Supreme Court
Action No. 1 of 1980
19th August, 1980.
Staine, J.

Mr. N.V. Dujon for the Plaintiff.
Mr. J.C. Gray for the Defendant.

Practice and Procedure - Application for leave to sign final judgment for amount indorsed on Writ pursuant to 015 R 1RSC - Meaning of 015 R 1RSC - Affidavits filed in support of Application defective - Persons before whom Affidavits should be sworn - RSC 039R4 - Requirement to refer to "matters of account" in Affidavit not to annex them to Affidavit - RSC 039 R23 and 24 - Power of Court to accept defective Affidavits - RSC 039 R14.

J U D G M E N T

In this case, the Plaintiff applies for leave to sign final judgment, for the amount indorsed on the Writ, with interest, if any, and costs.

The application is made pursuant to Order 15 Rule 1 of the Rules of the Supreme Court. This Rule is to the effect that where a Plaintiff issues a Writ, and the Writ is specially indorsed where the Defendant appears to the Writ, the Plaintiff may apply to the Court for leave to sign final judgment, stating that in his belief, there is no defence to the action. Such an application is required to be supported by an affidavit by some person, who can swear positively to the facts.

The practice in this matter is well settled, and follows the practice which obtains in England, under Order 14 of the old Rules of Court in that jurisdiction. There, it is stated, that the purpose of the rule, is to enable a plaintiff to obtain summary judgment without trial, if he can prove his claim clearly, and if the defendant is unable to set up a bona fide defence, or raise an issue which ought to be tried, see Roberts v. Plant (1895) 1 Q.B. 597 C.A. It follows that a plaintiff will not be deprived of his right to obtain leave under this rule, by a mere technicality. But if the defendant can show that he has a good defence to the action, or even one which raises a triable issue, then the Court will be slow to act, and leave to defend will most likely be given.

In this case, the Writ is endorsed with a Statement of Claim for a liquidated sum, namely $7,395.25, being the balance stated to be due on account. The Defendant entered Appearance, and filed his Defence in which the Defence consists of a denial of the debt, or any part thereof, and further counterclaims for the sum of $10,000, and Costs.

In his application to be at liberty to sign final judgment, the Plaintiff has filed an affidavit, stating that the Defendant is truly indebted to him in the sum stated, and his belief that there is no defence to the action. The Solicitor appearing for the Plaintiff has also filed an affidavit in support of the application, and attached to this affidavit are invoices and time sheets, setting out the matters of account. The time sheets bear a signature, said to be the signature of the Defendant.

At the hearing of this application, Counsel for the Defendant argued that the Court could not look at Affidavits as they were defective and were not properly before the Court. Specifically he referred to Order 39 Rule 4 and observed that the affidavit of the Plaintiff was sworn before a Justice of the Peace. Rule 4 of Order 39 requires Affidavits to be sworn before a Judge, the Registrar, or Commissioner of Oaths.

Turning to the Affidavit of Counsel for the Plaintiff, Mr. N.V. Dujon, the Defendant's Counsel submitted that the Affidavit disclosed no evidence. Counsel also referred to Rules 23 and 24 of Order 39, which provides that matters of accounts should be referred to in the Affidavit, should not be annexed to the Affidavit, but should be referred to as exhibits, and such exhibits should be marked and certified.

It is sufficient to say, that the Affidavit of Mr. Dujon violates against these rules. Firstly as submitted by Counsel for the Defence, the Affidavit itself discloses no evidence. Then secondly the invoices and time sheets are not referred to as exhibits in the case, but are attached and bear no certificate.

Mr. Dujon in rebuttal argued that the Affidavits were properly before the Court as well as the documents attached, since the Affidavit referred to the documents.

I would say that Mr. Gray's objections are well taken. The Affidavits are in every sense bad, not only in being sworn before a person not authorized by the Rules, but also because the vital and important matters of account are not properly referred, nor are they marked as exhibits nor certified. So that it is true to say that there is no evidence before the Court, to enable it to act.

But that does not dispose of the matter. Order 39 Rule 14 provides that the Court may receive any Affidavit sworn for the purpose of being used in the cause or matter notwithstanding any defect. The question therefore arises whether I can properly exercise that discretion, having regard to the nature of the defects.

I am of the opinion that I am precluded from so doing. Whilst the Affidavits of the Plaintiff could be received, there still remains the greater question of the documents of account, which are not referred to in the Affidavit, and are not marked nor is there a certificate on them. Further, it would not be possible to rectify these defects, even if the Court were minded so to order.

In the ultimate I am constrained to rule that the Affidavits are so defective and cannot be received.

It appears however that if proper Affidavits had been filed, the Application would have a good chance of success, since the Defendant has merely raised a technical objection, and not one of substance.

The Application for liberty to sign final judgment is therefore stood over, and liberty is given to the Plaintiff to file fresh Affidavits. The costs of these proceedings are to be borne by the Plaintiff.

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