Chogley v Bains (Civil Appeal No. 57 of 1952) [1955] EACA 62 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir BARCLAY NIHILL (President), Sir Newnham Worley (Vice-President) and BRIGGS, Justice of Appeal.

# ISMAIL MOHAMED CHOGLEY, Appellant (Original Appellant/Tenant)

# JAGAT SINGH BAINS, Respondent (Original Respondent/Landlord)

### Civil Appeal No. 57 of 1952

(Application for final leave to appeal to Privy Council from decision of Court of Appeal for Eastern Africa upholding decision of H. M. Supreme Court of Kenya, Paget Bourke, J.)

Appeal-Appeal to Privy Council-Conditional and final leave to appeal-Conditions-Procedure-East African (Appeal to Privy Council) Order in Council, 1951, section 5 $(b)$ and 6:

The appellant who had obtained conditional leave to appeal to the Privy Council sought final leave so to appeal. The respondent opposed the application on the ground that there had been undue delay in the preparation of the record and that the appellant had, thus, not compiled with the order of the court granting him conditional leave, which order had not been drawn up, it not having been the practice to extract a formal order for conditional leave.

It had been a condition of the conditional leave to appeal that the appellant should, within 60 days of the order take all necessary steps "for the purpose of procuring the preparation of the record for the dispatch thereof to England".

The conditional leave had been given on 20th July, 1953, the record was settled on 10th September, 1953, the Registrar's certificate was given on 4th February, 1954, and the instant application was filed on or about 15th February, 1954, so that, prima facie, there had been delay in the preparation of the record and a failure to comply with the conditions of the order, but the appellant had, from time to time, pressed the Registrar, and had made regular inquiries as to the progress of the preparation of the record.

It had been the practice for an appellant who had obtained leave to appeal, to apply to the Registrar to prepare the record, and the appellanf contended that the wording of section 5 (b) of the East African (Appeal to Privy Council) Order in Council, 1951, contemplates the preparation of the record by the Registrar.

Section 5 (b) reads: "Leave to appeal under section 3 of this Order shall, in the first instance, be granted by the court only— $(b)$ upon such other conditions (if any) as to the time or times within which the appellant shall take the necessary steps for the purposes of procuring the preparation of the record and the dispatch thereof to England as the court, having regard to all the circumstances of the case, may think it reasonable to impose."

Section 6 of the same Order provides: "A single Judge of the court shall have power and jurisdiction— $(a)$ to hear and determine any application to the court for leave to appeal under paragraph $(a)$ of section 3 of this Order: and (b) generally, in respect of any appeal pending before His Majesty in Council, to make such other order and to give such other directions as he shall consider the interests of justice or the circumstances of the case require: provided that any Order, directions or decision made or given in pursuance of the powers conferred by this section may be varied, discharged or reversed by the court."

Held (9-4-54).-(1) The Court of Appeal will not consider giving final leave to appeal to the Privy Council unless the order giving conditional leave to do so is before it and will<br>hold the applicant strictly to the conditions laid down therein.

2) It is the duty of an applicant who has obtained conditional leave to appeal to the Privy Council to apply to the Registrar of the Court of Appeal for the settlement of the record and upon such settlement, either to arrange with the Registrar for the<br>preparation of the record within the time limited by the order or to prepare it himself and to submit it to the Registrar within such period as will allow adequate time for and to submit the origination making size as the answer between the preparation and verification, section 5 (b) of the aforementioned Order contemplating the preparation of the record either by the applicant or the Regist of the intending appellant to ensure that the record is actually ready for dispatch to London within the time limited, the Registrar's certificate not issuing until this is the case. If it appears certain or probable that the work cannot be completed in time, it is the duty of the applicant to apply to a single Judge of the Court of Appeal for an extension of time. The time for the preparation of the record will not ordinarily be extended unless the applicant can show that he has acted with real diligence.

