Kubach & Saybook Ltd. v. Hasham Kassam & Sons Ltd., H.C. Civ. Case 3-A-72, 23/10/72.

 Kubach & Saybook Ltd. v. Hasham Kassam & Sons Ltd., H.C. Civ. Case 3-A-72, 23/10/72.

Held:   A court will not act upon an affidavit which does not distinguish between matters stated on information and belief, and matters deposed to from the deponent’s own knowledge, or as regards the former which does not set out the deponent’s means of knowledge or his grounds of belief.

BRAMBLE, J. – This is an application for leave to defend a suit under the Summary Procedure Rules. Order XXXV. Rule 3 (1) provides that: “the Court shall, upon application by the defendant, give leave to appear and defend the suit, upon affidavits which: a) disclose such facts as would make it incumbent on the holder to prove consideration, where the suit is on a bill of exchange or promissory note; or b) disclose such facts as the court may deem sufficient to support the application.” Order X1X, Rule 3 (1) reads as follows: - “Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted. Provided that the grounds of belief are stated.”

The substance of the affidavit in support of this application is contained in paragraphs 3 and 4 which are:-

“3. That the plaint in the above case does not disclose cause of action in that: - a) it does not state that the said Bill of Exchange was duly presented for payment: b) notice of dishonour of the said Bill of Exchange was given to the defendant;

c) the said Bill of Exchange has not been duly protested for non-payment; d) the Notary Public’s slip attached to the said Bill of Exchange is not proper and valid. 4. That the goods supplied by the plaintiff to the defendant when received by that defendant were not according to the goods agreed to be sold and the plaintiff is not entitled to get the suit amount as there is failure to consideration of the said Bill of Exchange Ex. “A”.” The last paragraph reads: - “That what is stated above is true to the best of my knowledge and belief.”

            According to the relevant rule a deposition must be made of facts within the deponent’s knowledge and facts such as he believed provided he set out the grounds of his belief. It has been submitted on the respondent’s behalf that the affidavit does not comply with the rule and that the court cannot act on it. In support reference was made to the leading case of Standard Goods Corporation Ltd. v. Harakchand Nather & Co. (1950) E.A.C.A 99, where it was held that: “It is well settled that where an affidavit is made on information it should not be acted upon by court unless the sources of information are specified.” It was found that the deponent in an affidavit stated facts but did no say which were from hi sown observation and which were from information. In Assahand & Sons v. E.A Records (1959) E.A. 360 E.A. 360 the court commented on an affidavit and said, “The affidavit of Mr. Campbell was deficient in three respects. First, it did not set out the deponent’s means of knowledge or his grounds or belief regarding g the matters stated on information and belief, and, secondly it did not distinguish between matters stated on information and belief and matters deposed to from the deponent’s knowledge.” It cited the Standard Goods Corporation case with approval and said that the court should not have acted upon an affidavit so drawn. These decisions follow the ruling of the Court of Appeal in England where in In re J. L. Young Manufacturing Co. (1900) 2 Ch. 753, it was laid down that an affidavit of information and belief not stating the source of information and belief is irregular.

            In these types of cases affidavits are often too loosely drawn and an opposing party has the right to object. Here, there is nothing to show what the grounds of his belief were. It is not such an affidavit on which I could act and the application for leave to appear and defend the suit is dismissed with costs