be noted that the plaint claims shs.53 ¹ 000/- as being money lent and advc.nced by the appellant upto August, 1960. The main differences between the plaint and the particulars given in the letter of the 14th April were

> (a) a decrease of shs. 2 ¹ 000/- in the amount claimed, (b) the amount now set out in the plaint is for money lent and advanced **¹ ¹** before January **1** 1960 **¹ 1 1** but in the letter of 14th April it was said as to sh::.35,000/- to be for moneys lent and advanced "before 1958**¹¹**and as to sh!.20,000/- to be moneys h.:.d and received for the respondent in i-1.ugust, 1956, by the realisation on proporty of H. C. Stephen,

(c) there is an ade.itional payment of shs.12 ¹ 000/ on or about the 25th April, 1962.

After the suit was filed appellant's advocate wrote asking for particulars as to when and how this money was lent. The respondent's solicitor replied by his letter of 16th September, 1967, stating that the shs.53 ¹ 000/- was the balance of the amount due for cash lent ru1d advanced from time to time and upto August, 1960 ¹ and that his client 11has no particulars of the dates or the various amounts lent from time to time or dates and amounts of any rep.:.yment prior to l,.uguet **1** 1960**11•**

The appellant then appli€d by the motion asking for the particulars now/sucject of this appeal. He asked for an order

that - ..... /4

$that -$

$\ddot{\phantom{0}}$

- $"1.$ The Plaintiff do give to the Defendant further and better particulars to show when the amount of Shs.53,000/ $=$ was lent and advanced by the Plaintiff to the Defendant. - The Defendant may file his defence $2.$ herein within such time as may be ordered. - $\mathbf{3}$ . The costs of this application be provided for."

The appellant filed an affidavit in support of his application and the respondent filed an affidavit in reply. In paragraph 4 of his affidavit the respondent averred -

> $114.$ Prior to the filing of the application herein by the Defendant it was made absolutely clear that I cannot give any further particulars or information as I am not in possession of further or better particulars or information other than what I have already supplied."

The respondent then annexed to his affidavit the copy of the letter of the 14th April, 1967, to which I have already referred and stated that this letter gave all the particulars which he had. I have already set out the differences between the contents of that letter and of the plaint.

The application for further particulars is made under Order VI Rule 3 which provides that further and better particulars of the nature of the claim or defence, or of any matter stated in any pleading may in all cases be ordered upon such terms as to costs and otherwise as may be just. Rule 1 provides that every pleading shall contain a statement in a concise form of the material facts upon which the party pleading relies for his claim but not the evidence by which they are to be proved.

I would also here refer to the requirements of a plaint. Order VII (b)(1), Rule 1 provides, inter alia -

$\cdots\cdots\cdots$

"1. (1) The plaint shall contain the following particulars:-

(e) The facts constituting the cause of action and when it arose."

The appellant $\bullet \bullet \bullet \bullet /5$

The appellant contended both in the court below and here that the plaint did not comply with this rule, as it did not state when the cause of action arose, as ii only stated "an \_mount of money le..t and advanced by the Plaintiff to the Defendant upto August, 1960".

The respondent's advocate, Mr Ram Hira, conceded that it was necessary to give the date of the cause of action but he submitted that this was sufficiently given by stating that it happened before a certain date and that in any event the respondent's statement on an oath that he could not give further particulars should be accepted. Er Ram Hira also stressed the point that this was essentially a matter in the discretion of the judge and that his ruling should not be disturbed by this Court.

The learned judge refused to order particulars and in his ruling after referring to the judgment in Phillips v. Phillips and others 4 Q. B. D. $127$ said -

> "All this is eminently reasonable but in this instant suit the plaintiff has averred on oath that he is unable to5Hpply any further particulars. It seems to me that the defendant is in as good a position to know the facts as the plaintiff. The Plaintiff appears to have been lending money to the defendant at any rate for the past 12 years and defendant appears to have made re-payments on account from time to<br>time to the plaintiff over the same period."

and then finally the learned judge said -

"In this case I think the best course is $\Box$ to refuse to order particulars until after discovery as was done in Ross v. Blakes Motors Ltd. (1951) 2 All E. R. 689. I, therefore, make the following order:-

- The defendant shall file his defence $\mathbf{1}$ . within 14 days from to-day. - $\mathcal{L}$ Each party shall make discovery to the other under Order X rule 11 within 14 days from the filing of such defence. - $\mathbf{3}$ . Plaintiff be at liberty to supplement the particulars he has already given within 14 days after discovery and inspection has taken place. - $4.$ Costs of this application shall be costs in the course."

