Old East Africa Trading Company Limited v Jetha (Appeal No. 13 of 1956) [1950] EACA 264 (1 January 1950)

## ins and H. M. COURT OF APPEAL FOR EASTERN AFRICA Institutes

Before SIR NEWNHAM WORLEY (President), BRIGGS (Acting Vice-President) and BACON, Justice of Appeal

## THE OLD EAST AFRICA TRADING COMPANY LIMITED, Appellant (Original Defendant)

## AKBERALI KASSAM JETHA, Respondent (Original Plaintiff)

## Civil Appeal No. 13 of 1956

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

Procedure—Failure to extract order before appeal lodged—Appeal incompetent— Tanganyika Appeals to the Court of Appeal Ordinance (Cap. 23), sections $7(1)(c)$ , 8(1) and (2) and 9—Indian Limitation Act, section 12(2)—Eastern African Court of Appeal Rules, 1954, rule 58.

The appellants wished to appeal against a decree of the High Court dismissing an appeal from the District Court and under the provisions of the Appeals to the Court of Appeal Ordinance leave to appeal was necessary, and notice of intention to apply for leave to appeal had to be given within 30 days of the decision. Only the High Court could give leave or extend the time for giving notice of intention to apply for leave. The appellants made an application that the time for making an application for leave to appeal and the time for giving notice of intention to apply for leave should be extended. This application was refused. The appellants then filed, six weeks out of time, a notice of appeal under rule 54 together with a further application for (inter alia) leave to appeal. This application was also refused and the appellants asked for and obtained leave to appeal from both these orders. The memorandum of appeal made no reference to the first order and the appeal proceeded on the basis that it was against the second order only. The appellant's advocate had failed to extract the order before lodging the appeal, but did so subsequently and filed it by way of supplementary record.

Held (15-8-56).—As no order had been extracted at the time of lodging the appeal, there was nothing to appeal from. The appeal was incompetent and there was no jurisdiction to hear it.

Appeal dismissed.

Cases referred to: Aluminium Union Co. v. K. Narandas & Co., 4 E. A. C. A. 20;<br>Mohamedbhai v. Yusuf Abdul Ghani, 19 E. A. C. A. 38; Velji v. Hirji, 19 E. A. C. A. 184; Harnam Singh Bhogal v. Jadva Karsan, 20 E. A. C. A. 17.

O'Donovan and N. M. Patel for appellant.

Master and Hamlyn for respondent.

JUDGMENT (prepared by Briggs, Acting Vice-President).—This was an appeal by leave from an order of the High Court of Tanganyika. We dismissed the appeal with costs on a preliminary objection that the order had not been extracted when the appeal was lodged, and that in consequence there was nothing to appeal from, so that the appeal was incompetent and there was no jurisdiction to hear it. The appeal had certain unusual features and we think it desirable to give reasons for our order. On the general principle involved we refer to the Aluminium Union case, 4 E. A. C. A. 20, Mohamedbhai v. Yusuf Abdul Ghani, 19 E. A. C. A. 38, Velji v. Hirji, 19 E. A. C. A. 184, and other cases cited therein.

On 13th October, 1955, Lowe, J., gave judgment dismissing an appeal by the present appellants against a decree of the District Court of Dar es Salaam. The appellants were minded to appeal to this Court. The subsequent proceedings reflect no credit on their then legal adviser, who, we understand, has now left the country. By virtue of section $7(1)$ of the Appeals to the Court of Appeal Ordinance (Cap. 23) leave to appeal was necessary and by virtue of section $8(1)$ notice of intention to apply for leave to appeal had to be given within 30 days decision. $Only$ from the date $\quad\text{ of }\quad$ the the High Court could give leave to appeal, and only the High Court could, under section $8(2)$ , extend the time for giving notice of intention to apply for leave to appeal. On 25th November, 1955, application was made that the time for making an application for leave to appeal and the time for giving notice of intention to apply for leave to appeal should be extended and for a stay of execution. The only real excuse offered for being out of time was that a copy of the judgment had not been received till 22nd November. On 6th December Law, Ag. J., dismissed the application, relying on Harnam Singh Bhogal v. Jadva Karsan, 20 E. A. C. A. 17. We are not sure that this was the appropriate authority. It dealt with rather a special situation. In more recent cases we have held that the negligent error of an advocate may be good ground for enlarging time. The learned Judge said that "very substantial" reasons must be shown. We think this may be putting the matter too strictly. We prefer to say "sufficient cause".

On 13th December, 1955, the appellants returned to the attack. They filed, over six weeks out of time, notice of appeal under rule 54, and also filed a further application for leave to appeal and for a stay of execution. This application was founded on section 12 $(2)$ of the Indian Limitation Act and on a contention that by reason thereof the time for giving notice of intention to appeal had not expired. On 20th December, Law, Ag. J., said that this was a case in which he would ordinarily have given leave to appeal, but that the Limitation Act had no application to appeals from the appellate decrees of the High Court. He therefore held that, as he had previously decided, the appellants were out of time, and consequently leave to appeal could not be given. The appellants asked for, and were given, leave to appeal from the orders of 6th and 20th December.

They filed notice of appeal from both orders on 29th December. As regards the order of 6th December, this notice was itself out of time, and we see no reason to suppose that a single appeal can properly be brought against two orders made on different dates in the same proceedings. However, it is unnecessary to decide this point, since in the memorandum of appeal no reference is made to the order of 6th December and the appeal proceeded on the basis that it was against the order of 20th December only. It was therefore an appeal primarily against refusal to give leave to appeal under setion $7(1)(c)$ , and incidentally against refusal to give a stay under section 9, of the Appeals to the Court of Appeal Ordinance. We can ignore the latter point, but the former raises a delicate question.