(3) It will be the practice of the Court of Appeal to include in the order giving conditional leave to appeal, a requirement that the application for final leave shall be filed within 14 days of the expiration of the time limited for preparation. The application will be laid before a single Judge for hearing and determination, it being within his discretion to adjourn the matter for consideration by the court if the application is contested. When final leave is given the order will limit a time for the dispatch of the record.

Application for final leave to appeal granted.

Cases referred to: Ngara Hotel Ltd. and others v. Kassam Suleman Damji E. A. C. A. Civ. App. 23 of 1948; Harnam Singh v. Jamal Pirbhai E. A. C. A. Civ. App. 24 of 1948.

### Khanna for appellant.

Nazareth for respondent.

JUDGMENT (read by Nihill, President).—This is an application for final leave to appeal to the Privy Council. It is supported by an affidavit of Mr. Khanna the advocate for the applicant and by the certificate of the Registrar of this. court drawn in the usual form and certifying (1) that the applicant has taken all necessary steps for the purpose of procuring the preparation of the record for dispatch to the Privy Council; (2) that the requisite security has been given by the applicant within the prescribed time; (3) that all the conditions imposed upon the applicant have been fulfilled within the prescribed time.

Mr. Nazareth for the respondent has opposed the application on the ground that there has been undue delay in the preparation of the record and that the applicant has accordingly not complied with the conditions laid down in the<br>order of this Court granting conditional leave. That order has never been drawn up and we have only consented to hear this application on Mr. Khanna undertaking to have that order drawn up without further delay. We have granted this indulgence because we have been told that in the past it has not been the practice to extract a formal order for conditional leave. That practice, if it exists, will be discontinued. In future the court will not consider giving final leave unless the order giving conditional leave is before it. It appears, however, from the judgment of this Court on the application for conditional leave that the conditions prescribed were that the applicant should file the requisite security within 60 days of the order and that he should within three months from the date thereof take all necessary steps "for the purpose of procuring the preparation of the record for the dispatch thereof to England". That leave was given by this Court on 20th July, 1953. The security was duly furnished on 11th August, 1953, and on 10th September, 1953, the Registrar settled the record with the parties. The Registrar's certificate was given an 4th February, 1954, and this application was filed on or about 15th February, 1954. Prima facie, therefore, it would seem that there has been delay in the preparation of the record and a failure to comply with the conditions of the order, and that paragraph 3 of the Registrar's certificate is incorrect.

Mr. Khanna, however, answers this by praying in aid what he alleges has been the regular practice of this Court, namely, that on the applicant obtaining conditional leave all that is required of him, apart from furnishing the security within the prescribed time, is to apply to the Registrar to prepare the record. He contends that the wording of section 5 (b) of the East African (Appeal to Privy Council) Order in Council, 1951, namely, that the appellant shall take the necessary steps for the purpose of procuring the preparation of the record, contemplates that someone other than the appellant, namely the Registrar of the Court, shall do the actual preparation of the record and that it is not permissible for the appellant to prepare it himself. Accordingly he says all that it is necessary for the appellant to do is to request an appointment with the Registrar for the purpose of settling the record and when that has been done to request the Registrar to undertake the preparation of it himself and be ready to pay any necessary fees when demanded. Thereafter, he says, all that can be reasonably expected of the appellant is that he should from time to time prod the Registrar's memory and urge him to complete the preparation. He admits, however, that it is nonsensical to give the appellant three months in which to approach the Registrar for a settlement of the record and to request him to commence the preparation, but he says that it has always been the practice not to ask for the appointment to settle the record until the security has been actually lodged. Since the appellant may be given up to 90 days to lodge his security, this practice is obviously conducive of a great waste of time.

