Mohamed v Makharran and Another (Civil Appeal No. 14 of 1956) [1950] EACA 260 (1 January 1950)

### H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Newnham Worley (President), Briggs (Acting Vice-President) and BACON, Justice of Appeal

## ABDALLAH MOHAMED, Appellant (Original Applicant)

# (1) AHMED BIN SALEM MAKHARRAN and (2) FATUMA BINTI SAID, Respondents (Original Respondents)

## Civil Appeal No. 14 of 1956

(Appeal from the decision of H. M. High Court of Tanganyika, Mahon, J.)

Procedure—Application for custody of infant made by way of originating<br>summons—Islamic law—Whether Court has jurisdiction—Effect of section 17 of Tanganyika Order in Council, 1920—Indian Civil Procedure Code and

Rules—Indian Guardian and Wards Act, 1890.

The appellant originally applied to the High Court by way of originating summons for the custody of his infant half-brother who was in the de facto guardianship and custody of the respondents. The appellant was, under Islamic law, the legal guardian of the infant and prima facie entitled to his custody, subject to the right of the High Court to make such orders as might be most beneficial to the infant.

The respondents resisted the application on three grounds—

- (a) that the order would not be in the infant's best interests; - (b) that the Islamic law did not apply to questions of guardianship of infants $\frac{1}{2}$ in Tanganvika: and - (c) that the proceedings were dehors the jurisdiction of the Court since an originating summons is unknown in the practice and procedure obtaining in Tanganyika.

On the hearing of the application it was held that Islamic law applied but that the Court had no jurisdiction and the application was dismissed.

Held (26-7-56).—(1) While the civil practice and procedure in Tanganyika is primarily governed by the Indian Civil Procedure Code and Rules, unless those are shown to be exhaustive English practice and procedure are to be followed where the Code and Rules do not extend, by virtue of section 17 of the Tanganyika Order in Council, 1920.

(2) Proceedings as to guardianship of infants are pre-eminently among those where an originating summons is the best and most suitable procedure.

Appeal allowed, summons remitted to the High Court for hearing on the merits.

Cases referred to: In re Keshavlal Punja Parbat Shah, 22 E. A. C. A. 381: Keshavlal v. Attorney-General, 22 E. A. C. A. 218; Mansion House Ltd. v. Wilkinson, 21 E. A. C. A. 98.

Master and Ali for appellant.

#### Sayani for respondents.

JUDGMENT (prepared by Briggs, Acting Vice-President).—This is an appeal from an order of the High Court of Tanganyika, which gave leave of appeal. It raises a question both important and somewhat difficult.

The appellant is an adult Arab Muslim residing, and presumably domiciled, in Tanganyika. His half-brother by the same father is an infant aged eight, and is now in the *de facto* guardianship and custody of the respondents, who are respectively his maternal uncle and maternal grandmother, and within the jurisdiction. All are Shafei Muslims. Under Islamic law the appellant is the legal guardian of the person and property of the infant, and is prima facie entitled to custody of his person and to manage his property. It is, however, conceded that these rights are not absolute, but are subject to the discretion of the High Court to make such orders as may be most beneficial to the infant, both as regards. his physical custody and the mangement of his property. This qualification results. from the right and duty of the Crown to protect the interests of infants, and inparticular to protect this infant against possibly oppressive results of a strict application of the rules of Muslim law.

The appellant applied to the High Court by way of originating summons for custody of the infant and for directions as to his maintenance. It is not necessary to describe in detail the form of the proceedings, but it is sufficient to say that they were substantially in the form which would have been appropriate in the High Court in England. The respondents were duly served and resisted the application on three main grounds. They contended, first, that the order would not be in the infant's best interests for reasons involving, *inter alia*, the character of the appellant. Secondly, they said that Islamic law did not apply to questions of guardianship of infants in Tanganyika. Thirdly, they said that the proceedings were dehors the jurisdiction of the Court, since an originating summons is unknown in the practice and procedure obtaining in Tanganyika.

At the hearing the learned Judge held that Islamic law was applicable. There is no appeal against this part of his decision, and it must be affirmed. We respectfully agree with his reasoning and conclusion on this issue. The learned Judge accepted the submissions of the respondents on their third point and dismissed the summons on the ground that he had no jurisdiction to hear it. He did not deal with the merits of the application. The appellant appealed to us on the questions of jurisdiction and form of the proceedings. We allowed the appeal. We ordered that that part of the decision of the High Court which held that Islamic law was applicable should be upheld, but that the order dismissing the application, on the ground that the procedure adopted was incorrect and that the Court had no jurisdiction to decide the summons, should be set aside. We also set aside the order as to costs in the High Court. We further ordered that the originating summons be remitted to the High Court to be heard and determined on the merits, and that the respondents should pay to the appellant his party and party costs of the appeal and also of the first hearing in the High Court. The remaining costs of the originating summons were reserved to the High Court on the further hearing, as also were all questions of the right of recourse of the parties to the infant's estate for costs payable by them either to other parties or to their own advocates, and whether in respect of the High Court proceedings or this appeal. We now give our reasons for that order.