The policy of the law is clearly that, save in cases where appeals to the Court of Appeal lie as of right under paragraphs (a) and (b) of section 7 (1), appeal from any decision shall lie only with leave of the High Court. No power is given to the Court of Appeal to give such leave if the High Court refuses it. If we were to entertain an appeal of the present kind and exercise our power to "make such order as the Court below ought to have made" by granting leave, it seems that we should in practice be extending the rights of appeal conferred by territorial statute. Without going so far as to say that we could not make such an order, we think it is clear that it would only be made with great hesitation and in most exceptional circumstances. It would certainly not be made merely because the High Court had exercised its discretion in a way which did not commend itself to us. In the present case any of us might, if sitting in first instance, have been willing to extend time and give leave to appeal on 6th December, but we should almost certainly not have been willing on appeal to reverse the decision then made. This question, however, was never before us. On this appeal we were asked to say that the order of 20th December was wrong, since it was based on a fallacious view that the appellants were out of time and leave to appeal would not have benefited them. Whatever the correct view may be on the application of section 12 of the Limitation Act to the Appeals to the Court of Appeal Ordinance (and we do not wish in any way to suggest that the learned Judge was wrong) there is the further point that, even if leave had been given, the intended appeal was hopelessly out of time under the East African Court of Appeal Rules. 1954, and the whole history of the case makes it extremely unlikely that time would be enlarged under them. So much for the potential merits of the appeal, as they appeared to us.

The penultimate error of the appellants' former advocate was to neglect the elementary step of extracting the order of 20th December before lodging his appeal. This Court has given warning after warning during the last few years against this plain breach of duty, which has repeatedly led to the dismissal in *limine* of potentially successful appeals. The notice of appeal was filed, as we have said, on 29th December, 1955. The record, certified as correct, but omitting the essential order, was filed on 15th February, 1956, and at the same time security for costs was given, the necessary fees were paid, and the appeal was duly entered and allotted its serial number. On 27th February the missing order was extracted and a copy was filed by way of supplementary record. The last error was committed at this stage, in that the order was wrongly drawn up. It should have embodied the learned Judge's grant of leave to appeal against the order, but did not do so.

The appellant's present advocates made a gallant effort of salvage. They sought to show that the omission of the order was in this case a mere procedural error, since on 27th February, the last day on which the record could properly be filed, the order was in existence and a record including it could have been filed. Indeed, they went further and contended that the appeal was not lodged before extraction of the order, since the record minus the order was not in truth a record for the purposes of rule 58, and it was only on 27th February that the whole and true record was filed. We reject this argument. If a party presents for filing what purports, and is certified, to be the record of appeal and at the same time takes the other steps requisite for lodging the appeal, he cannot be heard to say afterwards that he has not filed a record or that no appeal has been lodged. The appeal here was lodged when no order was in existence. The second line of argument was that under paragraph 7 (1) (c) the High Court can give leave to appeal from any "decision". The adjudication of 20th December was a "decision" and leave was given to appeal from that decision. This appeal is from that decision. The fact that it purports to be an appeal from an order is mere "terminological" inexactitude" for which the learned Judge, not the party, is responsible, since he headed his decision "Order". It was conceded that the word "order" in the Appeals to the Court of Appeal Ordinance has the same meaning as in the Civil Procedure Code, and refers to the "formal expression" of the Court's adjudica-<br>tion. It was agreed that the grounds of Law, Ag. J's., decision were in law a judgment, and not an order though so headed. We would say, first that, if any advocate desiring to appeal from an adjudication on which the decree or order would, if extracted, be appealable as of right, were to approach the High Court for leave to appeal against the adjudication as a "decision" so as to avoid extracting the order or decree, we hope that leave would be refused in such terms that he would be unlikely to make another such application. We cannot conceive that it could be proper to give leave in such a case. Equally we cannot think that it could be proper to grant leave to appeal against anything but a decree or order in any case where a decree or order could be drawn up. There may be cases where this could not be done, but we are unable to think of any. It is entirely incorrect to suggest that, when a Judge after delivering a judgment says "I give leave to appeal", he is giving leave to appeal against the judgment as such. He is giving leave to appeal against the decree or order in which the effect of his judgment will, in due course, be embodied. In this case application was made for "leave to appeal against this order" and the learned Judge said "Leave to appeal granted". He gave leave to appeal against an order, not against a judgment wrongly headed as an order. We concede that the High Court could have given leave to appeal against the judgment, but it did not do so, and we hope it never would do so in a case of this kind.

For these reasons we were of opinion that the appeal was wholly incompetent and that there was no jurisdiction to hear it. But if this had not been the case, if the errors had merely been procedural and capable of being amended or disregarded, we should not have been disposed to grant any indulgence in this case, either by allowing this appeal to proceed or, if leave were granted, by extending time for the substantative appeal. We think appeals of this type should be discouraged in any event, and we also think that the respondent has been so harassed by an unending stream of unnecessary proceedings that the time has come when costs cease to be a sufficient solatium.

Finally we would remark once more that, when an adjudication is pronounced, and there is even a possibility that leave will be required for an appeal against the decree or order to be based on it, it is the height of folly not to ask for leave then and there. How much money has been wasted because that was not done in this case we are unable even to guess.