Brooks v Singh and Others (C.C. 234/32.) [1932] EACA 38 (1 January 1932)

## ORIGINAL CIVIL.

## Before THOMAS, J.

## CHRISTEVEN PATRICK BROOKS.

- 1. ISHER KAUR w/o NARINDER SINGH. - $2.$ NARINDER SINGH. - BROWN & BARRATT, LTD. 3.

## C. C. $234/32$ .

Third party procedure—Civil Procedure Ordinance, Order I. Rule 18—Application for directions after consent judgment— Power of Court.

Held (31-10-32):—The Court has power to hear an application for directions under Order I, Rule 18, C. P. O., after judgment has been entered by consent of defendants at whose instance the third. $\mathcal{L}_{\mathcal{S}}$ party proceedings were commenced.

Daly for Third Party.

Phadke for Defendants 1 and 2.

JUDGMENT.—This action was brought in respect of a charge given by the first and second defendants. These two defendants. desired to obtain an indemnity from a third party. On the 13th of September leave of the Court was obtained to the issue of a third party notice. This was accordingly issued and duly served. On the 14th of September the date of hearing was fixed for the 3rd of October, and notice thereof was given to the third party on the 23rd of September. The third party entered an appearance. On the appearance was stamped with a rubberstamp the usual notice as to delivering a defence within fifteen days, which is used on the ordinary appearance to a suit.

On the 3rd of October, in the absence of the third party, judgment by consent was entered in favour of the plaintiff against the first and 2nd defendants. Provision was also made for a period for redemption and for the taking of accounts, etc.

Subsequently to that judgment, on the 18th of October, a summons was taken out on behalf of the first and 2nd defendants applying for directions to be given under Order I, Rule 18-(Third Party Procedure).

The third party attended by her advocate and objected that no order could be made since judgment had already been given.

Order I, Rule 18, reads as follows: "If a third party enters an appearance . . . the defendant giving the notice may apply to the Court by summons in chambers for directions and the Court . . . may . . . 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 . . .

This Rule corresponds with the English Rule 52 of Order XVI, which was presumably in force at the time of the framing of the Kenya Rules. Since that date the English procedure has introduced a new Order, viz., Order XVIA, which came into operation on the 28th of May, 1929.

By Rule 3 of Order XVIA, the third party becomes from the time of the service of the notice upon him a party to the action with the same rights in respect of his defence... as if he liad been duly sued in the ordinary way by the defendant.

Rule 7 (1) of OrderXVIA allows the defendant to apply for directions. Rule 7 (2) of Order XVIA provides that directions may be given either before or after any judgment has been signed by the plaintiff against the defendant in the action.

In the Kenya Rules there is no provision corresponding to Rule 3 of Order XVIA, and also no Rule corresponding to Rule 7 (2) of Order XVIA.

From the absence from the Kenya Rules of any such provisions as are contained in Order XVIA, Rule 3, it would seem clear that a third party is not a defendant and therefore that the instruction that a defence should be delivered is of no effect.

From the absence from the Kenya Rules of any Rule corresponding with Order XVIA, Rule 7 (2) it might be urged that there was no power to make an order on an application for directions after trial had taken place or judgment had been given.

Rule 7 (2) of Order XVIA may, however, have been passed in order to give effect to judicial decisions. I have searched for such and as a result I have found three cases which I will proceed to deal with.

Two of them, viz., Rick v. Darrett, 1884, 28 Sol. Jo. 513, and Caister v. Chapman (1884), W. N. 31, are not in the library. Both are, however, referred to in the (English) Annual Practice of 1924 at p. 291, and also in the English and Empire Digest at pp. $455$ and $456$ .

In the latter case, Matthew, J., appears to have used the following language: "It was not intended by these Rules that an action should go on to trial as between defendant and third party where the question between the plaintiff and defendant has been determined. What was meant was that the question between defendant and the third party should be determined at the trial of the question between plaintiff and defendant. That cannot be done here, because there will be no trial between plaintiff and defendant."

Both these decisions were in respect to cases brought under Order XVI of the English Rules.

The third case was eventually decided by a Court of higher authority also in 1884: It is the case of the Gloucester Banking Co., Ltd. v. Phillips Creagh, third party, 12 Q. B. D., p. 533. The facts were as follows: "An action having been brought by the plaintiff company against the defendants as executors for a sum due on a guarantee, dated the 5th of July, 1882, for £300, given by their testator in respect of the banking account of Mrs. Creagh, a married woman, the defendants entered an appearance and obtained leave to serve and served a third party notice under Order XVI, Rule 48 on her. She appeared. The defendants paid £291/10 into Court. The plaintiffs accepted the money and gave notice to the defendants of the acceptance in full satisfaction of the claim. The defendants then took out a summons for directions, or for judgment against the third party, under Order XVI, Rule 52, and on the 8th of February last the third party appeared before a Master, who made no Order. On the 12th of February an Order was obtained to stay the action on the ground of the plaintiffs' acceptance of the sum paid into Court. On the 5th of March, the defendants appealed to Field. J., at chambers, against the refusal of the Order under Order XVI, Rule 52, and the third party was asked to state what question of liability there was to be tried, and to make an affidavit of merits, but declined, and insisted that she had a right to proceed to trial, and that the Judge had no power to order summary judgment."

Judgment was entered in favour of the defendants. Οn appeal it was held that the Rule had been accurately followed in the Order of the learned Judge and the appeal was accordingly dismissed with costs.

So that in that case not merely an application for directions was entertained, but judgment was actually entered up.

If the third party had so wished she might have gone into her defence upon that occasion. She might have shown that it was, in fact, a case that could not be properly dealt with in connexion with a third party application, or she might have shown that she had a defence to the third party proceedings. In. the former event the Court might have refused to make any Order: in the latter the Court might have caused issues to be framed.

In that case the defendants paid practically the whole amount claimed into Court. In the present case the defendants did not file a defence and when the matter came to be formally

proved consented to judgment, possibly with the view to saving expense. There seems to me to be little if any difference in principle between the one and the other course.

I consider that the case decided by the Court of Appeal is that which most closely resembles the present case and is the 'more safe to follow. Moreover, there would seem to me to be little use in not allowing third party proceedings in a case where the plaintiff is apparently a stranger to the third party, and all matters between the defendants and the third party can be dealt with if necessary under this procedure.

The third party has taken up a similar attitude to that of Mrs. Creagh. It is fortunate that no application was made in the alternative for judgment. As it is I am satisfied that the matter is one that might well be dealt with on an application for directions. Provided that the Court is satisfied that there is a proper case to be tried it will give the necessary directions as to the manner of the trial.

The objection is disallowed and the costs of this objections will be the defendants' in any event.