Phakey v World Wide Agencies Ltd (Civil Appeal No. 25 of 1947) [1948] EACA 1 (1 January 1948)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR G. GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and BOURKE, J. (Kenya)

## A. N. PHAKEY, Appellant (Original Defendant)

## WORLD WIDE AGENCIES, LTD. (trading, as TRADERS), Respondents (Original Plaintiffs)

Civil Appeal No. 25 of 1947

(Appeal from decision of H. M. Supreme Court of Kenya)

Procedure—Order VI Rule 19 Civil Procedure Rules—Amendment to name of plaintiff in pleadings—Grounds of belief in affidavits.

Under Order VI Rule 19 Civil Procedure Rules the plaintiffs amended their plaint by changing the name of the plaintiffs from "Traders, Ltd." to "World Wide Agencies trading as Traders". The defendant moved to disallow the amendment but the learned Judge rejected the motion.

On appeal by the defendant.

Held (26-1-48).—(1) That the name of the plaintiffs was an integral part of the plaint and the change of name was not a substitution of parties.

(2) That the justice of the case required such amendment.

(3) That where affidavits are submitted (as in this case) stating that such affidavit is on information and belief, the source of that information and grounds for that belief must also be stated.

## Khanna for the Appellant.

Malik for the Respondents.

SIR G. GRAHAM PAUL, C. J.—From the plaint as it now stands amended in this case it appears that the plaintiff is the World Wide Agencies, Ltd., trading as "Traders". The plaint sets out a perfectly simple claim for payment of balance for goods sold and delivered and cash lent to the defendant by the plaintiff trading as "Traders". The original plaint was in the same terms as the amended plaint except that in the original plaint the name of the plaintiff was given as "Traders, Ltd.". Quite clearly the plaintiffs' advocate made a mistake in giving the trading name of the plaintiff instead of the real name. That was a mistake in the plaint and the mistake was quite properly corrected by amendment made in time under Order VI Rule 19 of the Civil Procedure Rules.

In spite of the mistake in the original plaint the defendant was apparently not misled at all as he filed a written statement of defence dealing specifically with all the items of the claim and actually claiming a set-off.

In that state of affairs the defendant's advocate moved the Court to disallow the amendment of the plaint. This motion he was entitled to make under Order VI Rule 21. The learned Judge in the Court below refused to disallow the amendment: Under the express terms of Rule 21 the learned Judge was bound to refuse to disallow the amendment unless he was satisfied that the justice of the case demanded that he should disallow it. Rule 21 gives a very wide discretion to the learned Judge to be exercised, of course, on consideration of the particular facts of each case. I am certainly not prepared to disagree with the learned Judge in the exercise of his discretion on the particular facts of this case. I listened patiently to the lengthy argument of appellant's advocate in this Court but he never once even hinted at any injustice whatever suffered by his client in this case by reason of the amendment. I can see no such injustice; the affidavit in support of the motion discloses no such injustice and I am not surprised that the learned Judge found himself unable to hold that the justice of the particular case required that the very proper amendment should be disallowed. I find myself in entire agreement with the learned Judge and I would dismiss the appeal with costs. I have had an opportunity of reading the judgment to be delivered by my learned brother the Chief Justice of Uganda, with which I agree

Before leaving this case I wish to refer to the affidavit filed in support of the motion. Paragraph 4 of that affidavit is on information and belief and grounds of the belief are not stated. This is in gross breach of the Rules as to affidavits. I pointed this out to counsel for the appellant who gave me to understand that this breach of the Rules was deliberate and not merely slovenly; he seemed to suggest that it was in accordance with local practice. If that is so, the sooner that practice is stopped the better. Lord Justice Rigby dealt very clearly with this matter in the case of J. L. Young Manufacturing Co., Ltd. (1900), 2 Ch. 753 at page 755 and I think it desirable to quote from the learned Lord Justice's. judgment in that case as follows: -

"Now, every affidavit of that kind is utterly irregular, and, in my opinion, the only way to bring about a charge in that irregular practice is for the Judge, in every case of the kind, to give a direction that the costs of the affidavit, so far as it relates to matters of more information or belief, shall be paid by the person responsible for the affidavit. At any rate, speaking for myself, I should be ready to give such a direction in any such case. The point is a very important one indeed. I frequently find affidavits stuffed with irregular matter of this sort. I have protested against the practice again<br>and again, but no alteration takes place. The truth is that the drawer of the affidavit thinks he can obtain some improper advantage by putting in a statement on information and belief, and he rests his case upon that. I never pay the slightest attention myself to affidavits of that kind, whether they be used on interlocutory applications or on final ones, because the rule is perfectly general—that, when a deponent makes a statement on hisinformation and belief, he must state the ground of that information and belief."

