Souza v Souza (Civ. App. No. 23/1937) [1938] EACA 24 (1 January 1938)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenva): SIR CHARLES LAW, C. J. (Zanzibar); and FRANCIS, Ag. C. J. (Uganda).

#### HORTENCIA FELECIA DE SOUZA by her Attorney John Maximian Nazareth, Appellant (Original Petitioner) $\mathbf{u}$

# JOHN SEBASTIAN DE SOUZA. Respondent (Original Respondent) Civ. App. No. 23/1937

(Appeal from decision of Webb, J. (Kenya.))

Divorce Jurisdiction—Practice—Power of Attorney—Proceedings instituted by attorney—Power of Attorney unstamped—Effect of subsequent stamping—Stamp Ordinance (Cap. 57, Laws of Kenya) section 37, 44 $(2)$ —Costs.

The petitioner through her attorney, a member of the firm of advocates whom she had instructed to act for her, on 4-5-37 presented a petition for judicial separation and alimony. The attorney on 28-4-37 had been given leave by Lane, Ag. J., to present and sign the petition subject to the usual affidavit of verification being sworn by the petitioner. The Power of Attorney was executed at Bombay and was not stamped in Kenya until 24-7-37. The petition was dismissed on the grounds: $-$

(1) That the omission to stamp the Power of Attorney in time rendered the proceedings purported to be instituted under it a nullity:

(2) That a Power of Attorney is not merely evidence of an agreement but is itself the instrument which confers upon one person authority to act for another:

(3) That an officer who receives and files legal proceedings instituted under a Power of Attorney 'acts upon' it within the meaning of section 37 of the Stamp Ordinance and that it is the duty of a "Public Officer" before he acts upon a Power of Attorney to satisfy himself that it has been duly stamped and that it appears to have been executed by the donor.

The attorney was ordered personally to bear the respondent's costs. The petitioner appealed.

Held (24-2-38).—(1) That the attorney as advocate duly instructed by the petitioner could properly be given leave to present and sign the petition irrespective of his power of attorney (ex parte Hobson (70 L. T. 817) followed).

(2) That the defect in the stamping of the power of attorney was not a defect which rendered the document incapable of admissibility in evidence and thus not curable by subsequent stamping: The document on being subsequently duly stamped became admissible in evidence: such stamping related back to the date of the power of attorney so as to validate the proceedings taken under it prior to the stamping.

(3) (Per Law, C. J. and Francis, Ag. C. J.) that in any case as the attorney was not a party to the suit he should not have been ordered personally to pay the respondent's costs.

*Burke* for the appellant: Section 14 of the Stamp Act, 1891, and section 35 of the Indian Stamp Act, 1899, correspond respectively to sections 37 and 44 of the Stamp Ordinance (Cap. 57, Laws of Kenya). Failure to stamp a document does not render the document invalid unless that is specifically enacted: Gulzari Lal v. Ram Gopal (1937) 1 Cal. 257).

If the document can be subsequently stamped, such a stamping has a retrospective effect and validates everything previously done under the document: Anon (5 L. J. K. B. 76); Rogers v. James (129) E. R. 59); Burton v. Kirkby (129 E. R. 70); In re Indo-China Steam Navigation Co. (1917 2 Ch. D. 100) and Bellamy v. Saull (122 E. R. $459$ ).

Subsequent stamping effected a ratification of the previous acts of the attorney: Maharaja of Rewah v. Swami Saran and another (25 All. 635) and Ancona v. Marks (31 L. J. n.s. Ex. 163).

An attorney duly authorized can sign a plaint and instruct advocates to sue if his principal is absent from the jurisdiction: in such case the words "through her attorney" in the title of the suit are surplusage: Abdulla Walii Hirii v. Dhanii Bhimii and Co. (8) K. L. R. 206).

No Power of Attorney was necessary because the attorney as advocate was entitled to leave to present and sign the petition: Ex parte Hobson (70 L. T. 817). If the appeal is successful the order for costs must be set aside. The "usual order" for costs should be made unless there was improper conduct by the advocate: Aires v. Aires (65 L. T. 859) and Cogle v. Cogle (12 K. L. R. 105).

