O'dell v Thompson and Others (Civil Appeal No. 38 of 1954) [1955] EACA 177 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Vice-President), SIR KENNETH O'CONNOR, Chief Justice (Kenya) and SIR ENOCH JENKINS, Justice of Appeal

## IN THE MATTER OF AN ORIGINATING SUMMONS

AND

## IN THE MATTER OF THE TRUSTS OF THE WILL OF THE LATE HARRY EDWARD WATTS

VIOLET O'DELL, Appellant (Original Respondent)

$\mathbf{v}$ .

## (1) ALFRED WILSON THOMPSON, HARRY SMITH AND WILFRED HERBERT MERRITT, the Executors and Trustees of the late Harry Edward Watts (Original Applicants)

AND

(2) ERIC SIMMONS AND (3) WILLIAM JAMES SIMMONS, Residuary

Legatees under the aforesaid Will (added by Order of the Court dated 13th January, 1955), Respondents Civil Appeal No. 38 of 1954

(Appeal from the decision of H. M. Supreme Court of Kenya, Cram, Ag. J.)

Originating Summons—Service upon persons not added as parties in title of suit— Decree—Dates to insert in decrees—Order—Drawing up of formal Order— "Order"-Civil Procedure (Revised) Rules, Orders 20, rule 7, 36, rules 1, 5 and 7 and 42, rule 1 (1) $(o)$ .

An originating summons under Civil Procedure (Revised) Rules, Order 36, rules 1, 5 and 7, was filed by the executors and trustees of the will of Harry Edward Watts deceased, the respondent thereto being the present appellant, a legatee under the said will. The proceedings were intituled accordingly. Subsequently an order was made for service of the originating summons upon Eric Simmons and William James Simmons, the residuary legatees under the said will. They appeared by advocate, but were not added as parties in the title of the suit.

An objection *in limine*, that the appeal was incompetent was taken, on the ground that it was an appeal from an Order made on 10th March, 1954, and that on the date of filing the appeal, viz. 7th June, 1954, no formal Order had come into existence. The memorandum of appeal described it as an "appeal from the declaration dated 10th March, 1954".

The substantial question for determination by the trial Judge was whether the will should be construed as bequeathing to the appellant one or two legacies of $£1,000$ each.

At the conclusion of the argument, the trial Judge noted "ruling reserved" and on 10th March he delivered a reasoned judgment headed "Declaration" in which he construed the will as bequeathing one legacy only to the appellant. He made no order as to costs stating that he would hear the parties on that question.

On 31st August, 1954, the advocates for all parties submitted to the Registrar of the Supreme Court a joint letter setting out details of an agreement as to costs and on 20th September, 1954, the trial Judge ordered "Costs as agreed by the parties".

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If the "Declaration" were an "Order" it was not obligatory under the Civil Procedure Rules to include the amount of the costs in the formal order; secus if it were a decree.

On 21st September, 1954, the appellant's advocates sent to the executor's advocates a draft formal Order for approval and it was included in the court record without prejudice to the executors's objection to the competency of the appeal. A copy of the formal Order including the amounts agreed for costs between the parties as at the end of August, 1954, was signed by the trial Judge as at 10th March, 1954, but could not have come into existence before 20th September, 1954.

By Civil Procedure Ordinance section 66: "Unless otherwise expressly provided in this Ordinance, and subject to such provision as to the furnishing of security as may be prescribed, an appeal shall lie from the decrees or any part of decrees and from orders of the Supreme Court to the Court of Appeal for Eastern Africa".

If the "Declaration" were a "Decree" as defined in section 2 of the said Ordinance, the appeal was competent but if it resulted in an Order it was incompetent, no formal decree being in existence at the time of filing the appeal.

It was conceded by the respondents that the proceedings under the originating summons were a "suit", as defined in section 2 aforesaid, but it was contended (1) that the definitions of "decree" and "order" in that section are mutually exclusive (2) that even though an adjudication satisfies all other requirements of the definition of "Decree", yet, having regard to the exception $(a)$ in the definition its formal expression is an Order, if the Civil Procedure Ordinance or Rules provide for an appeal therefrom as from an Order (3) that Order 36, dealing with an originating summons contemplates the proceedings terminating in an Order and (4) that Order 42 rule $1(1)(0)$ expressly provides for an appeal as of right from an Order made on the hearing of an originating summons under Order 36.

