Tyson Bros. Ltd v Newsome (Civil Case No. 130 of 1928) [1928] EACA 7 (1 January 1928)

$61$

ORIGINAL CIVIL.

Before SIR JACOB BARTH, C. J.

TYSON BROS. LTD. v.

J. G. NEWSOME. C. C. $130/1928$ .

Civil Procedure Rules, 1927, Order 10, Rule 14-production of documents.

$Held:$ —That where the claim is liquidated on the face of the plaint there is no duty on the Court to go beyond that to discover whether the plaint sets out the full facts.

The following Order was made by the Registrar:-

Mr. Harrison appeared before me and when asked for agreement, or other document showing the advance and undertaking of the defendant, Mr. Harrison states that it was a verbal arrange-On being further questioned he states that there was a ment. letter written to the defendant confirming the advance, and I asked him, as the original was in the possession of the defendant, to file a copy in the case file as an exhibit, which he refused. He also stated that he held the receipt of defendant for Sh. 4,000 but also refused to produce the said receipt. Under Order 10 Rule 14. I hold that the Court is entitled to call for both the receipt and said letter to be produced, and Mr. Harrison has refused to produce same. Therefore I refuse to enter up judgment.

Harrison, for plaintiff.

JUDGMENT.-In this case the defendant has not entered an appearance.

The claim is on the face of it a liquidated demand for money lent plus an alleged agreed rate of interest.

On the matter coming before the Registrar for judgment under Order XLVI r. 2 he asked if the agreement were verbal and was informed that it was. It was admitted that the plaintiffs held a receipt for the advance but the plaintiff's advocate refused to produce it or the memorandum of agreement which it was admitted was sent to the defendant confirming the advance. On this refusal the Registrar refused to enter judgment for the plaintiffs.

In my opinion the Registrar was within his powers in so acting and in puting the case before a Judge.

The defendant by omitting to enter an appenrance has virtuf!.lly abandoned any defence there might be. The claim is liquidated on the face of the plaint and I do not feel· inclined to go beyond that in an effort to discover whether or not the plaint sets out the full facts of the transaction. If there be a defence undisclosed in the proofs the defendant should have entered an appearance.

There will be judgment for the plaintiffs for Sh. 4,000 with interest at 6 per cent from the 13th January, 1928, to judgment and 6 per cent on the decree to payment.