Lord Alverstone, who presided over the Court of Appeal in that case, said: $\rightarrow$

"If such affidavits are made in future it is as well that it should be understood that they are worthless and ought not to be received as evidence in any shape whatever; and as soon as affidavits are drawn so as to avoid matters that are not evidence the better it will be for the administration of justice.'

Respectfully and emphatically I agree with these authoritative pronouncements and I trust it will not again be necessary in this Court to draw attention to this very elementary matter of practice.

EDWARDS, C. J.—This is an appeal from an order of the Supreme Court of Kenya whereby that Court allowed an amendment to a plaint under the provisions of the Civil Procedure Rules, 1927, Order VI Rule 21. The respondents to this appeal had originally filed a plaint in which the name of the plaintiff was. shown as "Traders, Ltd." That plaint was filed on 14th June, 1947. It apparently being discovered that there was no such company as "Traders, Ltd." and it appearing that the name of the plaintiff should have been "World Wide Agencies, Ltd., trading as Traders" the respondents, acting pursuant to Order VI Rule 19, on 23rd July, 1947, delivered an amended plaint showing the name of the plaintiff as just set out, viz. "World Wide Agencies, Ltd., trading as Traders". The amended plaint differed from the original plaint in no other particular. On 9th July, 1947, the defendant filed a defence in which he contended that, "thesuit was a nullity being in the name of a non-existent plaintiff". Nevertheless,

he went on to plead, subject to the foregoing submission, that as regards the "remainder of the plaintiff's claim, namely Sh. 2,109/79 (after taking off certain unauthorized debits particularized in paragraphs 3 and 4 of the defence) the defendant sets off an equal part of his claim for Sh. 2,508 for balance of salary due and for travelling and other expenses incurred by defendant on<br>behalf of plaintiffs". It is abundantly clear, therefore, that the defendant well knew by whom he was being sued. Yet on 25th July, 1947, the defendant, through his advocate, filed a motion under Order VI Rule 21 asking that the "amended plaint be disallowed as being irregular and incompentent and also for an order that the plaint be struck out on the ground that it disclosed no reasonable cause of action and is frivolous and vexatious as it has been commenced in the name of a non-existent *persona* unknown to the law and that the action be dismissed. with costs". The motion came on for hearing on 17th September, 1947, before Mr. Justice de Lestang, who, after hearing argument by parties' advocates, dismissed the application. Against that dismissal the defendant now, by leave, appeals to this Court. At the hearing of the appeal before us Mr. Khanna, for the appellant, with much insistence argued many points, but it seems to me that the problem before this Court can be posed in this way, namely, Was the alteration of the name of the intended plaintiff such an amendment of the plaint as is contemplated by Order VI Rule 19 and, if it was, then was Mr. Justice de-Lestang right in allowing the amendment? (See Order VI Rule 21.) I am clearly of the opinion that the name of the plaintiff forms an integral part of the plaint and that, therefore, the plaintiffs were entitled, without leave, to make the necessary amendment (Order VI Rule 19). I do not agree with the contention of Mr. Khanna that, by reason of the amendment made under Rule 19, a new plaintiff was being "created", as Mr. Khanna terms it. I also hold that a plaint does form part of the pleadings and that the name of the plaintiff forms part of the plaint. It is implicit from the order of Mr. Justice de Lestang of 17th September, 1947, that he was satisfied that the justice of the case required the amendment to the plaint. Having regard to the defendant's plea in his written statement of defence for a set-off it is obvious that the justice of the case did require the amendment.

I would, therefore, dismiss this appeal with costs.

BOURKE, J.—In my opinion the plaintiff was enabled under Order VI Rule 19<sup>th</sup> to amend his plaint in the manner he did. I think equally that in the particular circumstances of the case the learned Judge in the Court below, who adjudicated on the application to disallow the amendment under Order VI Rule 21, could not reasonably have arrived at the conclusion that the justice of the case required. a disallowance of the amendment, and was right in refusing the application. I am content to give this somewhat terse expression of my views because I have had the advantage of reading the judgments that have just been delivered, with which I respectfully agree. Having had some experience of the local practice in drawing affidavits, I would wish in particular to associate myself with the timely remarks upon the subject made by the learned President of this Court.

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I would dismiss the appeal with costs.