The appellant conceded that no formal expression of the adjudication had been drawn up at the date of the filing of the memorandum of appeal, but contended that as a certified copy of the trial Judge's "Declaration" was annexed to the memorandum of appeal, it was a sufficient compliance with rule $6(2)$ East African Court of Appeal Rules, 1925 (in force at the material date).

The appellant suggested that Order 42, rule $1(1)(0)$ aforesaid was ultra vires the Civil Procedure Ordinance if it purported to enact that every adjudication on an originating summons must be deemed an "Order" and the rule should be construed as applying only to interlocutory orders or interim orders made on such summonses.

"Decree" is defined in section 2 of the said Ordinance as follows: "'Decree' means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint or writ and the determination of any question within section 34 or section 91, but shall not include (a) any adjudication from which an appeal lies as an appeal from an order; or (b) any order of dismissal for default: Provided that for the purposes of appeal the word 'decree' shall include judgment and a judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of such judgment may not have been drawn up or may not be capable of being drawn up". There follows an explanation in the Ordinance.

Order 20; rule 7(1) of the Civil Procedure (Revised) Rules provides: "A decree shall bear the date of the day on which it is signed."

Order 36 (1) of the said Rules provides that executors or administrators of $a$ . deceased person and others as in the said rule more particularly mentioned may take out as of course, an originating summons returnable before a Judge sitting in Chambers for such relief as therein provided, i.e. the determination of the questions therein set forth, e.g. $(a)$ Any questions affecting the rights or interests. of the person claiming to be the creditor, devisee, legatee, heir or *cestui que trust*.

Order 36 $(5)$ of the said Rules provides for the application for an originating summons by persons interested in deeds and wills, whilst section 7 of the said. Order provides for the form, preparation, filing and service of such summonses.

Order 42, rule 1 (1) (o) of the said Rules provides: "An appeal shall lie as. of right from the following orders under the provisions of section 75 of the Ordinance, namely (o) An order made upon the hearing of an originating summons under Order XXXVI."

Held (21-2-55).—(1) E. S. and W. J. S., the two persons on whom the summons was served, should have been added as parties in the title of the suit.

(2) It is more convenient that a decree should bear the date of adjudication of which it is the formal expression as well as the date on which it is extracted.

(3) An adjudication upon an originating summons under Order 36 of the Civil<br>Procedure Rules is an "Order" and not a "Decree" and if no formal Order thereof is drawn up an appeal against the same is incompetent.

(4) There is no justification for restricting the meaning of "Order" in Order 42, rule 1 (1) (0) of the aforesaid Rules to interlocutory orders or interim orders made upon an originating summons nor is the said rule ultra vires the Civil Procedure Ordinance.

Appeal incompetent and dismissed.

Cases referred to: Apollo Kalibala Sewava v. E. M. Kawalya Kagwa and others E. A. C. A. Civ. App. No. 30 of 1954; Alamanzane Sebuliba v. Abdul S. Jaffer E. A. C. A. Civ. App. No. 25 of 1953; Mohamedbhai & Co. Ltd. v. Yusuf Abdul Ghani 19 E. A. C. A.<br>38; Mansion House Ltd. v. Wilkinson 21 E. A. C. A. 98; Saint Benoist Plantations Ltd. v. Felix 21 E. A. C. A. 105.

Lean for appellant.

$\mathbf{1}$

Mackie-Robertson for first respondents.

Harris for second and third respondents.

JUDGMENT (read by Worley, Vice-President).—The proceedings out of which this appeal arose were begun in the Supreme Court of Kenya by the filing of an originating summons under the Civil Procedure (Revised) Rules, 1948, O. XXXVI rr. 1, 5 and 7. The applicants were the executors and trustees of the will of $\frac{1}{2}$ Harry Edward Watts deceased; the respondent (the present appellant, Mrs. Odell) is a legatee under that will, and the summons was intituled accordingly. The substantial question for determination was whether the will should be construed as bequeathing to the present appellant one or two legacies of £1,000 each. Subsequently an order was made for service upon the two residuary legatees, Eric Simmons and William James Simmons, and in due course they appeared by advocate and were heard in argument on the merits. They were also awarded costs out of the estate. They were not, however, added as parties in the title of the suit and we have been informed by counsel that the learned Judge of the Supreme Court considered it unnecessary to do so. With respect, we think he was in error in this. The confusion which may ensue from not formally putting on the record parties who are joined in the proceedings is illustrated by the Uganda case of Apollo Kalibala Sewava v. E. M. Kawalya Kagwa and others: (E. A. C. A. Civil Appeal No. 30 of 1954) (unreported).

