Abdul Malik Ishak J:

[1] A preliminary objection is raised by Azad Basher Abdul Karem Bashir, the learned Counsel for the second defendant, to the effect that proceedings in which an alternative allegation of fraud is involved must be begun by writ and not by way of originating summons. Mr Sowaran Singh, the learned Counsel for the plaintiff, argues to the contrary and he says that the procedure is perfectly in order and is not fatal to the continuance of the action.

[2]Order 5 r 2(b) of the Rules of the High 1980 ('RHC') provides (the relevant part material to this judgment) that proceedings in which a claim made by the plaintiff is based on an allegation of fraud must be begun by writ. In Re 462 Green Lane, Ilford Gooding v. Borland [1971] 1 All ER 315, Ungoed-Thomas J had to deal with two pleas, first, of non est factum and, secondly, of fraud which proceeded by way of originating summons. The issue before his Lordship was whether proceedings involving alternative allegation of fraud should essentially be begun by writ or whether it may continue as though commenced by writ. This was what his Lordship said at p 317 after referring to the case of Re Engall's Agreement [1953