Old East African Trading Co. Ltd v Vellani and Company (C.A. 10/1936.) [1936] EACA 92 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenva): DALTON, C. J. and HEARNE, J. (both of Tanganvika).

## THE OLD EAST AFRICAN TRADING CO., LTD. Appellant (Original Respondent and Defendant) $\mathbf{a}$

## A. S. VELLANI trading as A. A. VELLANI & COMPANY. Respondents (Original Appellants and Plaintiffs). $C. A. 10/1936.$

- Appeal—Certificate of leave to appeal—Time within which memorandum of appeal is to be presented when certificate of leave to appeal is required. - Held (5-11-36).—That, where a certificate of leave to appeal is required the time taken in obtaining such leave cannot be deducted under rule 8 of the East African Court of Appeal Rules, 1925, from the period of three months within which the Memorandum of Appeal shall be presented.

The facts appear from the judgment.

Atkinson for the Appellant.

W. Vellani for the Respondents.

JUDGMENT (delivered by DATTON, C. J.).—The applicant the original defendant in the action applies for leave to appeal out of time from a judgment of the High Court sitting in appeal from a subordinate court on the grounds set out in the affidavit filed. There is an aletrnative application for an order that the Memorandum of Appeal was duly filed within time and should not have been returned to the applicant but on that point it is sufficient to say that the memorandum was clearly not filed within time.

The judgment appealed from was delivered against the applicant on December 9th, 1935. It was necessary, if he wished to appeal, for him to obtain leave to do so. He filed his application for leave to appeal on January 11th, 1936, and it was granted on February 28th. Where leave to appeal is required, the time taken in obtaining that leave cannot be deducted under Rule 8 of the East African Court of Appeal Rules, 1925, from the period of three months within which the memorandum of appeal shall be $presented.$

In this case the memorandum of appeal was not presented to the Deputy Registrar of the Court of Appeal until June 4th. 1936. It was returned by him on the ground that a special application for leave to appeal was necessary.

The grounds set out in the affidavit of applicant's advocate in support of the application are that the memorandum of appeal was prepared ready for filing on March 3rd on which date the advocate of the applicant applied to the Registrar for a certified copy of the decree for filing therewith. There is no real explanation as to why he delayed so long in taking that step. Even, however, when he took the step, it must have been known to him that no decree had been drawn up at that date, for on March 12th the Registrar informed him that the respondents' bill of costs had not been taxed. Under the provisions of O. 20. r. 6 $(2)$ it is required that the decree shall state the amount of costs incurred in the suit. If the opposite party entitled to costs. had refused or neglected to bring in his costs for taxation, the applicant could have moved the Taxing Officer under r. 49 of the Advocates' Remuneration and Taxation of Costs Rules, 1921, to certify the costs of that other party. It was certainly no part of the duty of the Taxing Officer to move in the matter of his own motion.

Eventually the decree was approved of by the parties and signed in May, being received back from Tanga on June 2nd and a certified copy was issued on June 3rd.

The affidavit, apart from its scanty nature, is misleading for it states that the delay in the issue of the decree was not the fault of the deponent, but would seem to suggest that the fault lay with whoever was responsible for the delay in the issue of the copy of the decree from the Registry.

No sufficient explanation however has been given for the delay in applying for the certified copy of the decree until six days before the three months for presenting the memorandum of appeal elapsed, and no explanation has been advanced why such an application was made at all, when the deponent must have known he was applying for a certified copy of a document which was not in existence at that date. The facts would lead one to the conclusion that the applicant has failed in the duty referred to in the judgment of the Privy Council in Ribeiro v. Siqueira (3 E. A. C. A. p. 1). There it was laid down that it is the duty of a party who wishes to appeal from a judgment to apply to have it drawn up in the form of a decree so that he may be able to lodge his appeal within due time. Where an appellant has failed to do so, the Court in its discretion may refuse to give leave to appeal out of time.

The applicant has failed in that duty here, and there do not appear to be any special circumstances in this case which would justify this Court in exercising its discretion in favour of the applicant.

The application must, therefore, be refused with costs.