Khanna for the respondent.—In so far as the attorney was adjudged to pay costs, the appellant has no right to appeal. The attorney is not a party to the suit: Civil Procedure Code (Kenya) section 66 and 67, R. S. C. O. XVIII r. 1; Indian Civil Procedure Code, section 96; re Bradford (15 Q. B. D. 635) and Motilal v. Kanji (56 Bom. 16).

The petition must be signed by the petitioner under rule 2 of the Divorce Rules, 1932, rule 99 excludes the application of Order VI r. 25 to petitions.

The petition was allowed to be signed by the attorney qua attorney. Thus the unstamped Power of Attorney was acted upon in contravention of the Stamp Ordinance (Cap. 57), sec. 37. This section is mandatory and the prohibition against acting upon an unstamped instrument unlike the prohibition as to receiving the instrument in evidence goes to the jurisdiction of the Court and makes an order in contravention of the section a nullity and not a mere irregularity: Chenbasapa and another v. Lakshman Ramchandra (18 Bom. 369) and Joyma Bewa and others v. Easin Sarkar and others (53 Cal. 515) at 520. Contravention of section 37 can be challenged at any time whether before or after the decree. Even if the provisions of section 37 could have been circumvented by an application for leave to sign as advocate the position must be judged as it was in fact and not as it might have been.

Leave to sign was applied for and given *qua* attorney and the petition is expressed to be brought through the attorney. The application of section 37 cannot be excluded merely because the Court might have granted leave to sign the petition to the attorney as advocate. Section 44 (2) of the Stamp Ordinance should not be construed to have greater retrospective operation than its language renders necessary: Lauri v. Renad (1882 3 Ch. D. 402) at 421. The expression "as if it had been acted upon" should not be construed into "deemed<br>to have been duly stamped". A Power of Attorney is acted upon as soon as any act is purported to be done under its authority by the attorney. A Power of Attorney is not merely a memorandum but itself confers the authority.

### Burke replied.

Sir Joseph Sheridan, C. J.—There are three points which I propose to consider in this appeal and they are as follows: (1) whether the Order made by Mr. Justice Lane was properly made; (2) whether the effect of that Order was such as to render unnecessary a consideration of the question as to whether the Power of Attorney referred to in the case was stamped in such circumstances as to validate it for the purposes of the case and $(3)$ should it be necessary to consider $(2)$ whether the stamping of the document in the circumstances in which if took place had the effect of validating what had taken place prior to the stamping. On the first point the order of Mr. Justice Lane was made after a consideration of the relevant rule 2 ( $B$ ) of the Divorce Rules, 1932, section 4 of the Divorce Ordinance and the decision in ex parte Hobson (70 L. T. 817) which stated the practice followed in England in an interpretation of a rule which is identical with rule 2 ( $\beta$ ) of the local rules. Leaving aside for a moment that Mr. Nazareth of the firm of Advocates, Nazareth and Mehta, in the Notice of Motion filed by his firm asking that he should be allowed to sign the petition on behalf of the petitioner who was out of the Colony. described himself as the attorney of the petitioner, it seems to me that the learned Judge would have appointed him as a proper person to sign the petition following the decision in *ex parte Hobson* (supra), I agree with Mr. Burke that the use of the word "Attorney" should have made no difference to the result; nor should I be prepared to treat the proceedings as invalid on that account when I consider that Mr. Nazareth's firm had received instructions to file the petition and the statutory affidavits were subsequently signed by the petitioner, thus ratifying the institution of the petition. The point is too technical to receive consideration. A decision on this point is sufficient to dispose of the appeal but as lengthy arguments with many authorities were addressed to us on the stamp question, I think, I should express my views in the matter. Whether in England, India or Kenya my opinion is that a failure to stamp a document—which unlike a promissory note in Kenya and India cannot be acted upon unless it is stamped at the time prescribed by law—has not the effect of invalidating proceedings under the document prior to its being stamped. In the case of a promissory note no amount of stamping or penalty can cure the omission to have it stamped at the statutory time as distinct from other documents such as the one under consideration which may be stamped with a retrospective effect. The case of Burton v. Kirkby (7 Taunt. 174) is in point. The headnote to the case reads, "Where a judgment had been entered up on a warrant of attorney given on