Under the Indian Civil Procedure Code and Rules as in force in Tanganyika there is no such thing as an originating summons. Nor, indeed, is there such a thing as an interlocutory summons-in-chambers. Apart from suits instituted by plaint, it appears that in India the normal method of application to the Court is by petition, unless some special form of proceeding is authorized by special statute, or by the separate Rules of Court which apply to the High Courts in India but are not in force in Tanganyika. For example, under the Guardians and Wards Act, 1890, a proceeding of this kind would be brought by petition; but under section 141 of the Code that petition would be conducted as nearly as may be in the same manner as a suit. That is the whole effect of section 141. It does not provide that no proceedings other than suits instituted by plaint shall be brought in the High Court. On the other hand, it expressly contemplates that such other proceedings may be brought, and lays down the method of dealing with them after their institution. The Guardians and Wards Act is not, however. in force in Tanganyika and is not directly helpful. The respondents say that the proceedings should be by way of plaint. If this was ever done in India, it was at least found over 60 years ago to be so inconvenient that the legislature stepped in. It is not desirable that litigants in Tanganyika should be submitted to that inconvenience unless the legislature has said clearly that they must.

The appellant claims the right to use an originating summons under<br>section 17 of the Tanganyika Order in Council, 1920, which gives full civil jurisdiction to the High Court and sets out in sub-section (2) the manner in which that jurisdiction shall be exercised—first, in accordance with the Civil Procedure Code and other Indian Acts and the local statute law, next and subject thereto. in conformity with the common law, doctrines of equity and statutes of general application, and next "in conformity . . . with the powers vested in and according to the procedure and practice observed by and before Courts of Justice and Justices of the Peace in England according to their respective jurisdictions and authorities" at the date of the Order, i.e. 22nd July, 1920. The civil procedure and practice of the High Court is, therefore, primarily governed by the Indian Code and Rules, but, unless those are shown to be exhaustive, English procedure and practice are to be followed where the Code and Rules do not extend. The Code itself expressly warns against any suggestion that it is exhaustive (section 4) and the position here is clearly the same as in Kenya, where we have held in In re Keshavlal Punja Parbat Shah, Criminal Appeal No. 996 of 1954, and in Kesavlal v. Attorney-General, Civil Appeal No. 10 of 1955, that the corresponding Civil Procedure Ordinance and Rules are not exhaustive. See also Mansion House Ltd. v. Wilkinson, Civil Appeal No. 46 of 1953. The Code and Rules are, of course, exhaustive as regards the matters with which they expressly deal, but not as regards matters on which they are silent. Keshavlal's case dealt with prerogative writs on the civil side and the *Mansion House case* with proceedings instituted by originating motion. The only possible basis for these in Kenya was the English practice and procedure imported as adjective to the local Civil Procedure Ordinance and Rules by words in pari materia with those in the Tanganyika Order in Council which we have quoted. Section 26 of the Indian Code does not say that all civil proceedings shall be by way of plaint, but only that all suits shall be so instituted (no other method having been prescribed). It leaves entirely open the question of proceedings which are not suits. We are satisfied that, where the public convenience and the proper conduct of the High Court's work so require, the Court has jurisdiction to entertain proceedings in English form, and should do so. We think that proceedings as to guardianship of infants are preeminently among those where an originating summons is the best and most suitable procedure. This present case may not be a perfect example, for it is possible that issues of fact may arise which will require adjournment into Court and cross-examination of deponents on their affidavits; but that cannot affect the right to entertain the proceedings. We think it must have been reasoning similar to this which has led to the general use in Tanganyika for many years past of interlocutory summonses-in-chambers. They are necessary and the Code is silent about them, but they are authorized under the Order in Council. It seems that originating summonses co nomine are less common; but a register of "Miscellaneous Civil Cases" is maintained which shows that over 100 proceedings of different kinds other than suits were instituted in the High Court in Dar es Salaam in 1955. We are informed by the Registrar that most, though not all, of these were entitled "Chambers application" and were, in fact, originated by a summons in the form of an English originating summons. No doubt, some of them were brought under special statutory powers and procedure, but we observe among them such matters as an application for mandamus and an application for directions as to the administration of a deceased person's estate. It seems to us that such matters are in truth proceedings by way of originating summons, and that it would be preferable if the fact were recognized and the document itself so entitled. We have no doubt that an originating summons is, in suitable cases, not only a legitimate, but the correct, form of proceeding in the High Court of Tanganyika, and this was such a case. If this decision leads to a more general use of the originating summons as a cheap and convenient way of approaching the<br>High Court for certain kinds of relief, we think it will both benefit the public and facilitate the work of the Court.

It may be worth observing that, since an originating summons is not in Tanganyika a suit, it will not be possible to obtain a decree thereon, but only an order; but this need not detract from the general usefulness of the procedure.

The merits of this application will now fall to be considered, and we therefore avoid all comment on them.