In the instant case the appeal was brought as between Mrs. Odell as appellant and the executors and trustees as respondents, but when it came on for hearing the residuary legatees were represented by Mr. L. G. E. Harris of Messrs. Hamilton, Harrison & Mathews who had been served with notice of the appeal. We were therefore able, the advocates for the appellant and respondents not objecting, to order that the two residuary legatees be added as respondents to the appeal and the rubric amended accordingly.

We also gave leave to Mr. Lean, advocate for the appellant, to amend the memorandum of appeal by adding a second ground as follows: -

"That the learned trial Judge erred in not holding that the will of the testator showed a clear intention on the part of the said testator to bequeath to Mrs. Odell two legacies each of £1,000."

Mr. Mackie-Robertson, for the first respondents, the executors and trustees, then took an objection in limine that the appeal was incompetent in that it was an appeal from an order made on 10th March, 1954, and that on the date of filing, namely, 7th June, 1954, no formal order had come into existence. Mr. Harris, for the second and third respondents, associated himself with Mr. Mackie-Robertson's objection, and at the conclusion of the argument we reserved consideration. We have now come to the conclusion that the objection succeeds and the appeal must accordingly be dismissed.

The learned Judge in the Supreme Court at the conclusion of the argument before him noted "ruling reserved", and on 10th March he delivered a reasoned judgment which he headed "Declaration", and in which he construed the will as bequeathing one legacy only to Mrs. Odell. He made no order as to costs, but stated that he would hear the parties on that question. According to the affidavit of Mr. Mackie-Robertson filed in support of his objection and to the original record of proceedings the learned Judge did, on the same day and presumably after hearing the advocates, make some orders as to costs to be taxed but reserved others. On 18th March the executors' advocates suggested to Mrs. Odell's advocates an agreement on costs without the necessity of going to taxation; but, in spite of a number of reminders, the latter advocates did not accept this offer until August, 1954, when agreement on the amount of costs was reached. At about the same time the quantum of costs for advocates of the other parties was agreed, and on 31st August, 1954, the advocates for all parties submitted to the Registrar of the Supreme Court a joint letter setting out the details of this agreement. On 20th September the learned Judge, on reading this consent letter, ordered as follows: "Costs as agreed by the parties." Meantime, on 7th June, 1954, the present appeal had been filed, the memorandum describing it as an "appeal from the declaration dated 10th March, 1954", and to it was attached a certified copy of the reasoned judgment read by the learned Judge on 10th March. We may note here that, though nomenclature is not conclusive of the matter, an appeal to this Court under the provisions of section 66 of the Civil Procedure Ordinance lies only "from the decrees or any part of decrees or from the orders of the Supreme Court". Had the appellant's advocates directed their minds to the advisability, if not indeed the necessity, of deciding whether the adjudication sought to be appealed from was a "decree" or an "order" the present position might never have arisen. We may observe too, at this juncture, that if the adjudication were an "order", it was not obligatory under the Civil Procedure Rules to include the amount of the costs in the formal expression of that order: secus, if it were a decree.

But to continue with the narrative: on 13th September, 1954, the executors' advocates warned the appellant's advocates that as no formal order had been extracted in the Supreme Court it would appear that the appeal did not lie, and 1

,

that they were instructed to take this point by way of preliminary objection. No direct reply to that letter was received, but on 21st September the appellant's advocates sent to the executors' advocates a draft formal order for approval. The latter advocates agreed to the inclusion in the record of the approved draft but without prejudice to their objection to the competency of the appeal. A copy of the formal order as drawn and approved therefore appears at page 16 of the record. It includes the orders as to payment of costs and sets out the amounts agreed for costs between the parties at the end of August, 1954. It is signed by the learned Judge of the Supreme Court as of 10th March, 1954, but it is conceded by Mr. Lean that it could not have been drawn up before 20th September, 1954. (In passing we would refer to Kenya O. XX $\tau$ . 7, which requires a decree to bear the date of the day on which it is signed.) We were informed that this rule is more honoured in the breach than in the observance, and it certainly seems to us more convenient that a decree should bear the date of the adjudication of which it is the formal expression, as well as the date on which it was extracted: see E. A. C. A. Civil Appeal No. 25 of 1953, Alamanzane Sebuliba v. Abdul S. Jaffer (unreported).