an insufficient stamp, the Court held that the objection was cured by procuring the instrument to be stamped with the proper stamp. And that although the defendant had already applied to the Court to set aside the Judgment" and the section of the Statute (5 W & M, Cap. 21, sec. 11) relevant to the case is in the following terms, "No such record, deed, instrument or writing, shall be pleaded or given in evidence in any Court, or admitted to be useful or available in law or equity, until as well the said duty, as the said sum of £5 (a penalty) shall be first paid to their Majesties' use". When one considers that the Statute in that case was regarded as of a directory character and the failure to stamp the instrument at an earlier stage should not be held to invalidate either the document or the proceedings taken under it, I am unable to hold that a different view should be taken in the construction of the local Stamp Ordinance. It is right to say that no authority on the question was brought to the notice of the learned trial Judge.

I would allow this appeal and refer back the petition to the Supreme Court for hearing on the merits. The appellant will have the costs of the appeal and those already incurred in the Supreme Court and the respondent will refund the costs already paid to him.

Sir Charles Law, C. J.—The first question for consideration is whether or not the application for leave to sign the petition on behalf of the petitioner was properly granted in Civil Cause No. 46 of 1937. Under rule 2 (B) of the Divorce Rules, 1932, the petitioner was required to sign the petition herself. Leave however was given to her attorney, John Maximian Nazareth, to sign on her behalf. It was argued, on behalf of the respondent that it was not competent for the Court to make that order as there is no provision in the Divorce Rules to that effect. But rule 91 provides that matters of practice or procedure may be governed by the Divorce Ordinance (Cap. 170, Laws of Kenya) in cases where the Divorce Rules do not apply. Under section 4 of the Ordinance such jurisdiction may be exercised in accordance with the law applied in matrimonial proceedings in the High Court of Justice in England. In view of that provision, and on the authority of $Ex$ parte Hobson (70 L. T. 817), leave was given to the petitioner's attorney to sign the petition on her behalf, subject to the petitioner swearing the usual affidavit under rule 4 $(a)$ . The petitioner subsequently swore the necessary affidavit, and, in effect, adopted the petition. In my opinion, it was competent for the Court to follow the English practice and to make that order.

The point was further taken that Mr. Nazareth was not petitioner's duly constituted attorney at the date of the order because of a defect in the stamping of the Power of Attorney. To my mind this point in itself is of no substance because the Court was free to appoint any person to sign on petitioner's behalf. It is observed that Mr. Nazareth is also a member of the firm of petitioner's Solicitors, and for that reason alone it was reasonable and proper for the Court to appoint him. He appears to have been the most obvious and suitable person for the purpose.

With regard to the defect in the stamping of the Power of Attorney. It was not a defect which rendered the document incapable of admissibility in evidence and thus not curable by subsequent stamping, as is the case with a Bill of Exchange or a Promissory

Note (section 37 (a) Stamp Ordinance, Cap. 57); Gulzari Lal v. Ram Gopal (1937 1 Cal. 257). The Power of Attorney was subsequently duly stamped and therefore became admissible in evidence, when it could be and was acted on by the learned trial Judge in Divorce Cause No. 7 of 1937 (section 44 (2) Cap. 57). Such stamping related back to the date of the Power of Attorney. There is ample authority<br>to support that proposition: Anon (1827 5 L. J. K. B. 76); In re Indo-China Steam Navigation Co. (1917 2 Ch. D. 100).

In the circumstances, I would hold that the petition was properly filed and should be heard. Accordingly, I would allow the appeal with costs here and below up to this date and would direct that the petition be remitted to the Supreme Court for hearing. In dismissing. the petition, the learned Judge ordered the attorney personally to pay the respondent's costs. As it is not competent for the Court to order anyone who is not a party to a case to pay costs, that order must be set aside and the costs, if paid, must be refunded by the respondent to the attorney.

Francis, Ag. C. J..-Judgments read by President and Sir C. Law, C. J., Zanzibar, with which I concur.