Gani v Garage (Civil Suit No. 113 of 1955) [1955] EACA 5 (1 January 1955)

ORIGINAL CIVIL

Before CRAM, Ag. J.

YUSUF ABDUL GANI, Plaintiff

ν.

FAZAL GARAGE, Defendants

Civil Suit No. 113 of 1955

Civil Procedure and Practice—Civil Procedure (Revised) Rules, 1948—Order 50, rule 7—Summons in Chambers supported by affidavit on information and belief—Order 18, rule 3 (1)—Affidavit by advocate stating grounds for belief supplied by client—Order 18, rule 1—Circumstances in which Court would order additional affidavit by client—Costs.

Decree-holders applied in chambers for an order to transfer a decree for execution to Tanganyika Territory. The summons was supported by an affidavit as required by Order 50, rule 7. The affidavit was sworn by the advocate for the decree-holders and deponed *inter alia* that the advocate had been informed by the decree-holders that the judgment-debtors had no property within the jurisdiction of the Supreme Court but had property and carried on business in Arusha, Tanganyika Territory.

Held (18-5-55).—(1) While Order 18, rule 3 (1) in interlocutory applications relaxed the best a cus-3-35. If while order 10, rule so (1) in microscopy approaches because the sest<br>evidence rule and the rule excluding hearsay by admitting statements on belief the use<br>made of the rule must be strictly scrutinized lest himself available to depone either to his own knowledge or to his own belief and so<br>state his own grounds it was preferable that he, rather than his advocate on his behalf, swore the affidavit lest unacceptable grounds were obliterated or some undue advantage obtained to the defeat of the rule.

(2) Costs of the advocate's affidavit and adjournment to be borne by the decreeholder.

Cases cited: Young v. J. L. Young Manufacturing Co. Ltd., (1900) 2 Ch. 753 C. A.; Phakey, A. N. v. Worldwide Agencies Ltd., (1948) 15 E. A. C. A. 1; Standard Goods Janmohamed v. Kassamali Virji Madhani, (1953) 20 E. A. C. A. 99; Noormohamed

J. J. Patel for applicant.

RULING.—The decree-holders apply for the transfer of the decree for execution in Tanganyika Territory. The summons is supported, as required by Order 50, rule 7, by an affidavit which, in this instance, is sworn by the advocate for the decree-holders and which contains, inter alia, statements of belief, viz.:-

"I am informed by the decree-holders that the judgment-debtors have no property within the jurisdiction of the Honourable Court to satisfy the decree herein"

and

"I have been instructed by the decree-holders to transfer the decree. to the Resident Magistrate's Court at Arusha as it is reported that the judgment debtors have property and have been carrying on business at Arusha, T. T."

Order 18, rule 3 (1) permits, on interlocutory applications, affidavits to contain statements of belief provided the grounds thereof are stated. The necessity for stating the grounds for any such statement of belief is emphasized by the Court of Appeal for Eastern Africa in Phakey, A. N. v. Worldwide Agencies Ltd., (1948) 15 E. A. C. A.

1. Paul, C. J., quoted with approval Rigby, L. J., in Young v. J. L. Young Manufacturing Co. Ltd., (1900) 2 Ch. 753, C. A.

"Now every affidavit of that kind (i.e. on belief without stating grounds) is utterly irregular and the only way to bring about a change in that irregular practice is for the Judge in every case of that kind to give a direction that the costs of the affidavit so far as it relates to matters of mere information and belief shall be paid by the person responsible for the affidavit. . . . The truth is that the drawer of the affidavit thinks he can obtain some irregular advantage by putting in a statement on information and belief and rests his case upon that. I never pay the slightest attention myself to affidavits of that kind whether they be used in interlocutory applications or final ones, because the rule is perfectly general—that where a deponent makes a statement on his information and belief he must state the ground of that information and belief."

Also Lord Alverstone in the same case: "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 in evidence in any shape whatsoever 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."

The Court of Appeal for Eastern Africa affirmed its disapproval of affidavits of this sort in Standard Goods Corporation Ltd. v. Harakhchand Nathu & Co., (1950) 17 E. A. C. A. 99 where Graham Paul, C. J., stated: -

"An affidavit of that kind ought never to be accepted by a Court as justifying an order based on those so called 'facts'. . . It is well settled that where an affidavit is made on information it should not be acted upon by any Court unless the sources of the information are specified."

The Court of Appeal re-affirmed its view in *Noormohamed Janmohamed v*. Kassamali Virji Madhani, (1953) 20 E. A. C. A. 8, citing with approval both Phakey's case and the case of the Standard Goods Corporation, Worley, V. P., condemning the affidavit filed as "drafted in a very slovenly fashion and the deponent does not pretend to say whether he is deposing to the facts sworn to of his own knowledge or on information given to him by someone else".

The effect of these decisions, on practice, was very marked because, up until the decision in Phakey's case, affidavits of the sort condemned had been common. But there has been recently an increasing practice of advocates filing affidavits on their own belief on information alleged by their clients and, of course, without pointing to any individual instance as intentional, it is patently obvious that such affidavits could be used to evade the practice laid down in Phakey's case. If a litigant wishes to obtain some improper advantage but may have reason to fear the consequences of deposing to some alleged knowledge or belief he may well conceive that he may obtain the advantage and avoid the risk by having some third party swear out an affidavit on information supplied by himself. I have recently taken exception to such affidavits being sworn out by advocate's clerks on stereotyped forms.

Order 18, rule 3 (1) amounts to a relaxation of the rule as to best evidence and hearsay and the use to which such a rule is put must be most strictly scrutinized. There may be occasions in which an affidavit may properly be sworn out by an attorney or advocate on the information of a litigant, for example,

when the litigant himself is out of the jurisdiction or ill but where the litigant himself is available or some third person himself aware of the facts then I am of the view that the best evidence rule jmplies that one ·of those persons should swear out the affidavit and not some agent, professionally qualified oi'. otherwise to do so on their behalf merely on inforn;iation supplied by the litigant, it may be itself hearsay else the proviso to the rule be defeated. There could be no objection to an advocate swearing out an affidavit on behalf of a client on facts within advocate's ·own knowledge or on his own belief after he had made due enquiries. But it is, at least, naive to present this affidavit without also stating that the !Client js unavailable -Or that the advocate, himself, has not confirmed the information, lest the Court infer that the true source would be unacceptable to the Court or the client have no grounds worthy of the name for his "information".

I am not at all to be taken to adumbrate, in this instance, that the decreeholders are attempting to obtain an improper advantage or that there is any connivance with them by their advocate to mislead the Court but the affidavit filed is not one that l am prepared to accept in the circumstances for the reasons outlined. I propose to order that an additional affidavit be filed by the decreeholders or one of them and that the summons stand adjourned for seven days for this purpose.

None of the costs -0f the present affidavit nor of the adjournment are to be charged iJ,gain-st the judgment-debtor. ·

Order accordingly.