Kiwege and Mgude Sisal Estates Ltd v Manilal Ambalal Nathwani (Civil Appeal No. 69 of 1952) [1952] EACA 160 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and Cox. C. J. (Tanganyika)

## KIWEGE AND MGUDE SISAL ESTATES, LTD., Appellants (Original Defendants)

v

MANILAL AMBALAL NATHWANI, Respondent (Original Plaintiff) Civil Appeal No. 69 of 1952

(Appeal from decision of H. M. High Court of Tanganyika—

## J. S. Abernethy, Ag. J.)

Practice—Civil Appeals—Failure to draw decree.

A preliminary objection by respondent's counsel that no decree had been drawn up was upheld.

Counsel for appellant argued that the Tanganyika Appeals to Court of Appeal Ordinance was not true law because it contains no recital that its provisions were approved by the Secretary of State for the Colonies.

Held (16-10-52).—(1) The Court of Appeal for Eastern Africa derives its jurisdiction to hear appeals from the municipal law of each constituent Territory. By Tanganyika Appeals to the Court of Appeal Ordinance (Cap. 23), section 7 (1) $(a)$ , an appeal in civil proceedings lies as of right against every decree. Dec is in section (2). Indian Civil Procedure Code.

(2) Under the Order in Council establishing the Court of Appeal for Eastern Africa and providing for its jurisdiction, such jurisdiction is governed by the law in force in the<br>constituent Territory whereby an appeal lies. The Tanganyika Appeals to the Court of Appeal Ordinance is an implementation of this provision and not a Ordinance varying or affecting the Order in Council.

Cases cited: Ribeiro v. Facko, (1936) A. C. 300, Harnam Singh Bhogal t/a Harnam<br>Singh & Co. v. Jadva Karsan, (E. A. C. A. Civ. App. 70/51) (1952) E. A. C. A., unreported.

O'Donovan for appellants.

Mandavia for respondent.

JUDGMENT.—In this appeal a preliminary objection has been taken by the learned counsel for the respondent. The appeal purports to be an appeal against a judgment of the High Court of Tanganyika, given in Tanganyika Civil Case No. 17 of 1951. No decree embodying the terms of that judgment has been drawn up. Mr. Mandavia, therefore, has submitted, on the authority of the judgment of this Court given in Civil Appeal No. 70 of 1951, that this appeal must be dismissed as the Court has no jurisdiction to entertain it. The objection taken is a valid one. This Court derives its jurisdiction to hear appeals from the municipal law of each constituent territory. Under section 7 (1) (a) of the Tanganyika Appeals to the Court of Appeal Ordinance (Cap. 23) of the Laws Tanganyika, an appeal in civil proceedings lies to this Court as a matter of right against every decree, including an *ex parte* or preliminary decree made by the High Court in a suit under the Indian Code of Civil Procedure, 1908, in the exercise of its original jurisdiction. The term "decree" is not defined by this Ordinance, but it is defined in section 2 (2) of the Indian Civil Procedure Code, and that definition must have application. The definition lays down that by "decree" is meant the formal expression of an adjudication. In the instant case the record before us contains no such formal expression, but only the Judge's reasons for his judgment.

As was referred to in the judgment of this Court above cited, their Lordships of the Privy Council in the case of Ribeiro v. Facko, (1936) A. C. 300, expressed the opinion that "they would have difficulty in affirming the contention of the respondents that the original judgment, not having been drawn up in the form of a decree within the definition contained in section 2 (4) of the Kenya Civil Procedure Ordinance, 1924, could be treated as a decree from which an appeal might competently have been taken". The definition there considered by their Lordships also defined the term "decree" as meaning the formal expression of an adjudication conclusively determining the rights of the parties. We note that in the case of the municipal law of Tanganyika there is provision embodied in section 7 (1) (c) that, with the leave of the High Court, an appeal can lie against every other decree, order, judgment, decision or finding of the High Court. It may therefore be that this Court might have jurisdiction to entertain an appeal against a judgment of the High Court not embodied in a decree if leave of the High Court had first been obtained, but since in the instant case such leave has never been sought, we make no decision on that matter in the present case.

Mr. O'Donovan has sought to save the day by a bold and ingenious submission that the Appeals to the Court of Appeal Ordinance is not true law at all because it contains no recital that its provisions were ever approved by the Secretary of State for the Colonies. His argument depends on the construction to be placed on the provisions of Article 13 (12) of the Tanganyika Order in Council, 1920, which lays down that an Ordinance varying or affecting any Order in Council relating to the Territory shall not come into force unless it has been previously approved by the Secretary of State, and that such approval shall be recited therein. We have no knowledge whether the Appeals to the Court of Appeal Ordinance was in fact approved by the Secretary of State before it came into force, but it is certain that the Ordinance, as now printed in the Laws of Tanganyika, 1947, does not contain a recital that such approval was given. We do not think, however, that a failure to include the recital would necessarily invalidate the Ordinance, if in fact such approval had previously been obtained, and if the matter rested here we should hesitate to assume that the Secretary of State's approval was not obtained. In our view, however, Mr. O'Donovan's point can be disposed of in another way. Under the Order in Council establishing this Court and providing for its jurisdiction, provision is made that our jurisdiction shall be governed by the law for the time being in force in each of the constituent Territories whereby an appeal lies to this Court. The Tanganyika Appeals to the Court of Appeal Ordinance, in our opinion, must be regarded as an implementation of this provision and not as an Ordinance varying or affecting the Order in Council. Our view is strengthened by the fact that the right of appeal in criminal cases tried in Tanganyika is conferred by the Criminal Procedure Code of that Territory.

As this preliminary objection must succeed, it is not necessary for us to consider the second objection taken by Mr. Mandavia, that the memorandum of appeal is defective in that it purports to be an appeal only by a director of the appellant company.

The appeal must be dismissed with costs.