Ottoman Bank v. Ghaui Civ. case 63-D-60: 25/3/71; Georges C. J.

 

 Ottoman Bank v. Ghaui Civ. case 63-D-60: 25/3/71; Georges C. J.

The plaintiff filed a plaint in 1960 against the defendant claiming a sum of Shs. 425, 174/17 due from the defendant as guarantor for credit facilities granted to H. Ghaui and Company Ltd., (the debtor company). In the alternative, plaintiff claimed that an account is taken of the sum due; an order for the payment of that sum is made: and in default of payment, the property charged as security is sold. A high Court judge made a preliminary decree for the taking of accounts. In June 1962 the Registrar rejected accounts filed by the Bank on the ground that they were not sufficient; that they did not show what was due in sufficient detail to allow the advocate for the defendant to challenge any items therein. In November 1970, the matter came again before the Acting Registrar. He decided that the accounts filed were not in proper form because they began with the sum claimed as due plus interest over the appropriate period and costs. This assumed that he amount claimed in the plaint was in fact due and this could not be the case as the preliminary decree was for the taking of accounts and not for the sum claimed as due. The plaintiff now challenges this finding in this application. Three issues were discussed: (a) whether the registrar had power to pass accounts; (b) whether the High Court had power to entertain the present application; (c) whether the ruling of the Registrar in 1962 had made the subject of the application res judicata.

Held: (1) “The power to take accounts is not given to the Registrar under Order XLIII Rule I. The Acting Registrar thought that taking of accounts could be said to be part of the process of execution and so could fit in under Order XLIII Rule I (i). With respect I do not agree. In this case the accounts could lead only to the passing of a final decree after which questions as to execution would arise. It would appear that in his official capacity the Registrar does not have power to take accounts.” “It is, however, always within the powers of the judge with the consent of the parties to refer to a third person the investigation and decision of any issue which can more appropriately thus be dealt with. It is true that the proceedings do not specifically show that the parties agreed to this reference of accounts to the Registrar. [But they did not object]. The attempt to resile now from theirs acquiescence is belated and I would hold that the Registrar as a person to whom the task of taking accounts was delegated by the judge without objection by the parties has by virtue of such delegation the right to carry out the delegated functions.” (2) “Where, as in this case, a Court delegated to an official the performance of any functions with respect to a suit it must clearly reserve to itself the right to ensure that these functions are properly and legally performed. The delegation of authority is not a divestment of authority. Control remains with the Court. The fact that

the order delegating authority makes no specific mention of the reservation of control is, in my view unimportant. The Registrar would be taking accounts on behalf of the Court and reporting his findings to the Court. If such findings are clearly erroneous on the facts or on the law it would be an extraordinary situation if the Court was unable to correct what had been done. Therefore the court is entitled to review the ruling made by the Registrar to satisfy itself of its correctness. (3) [Citing s. 9 of the Civil Procedure Code as to res judicata] “A prerequisite for the operation of the doctrine is that there should have been a former suit in which the issue allegedly res judicata has been decided. There has been no former suit in this case. There has been one suit in which a preliminary decree has been passed. The Court has ordered the taking of accounts. Difficulties have arisen in carrying out this order. It would seem to me that either party would be at liberty to return to the Court for rulings on the method of going about the performance of the task which the Court has delegated. So long as no final order has been passed the Court can given instructions as to the appropriate form of the account.” The ruling of the Registrar cannot in my view be the basis of re judicata as far as the form of the account is concerned. (4) “An account setting out the transactions between the plaintiff Bank and the debtor company in the normal course of Banking Business is an adequate account for presentation as the basis of the taking of the accounts. If the defendant challenges the accuracy of any deposit or withdrawal then this will have to be proved in the normal manner.” (5) Plaintiff Bank succeeds in its application.