So far as Mr. Khanna's argument is based upon the practice of this Court it seems to be supported by two cases to which we have been referred, namely, Civil Appeal No. 23 of 1948, Ngara Hotel Ltd. v. K. S. Damji, and Civil Appeal No. 24 of 1948, Harnam Singh v. Jamal Pirbhai. In the former case, conditional leave to appeal was given on 13th April, 1949, the security to be lodged within three months and the appellant to take the necessary steps within three months for procuring the preparation and dispatch of the record to England. On 29th October, 1949, the respondents to that appeal filed an application under section 11 of the Order in Council to have the conditional leave rescinded for want of due diligence. Before this application was heard the applicant on 2nd December, 1949, filed an application for final leave to appeal, the Registrar's certificate having been issued on 25th November, 1949. Both applications were heard together on 2nd February, 1950, when the court held that there was no evidence of sufficient lack of diligence to justify them in rescinding the conditional leave and gave final leave. In the latter case conditional leave was given on 14th March, 1949, the security to be lodged and the necessary steps to be taken both within three months from the date of the order. The Registrar's certificate was issued on 15th November, 1949, and application for final leave filed on or about the 17th of that month. On 12th January, 1950, the court granted final leave overruling Mr. Nazareth's objection that there had been undue delay, the court considering that this was "immaterial".

There is in the present case evidence before us on the affidavits that Mr. Khanna has from time to time pressed the Registrar and made regular inquiries as to the progress of the preparation of the record, and it seems probable that this has been delayed owing to pressure of work in the Registry attributable in great part to the present Emergency conditions. We have come to the conclusion therefore in the present case, having regard to the previous practice of this Court and to the circumstances, that we should not be justified in holding the present applicant to blame for the delay which has occurred in the presentation of this application.

We do not, however, regard the present practice as either satisfactory or correct, and we give clear warning that in future applications of this nature we shall hold the applicant strictly to the conditions laid down in the order for conditional leave to appeal.

We do not agree with Mr. Khanna's interpretation of the words of section 5 (b) of the Order in Council. In our view the paragraph is so drafted as to $\frac{1}{2}$ contemplate the preparation of the record either by the appellant himself or by the Registrar: nor do we see any sufficient reason for the practice, if such there be, of the applicant waiting until after he has lodged the security before he applies to the Registrar for an appointment to settle the record. That merely means that a period of anything up to 90 days may be wasted before any effective step is taken. In future we shall consider it the duty of an applicant who has obtained conditional leave to apply as soon as practicable to the Registrar for settlement of the record and upon such settlement it will be the duty of the applicant either to arrange with the Registrar for the preparation of the record within the time limited by the order, or, failing that, to prepare the necessary documents himself and to submit them to the Registrar within such period as will allow adequate time for examination and verification. We emphasize that it is the duty of the intending appellant to ensure that the record is actually ready for dispatch to London within the time limited, and the Registrar's certificate will not issue until that is the case. If for any reason it appears certain or even probable that this work cannot be completed within the time limited it will be the duty of the applicant to apply to a single Judge of this court under section $6$ (b) of the Order in Council for an extension of time, and in future the court will not accept certificates from the Registrar certifying that the conditions imposed upon the applicant have been fulfilled within the prescribed time unless that is in accordance with the facts, the prescribed time in such case meaning either the time limited in the original order giving conditional leave or such extended time as may have been granted by the court.

We think it well to add that time for preparation of the record will not ordinarily be extended unless the applicant can show that he has acted with real diligence. In many appeals to the Privy Council the appellant may have reason to desire delay: we wish it to be known that this Court will do nothing to encourage such an attitude.

In future, it will be the practice of this Court to include in the order giving conditional leave a requirement that the application for final leave shall be filed within 14 days of the expiration of the time limited for the preparation. Such applications will be laid before a single Judge of the court under section $6$ (b) of the Order in Council for hearing and determination. If the application is contested, it will be in the discretion of the Judge to adjourn the matter for consideration by a full court.

When final leave is given, the order will limit a time for dispatching the record.

In the present case therefore we grant the application for final leave to appeal and direct that the record be dispatched to England within 14 days of this order. The costs of this application will be costs in the cause. It will be the duty of the applicant-appellant to draw up this order and submit it to the Registrar for approval and for final inclusion in the record.