The Court of Civil Appeal (CCA) delivered an interesting judgment on the adequacy of affidavit evidence when making a bankruptcy order. The CCA, acting solely on the basis of affidavit evidence, upheld an order of the Bankruptcy Court adjudging the appellant (Mr Balgobin) bankrupt pursuant to Section 8 of the Insolvency Act.
The issues raised on appeal by the Appellant and which the CCA had to determine on were:
- Whether the trial judge could act solely on the affidavit evidence of the petitioner to adjudge the appellant bankrupt without hearing further evidence under oath in support of the petition; and
- Whether the trial Judge was wrong in relying on the "Statement of Liabilities" in order to find the debt proved.
On the first issue, the CCA held that the Judge could decide the case only on the basis of the evidence placed before her and the only evidence before her was the sworn affidavit evidence of the bank, inclusive of a "Statement of Liabilities". This evidence was not challenged in Court due to the appellant's absence at the hearing. Since all the requirements for the issue of the bankruptcy order had been met, the affidavit evidence was sufficient for the Judge to provide its determination without any need to hear evidence under oath.
With regards to the second issue, the rationale of the CCA was that, at no time, the debt was challenged nor any counterclaim presented to the Court. On the requirement for the debt to be a "somme certaine" at the time of adjudication, the CCA concluded that the terms for repayment were quantifiable and undisputed, the more so that there was an acknowledgement of the debt by the Appellant which the latter chose neither to deny nor to challenge.
The appeal was consequently dismissed.
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