Mr Anjarwalla, $\ldots$ /6

$-5-$

i,

Nr .ll.njarwalla, who appeared for the appellant submitted that the application for particulars was reasonable and that the appellunt would be placed at a considerable disadvantage if he had to file his defence without knowing when the cause of action arose. In this respect I refer to Rule 5 of Order VI which requires the defendant to raise by his pleading all matters which show that the action is not maintainable and

> **11 • • • •** all such grounds of defence or reply, as the ccse may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as for instance, fraud, limitation, release, payment, performance, or facts showing illegality either by statute or common law. ¹¹

It is quite cle�r that the particulars given in the plaint are inadequate. The plaint only refers to an amount of money lent and advanced upto August, 1960, and the question arises whether this was an amount lent in cne sum or in a series of loans and if so in what amounts and when. The cause of action is stated as arising upto August, 1960. This is a most indefinite and inconclusive statement. According to this **the** date of the cause of action whilst limited on one side to not "beyond August 1960 ¹ ¹¹goes back on the other to infinity. There can be no doubt that this is undoubtedly a case where further and better particulars would be required and the only question here is whether the judge wcs correct in acting as he did on the respondent's assertion an oath he could not give further particulars.

The judge relied on the statement contained in the respondent's affidavit and then went on to say **¹ ¹** that it seems to me that the defendant is in as good a position to know the facts as the pl.:iintiff". With respect this statement does appear to justify Mr Anjarwalla' s submission that the learned judge appears to have accepted the respondent's case in advance, as

nowhere •.••• /7 nowhere does the appellant on the record admit having borrowed any money from the respondent, e.nd I cannot from the records find any facts to justify the conclusion that the appellant would be in as good a position as the respondent to know the facts. It does appear from the respondent's affidavit that he can in fact supply some further and better particulars. In his affidavit the respondent refers to the letter of the 14th April and states that this letter gives all the particulars that he had, but reference to this letter shows that -

> (a) the amount lent was on dates before 1958, and (b) that a specific sum of shs.20 ¹ 000/- was had and received by the appellant in August, 1956, on the "Stephen charge",

but in hie plaint the respondent only claims one amount of shs,53 ¹ 000/- for moneys lent and advanced upto August, 1960. Clearly ap&rt from any other consideration the appellant due to the material differences between the plaint and the particulars supplied in tre letter of the 14th April is placed in position of considerable uncertainty. The respondent states that all the particulars are contained in th&t letter but if this is so, then is he continuing with the clnim of sru,20¹ 000/- in respect of the 11Stephen charge"? Is he claiming for money lent in one sum or in a series of sums prior to August, 1960 ¹or is this date correctly st�ted es being prior to the yeer 1958. On this point the appellant is in my view entitled to have the matter clarified by further and better particulars of the plaint.

The respondent in his affidavit states that he was prepared to file an �ffidavit of documents a.nd allow inspection after the defendant had filed his defence. The judge *in* his ruling ordered that the party should make discovery under Order X Rule 11 within 14 days from the filing of the defence. The appellant complains that the order of discovery was improper as neither party had applied for this order. This would appear to be correct.

The ••••••• /8

The respondent bed volunteered to give discovary of documents but neither party had applied to the court for discovery.

llil order of this sort is a matter to the discretion of the J�dge for this Court will not interfere unless satisfied that some wrong principle has bebn applied or thct some manifest injustice may result to either party, The respondent hcs not complied with the requirements of Order VII, Rule l as he has not stated when the cause of action arose. As I pointed out it has been made apparent by the respondent's own affidavit that he can supply some further particulars. It appecrs that at least a portion of the lump sum that he claims refers to the s�.20¹ 000/- in the Stephen transaction received by the appell�nt in August, 1956 e.nd that the bal:mce was for one or more transacticns either before 1958 or before 1960. The respondent must be in a position to say at least approximately when this transaction or series of transactions started and to fix the time within same definite period and not to leave it as at present comp�etely indefinite and he should also be able to say the approximate date and amounts of each individual loan if there were in fact a series of transactions, I consider that to require the defendant to file his defence without furthGr particul&rs and without knowing **approximatoly** when the c�usc of &ction srosc would be most emb�rrassing and unfair.

