Supreme Court
Action No. 437 of 1982
13th July, 1983
Moe, C.J.

Mr. J. Avilez for the Applicants/Defendants.
Mr. M. Sosa for the Respondent/Plaintiff.

Civil Practice and Procedure - Application for leave to appeal against the Order of a judge in chamber [Order XXVIII Rule 4 of the Supreme Court Rules] - Competency of the Supreme Court to strike out pleadings that discloses no reasonable cause of action and are frivolous or vexatious - Order XXIV Rule, 1 and 3 of the Supreme Court Rules - Defence defective - Offends the rules of pleading - Inherent jurisdiction of the Court to strike out pleadings that abuse its process even when the application is not made thereunder - Affidavit evidence admissible under inherent jurisdiction of the Court - Power of the Court of Appeal to interfere with Order of Judge if he was wrong or serious injustice would result.

JUDGMENT

The Plaintiff issued a Writ on which was specially endorsed his claim for $8,913.40 the balance due of the price of goods sold and delivered to the Defendants and particulars of the claim were set out. The Defendants delivered a Defence as follows: - "The Defendants deny owing to the Plaintiff the sum of $8,913.40 claimed or any sum at all." On application by the Plaintiff, the Judge in Chambers on the 29th March, 1983 made an order (1) that the Defence be struck out as disclosing no reasonable answer and as being frivolous and vexatious; (2) that the Plaintiff be at liberty to enter judgment; and (3) that the costs of the Action be borne by the Defendants. The Defendants gave notice of appeal to the Court of Appeal against that order which notice was however on the 23rd May, 1983 struck out as not being properly before the Court.

The Defendants now seek leave to appeal against the order of the Judge in Chambers. In support of their application, they referred to Affidavits which were before the Judge in Chambers. These showed that the Plaintiff imported from Guatemala goods to the value of $14,936.39 quetzales. That those quetzales convert to $29,872.78 Belize. By reference, those goods were sold to the Defendants and are the subject matter of the Action. The Affidavits go on to raise an issue that the goods ought to have been transferred to the Defendants at the price at which they were declared. The Defendants, therefore, contend that a contractual relationship has not come to the surface and that there is need to challenge the accounts of the Plaintiff. The Plaintiff on other hand submitted that the Judge in Chambers was correct in holding as he did that the prices mentioned in the Affidavits were of little relevance to the Defence. That no agreed price was pleaded by the Defendants and that in effect the only complaint raised by the Defendants was that the price was excessive.

By Order XXVIII Rule 4 Supreme Court Rules "the Court may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case, or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment may be entered accordingly, as may be just." The Judge was empowered under this wide provision to make the orders applied for by the Plaintiff and the Court of Appeal can and will interfere if it is satisfied that the Judge was wrong or serious injustice would result from not interfering. See Evans v Bartlam [1937] 2 A.E.R. 646.

I look to see if there are circumstances in which the Court of Appeal may determine or conclude that the power of the judge was wrongly exercised. Firstly, as to whether the Defence disclosed no reasonable answer, it is clear that the Defence offended the rules of pleading, see particularly Order XXIV Rules 1 and 3. The pleading simply denied liability of the sum claimed, but gave no facts showing the basis for the denial, e.g. that there was never a bargain between the parties or that the amount claimed has been paid or is not in accord with the bargain. The Judge would have been right in striking it out on this first ground. Secondly, as to whether it was frivolous and vexatious. By the terms of the rule this must appear from the pleading. The relevant words of the rule are "or in case of the --- defence being shown by the pleadings to be frivolous or vexatious." There does not appear to have been a specific application to the inherent jurisdiction of the Court, but that did not preclude the Judge from acting under that jurisdiction to determine whether the pleading was in any way an abuse of the process of the Court. In this event, Affidavits as to the facts may be used.

As I have shown above, the pleading by the Defendants was defective and the authorities show that a Court may demand further averment (a) if an amendment can improve the defective pleading, and (b) having considered the matter the plea is not one which must necessarily fail. What the Judge had before him in addition to the defective pleading were the Affidavits filed on behalf of the Defendants setting out as indicating above.

As I see it what the Defendants raised on the Affidavits (that is put before the Judge in support of their plea) were matters which could not have possibly entitled them to succeed. There was no denial of the contract, no denial that the price of the goods sold and delivered was as claimed on the Statement of Claim. No denial that payment has been only in the amount shown. Nothing was raised or put before the Judge which showed in any way why it was that the Defendants did not owe $8,913.40 the balance of the price of goods sold and delivered to them. As said above, what was raised was a submission as to what ought to have been the contract price. But the issue is what was the contract price. In effect what the Defendants were raising before the Judge could properly be held to be frivolous and vexatious.

How a matter should be dealt with in circumstances such as were before the Judge is adequately set out in Bullen & Leake Precedent of Pleadings 12th Edition at page 143:

"Where the statement of claim or defence as pleaded discloses no reasonable cause of action or defence because some material averment has been omitted, or because the pleading is defectively stated or formulated, the court while striking out the pleading will not dismiss the action or enter judgment, but will give the party leave to amend and if necessary to serve a fresh pleading to correct or cure the defects appearing in the original pleading. On the other hand, if the Court is satisfied that the pleading discloses no reasonable cause of action or defence, as the case may be, and that no amendment, however ingenious, will correct or cure the defect, the pleading will be struck out and the action dismissed or judgment entered accordingly."

I take the view that in this case the Judge was clearly right to order as he did and leave to appeal is accordingly refused.

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