The position then is shortly this: $-$

If the adjudication on the originating summons resulted in a "decree" as defined in section 2 of the Civil Procedure Ordinance, then the appeal is competent, having regard to the proviso that for the purposes of appeal the word "decree" shall include judgment. On the other hand, if the adjudication resulted in an "order" then the appeal is incompetent because no formal decree was in existence at the time of filing the memorandum: see Mohamedbhai & Co. Ltd. v. Yusuf Abdul Ghani (1952) 19 E. A. C. A. 38. Mr. Mackie-Robertson conceded that having regard to the decision of this Court in Mansion House Ltd. v. Wilkinson 21 E. A. C. A. 98, the proceedings under the originating summons were a "suit" as defined in section 2 of the Civil Procedure Ordinance, but he contended—

(a) that the definitions of "decree" and "order" in that section are mutually exclusive;

(b) that even though an adjudication satisfies all the other requirements of the definition of "decree", yet, having regard to exception $(a)$ in the definition, its formal expression is to be deemed an order if the Civil Procedure Ordinance or Rules provides for an appeal therefrom as from an order;

(c) that O. $XXXVI$ , which deals with originating summonses, contemplates the proceedings terminating in an order: see especially rule 2 and rule $10;$

(d) that O. XLII, rule $1(1)(0)$ expressly provides for an appeal as of right from "an order made upon the hearing of an originating summons under O. XXXVI."

Mr. Lean for the appellant conceded that no formal expression of the adjudication had been drawn up at the date of filing the memorandum of appeal. A certified copy of the trial Judge's "declaration" was annexed to the memorandum and this, he contended, was a sufficient compliance with rule 6 (2) of the Eastern African Court of Appeal Rules, 1925, which were still in force at the material date. He referred to a dictum in the judgment of Briggs, J. A. (with which the other members of the Court concurred) in the Mansion House case to the effect that the words in paragraph $(a)$ of the definition of decree "any adjudication from which an appeal lies as an appeal from an order" are now in Kenya no more than an elaborate periphrasis for the words "any order". It is true that, for the reason given in that judgment, the scope of the exception has been greatly extended, but that is no valid argument for not giving effect to the exception in a proper case.

The plain fact is that O. XLII r. 1 (1) ( $\alpha$ ) does provide that any appeal from an adjudication on an originating summons under Order XXXVI shall lie as of right as an appeal from an order, and it is impossible for this Court to go behind that. Were it possible to consider the matter apart from this rule, we might have been disposed to regard the adjudication in this case as a decree: frequently an adjudication on an originating summons does determine the rights of the parties so far as concerns the court of first instance, and the matters so disposed of may be of great importance. It seems illogical that such an adjudication should be classed as an "order" and not as a "decree", but the explanation is probably historical: whereas some part of the Civil Procedure Ordinance and Rules are derived from Indian legislation, O. XXXVI seems to have been taken from the Rules of Supreme Court in England, where the rigid distinction between decrees and orders so characteristic of Indian procedure is not observed. No corresponding procedure by way of originating summons has been prescribed in India.

Mr. Lean also suggested that O. XLII r. 1 (1) ( $o$ ) was ultra vires the Civil Procedure Ordinance if it purported to enact that every adjudication on an originating summons must be deemed to be an "order" and, therefore, the rule should be construed as applying only to interlocutory orders or interim orders made on such a summons. We think, however, that there is no justification for so restricting the meaning of the word "order" in O. XLII r. 1 (1) (o). Nor is there any substance in the suggestion that the rule is *ultra vires*; the Ordinance itself in the definition of "decree" provides an exception for orders for which an appeal is prescribed by rule "as from an order". Moreover, section 75 (1) $(h)$ expressly contemplates the making of rules regulating the right of appeal from orders made either by the Supreme Court or by a subordinate court.

For these reasons, we hold that the appeal in this instance is incompetent and must be dismissed with costs.