The lc�rned jud[c followed precedent of an order made in Ross v. Blakes Motors Ltd. (1951) 2 All E. R. 689. The facts in that case were entirely different, there the required p�rticulars were on f�cts clc�rly within the poculi�r knowledge of the defendants, In England by Order 18, Rule 12(5) of the Rules of the Supreme Ccurt particulars of a claim must not be ordered before servicu of the defence unless in the opinicn of the Court, the order is necessary or de5Srablc to enable the defend?.nt to plead or for other special reasons, This wou�d o� the position }te�e in thisCtv.i�

where ..... /9

where it would be most unfair to ask the Defendant to plead his defence in a claim for moneys lent and advanced without knowing when the cause of action arose and without really knowing the claim or claims that he has to meet. After full consideration I am of the view that this is a case in which the learned judge has wrongly exercised his discretion and this appeal should be allowed. The respondent can at any rate give in full such particulars as he has to show when the cause or causes of action arose.

I would therefore allow this appeal and quash the order of the High Court and in lieu thereof I would order that the plaintiff/respondent be ordered to give the further particulars sought by this application, that is to say when the amount of st.53,000/- was lent and advanced, within 14 days and that the defendant/appellant should file his defence within 14 days thereafter, and I would order that the cost of the application in the High Court be costs in the cause. I would allow the appellant the costs of this appeal.

> Dated at Mombasa this 22nd day of November, 1968.

> > W. A. H. DUFFUS. AG. VICE-PRESIDENT

$CK_{\bullet}$

IN THE COURT OF APPEAL FOR MAST AFRICA AT MOMBIS.

(Coram: do Lestang, 4g. P., Duffus, Ag. V-P., & Spry, J. A.)

CIVIL APPELL NO. 36 OF 1968

**BETWEEN**

ABDULLA SULEMANJI APPELL. NT $A$ N D RESPONDENT ESMAIL JIVANJES. . . $\mathbf{1} \mathbf{1} \mathbf{2} \mathbf{1} \mathbf{1}$ $\ldots$

> (Appeal from a ruling of the High Court<br>of Kenya at Mombasa (Mosdell, J.) dated 28th June, 1968

> > in

Civil Case No. 222 of 1967)

## JUDGMENT OF SPRY, J. A.

I have had the advantage of reading the judgment of Daffus, Ag. $V-P.$ , with which I am in complete agreement. I think a defendant must be entitled to further and better particulars, when the information he is seeking may materially affect the framing of his defence or the decision whether to make any payment into court. I appreciate the difficulty experienced by the learned judge when faced with an affidavit by the plaintiff that he was "not in possession of further or better particulars or information other than what I have already supplied". I appreciate also that the plaintiff may not be able to furnish the exact date or dates on which a loan or loans is or are alleged to have been made. I find it hard to believe, however, that he cannot say whether the money he alleges he lent was advanced on one occasion or several and cannot indicate at least approximately the period within which the loan or loans was or were made. Moreover, the plaint expressly refers to the letter of 14th April, 1967, written by the plaintiff's advocates and yet, as Duffus, $\lambda_5$ . V-P., has pointed out, the claim in the plaint is materially different from that in the letter. In this respect, I think the plaintiff is clearly under a duty to particularize his claim. $\quad \ \ \texttt{In}$ my view, this is a case where an order should have been made for the

/plaintiff.......

plaintiff t.::i furnish the best particulars h,:: ca:1. In the event, they m1.y not be very satisf�ctory but they may h<Jlp th.:; defendant to prepar,., his case and m3.y ¹in some me3.sure, tie down the plaintiff, whose case at present seems to me ambiguous. RGluctant as this Court is to interfere with a judici�l discretion, I think this appaal should be allowed and I agree with the ord. Jr propos2d,

> Dated at Mombas,:1. this 22nd day of November, 1968.

> > J. F. SPTIY . .. • • • • • • • 0 •••••• ••• •••• • • •••

JUSTICB OF �PPEAL

J. A. O.

IN THE COURT OF APPEAL FOR EAST AFRICA AT MOMBASA

(Coram: de Lestung, Ag. P., Duffus, Ag. V-P., & Spry, J. A.)

## CIVIL APPEAL FO. 36 OF 1968

BETWEEN

ABDULLA SULEMANJI 😱 🔹 🔹 • • • • • $\bullet$ APPELLART $\sim$ $A$ N D

ESMAIL JIV RUCH . . . . . . . . . . . . . RESPONDENT

(Appeal from a ruling of the High Court of Kenya at Membasa (Mosdell, J.)<br>dated 28th June, 1968

$\overline{in}$

Civil Case No. 222 of $1967$ )

## JUDGMENT OF DE LESTANG, AG. P.

I also agree. The order will be as proposed by Duffus, $Ag$ .

Dated at Mombasa this 22nd day of November, 1968

> M. C. N. DE LESTANG $\cdots\cdots\cdots\cdots\cdots$

AG. PRESIDENT

I certify that this is a true copy of the original.

> #Hiswam $\cdots$

DEPUTY REGISTRAR

$J. A. O."$

$V-P.$