Riberio v Facho and Another (C.A. 21/1933) [1937] EACA 1 (1 January 1937)

### COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J., Ag. P. (Uganda), SIR JOSEPH SHERIDAN, C. J. (Tanganyika), and LUCIE-SMITH, Ag. C. J. (Kenya).

## ROZENDO AYRES RIBEIRO (Applicant) (Original Third Defendant)

#### $2\sqrt{ }$

# OLIVIA DA RITTA SIQUEIRA E. FACHO AND LILIA OZLINDA PIA DA RITTA SIQUEIRA (Respondent) (Original Plaintiffs).

# C. A. $21/1933$ .

Eastern Africa Court of Appeal Rules, 1925, Rule 8-Time for filing Memorandum of Appeal.

Held (10-1-34).—That after delivery of judgment in the Supreme Court the applicant could and should have taken steps to ensure his<br>appeal being within time, and, having failed to do so, there were<br>no special circumstances which would justify the granting of his<br>application for leave to app did not affect the applicant, had to be taken, and notwithstanding<br>that no formal decree had been drawn.

Phadke for Applicant.

Figgis, $K. C.,$ for Respondents.

Phadke.—The Registrar expressed the view that the appeal was out of time as the decree was dated 19th August, 1932, and suggested an application for leave to appeal out of time in view of the provision of Rule 8 $(3)$ of the Court of Appeal Rules.

The basic point for consideration was whether it was competent to the applicant to file an appeal without leave against the decree, which was issued only on 27th July, 1933. Referred to Order XVIII, Rules 13 et seq., containing provisions as to issuing preliminary and final decrees in suits involving the taking of accounts, and submitted they were materially different from the Rules in the English Procedure as laid down in Order 62. There are no "preliminary" and "final" decrees in English Procedure, nor is any "decree" strictly necessary for filing appeal.

Rules 14 et seq. The Kenya Rules are identical with the Rules in the Indian Code of Civil Procedure, 1908, in this respect and Indian decisions on the point should have great weight, cf. 37 Bom. 480 and 38 Bom. 331. In this case, the judgment against the applicant of 19th August, 1932, is a preliminary judgment only because of the direction that he should pay the deficiency in this amount as found after taking accounts of which applicant attended and lodged objections. This deficiency is

assessed at Sh. $75,219/77$ , whereas applicant now being made liable for Sh. 101,615. Virtually ordered to pay moneys for which he was never responsible. No preliminary decree issued as provided in the Kenya Civil Procedure Rules, Order XVIII. Rules 13 and 15. It is nowhere laid down that a party must move the Court to issue a preliminary decree. If there is no preliminary decree there is no right of appeal and no obligation to appeal therefrom. Limitation counts from the date of the final decree and the real date of the decree is the date of the final decree. Discussed the case of Jivanji v. Jivanji, 12 K. L. R. 41. Under English decisions, Court has wide discretion in granting leave, which should be exercised. Cf. re Manchester Economic Building Society, 24 Ch. Div. 497.

Figgis.—The whole circumstances must be considered. This appeal is out of time. Rule 8 of the Court of Appeal Rules provides for the filing of a memorandum of appeal within three months from the date of the decree appealed from. Applicant was found liable in a definite sum of Rs. 22,000 and interest thereon at a fixed rate, although execution was stayed pending execution against the other parties to the suit. The judgment of the Supreme Court was definite as regards the applicant's liability. Applicant must show special and adequate grounds for delay in filing his memorandum. Referred to: International Financial Society v. City of Moscow Gas Co., 7 Ch. Div. 241 and 247; Craig v. Phillips, 7 Ch. Div. 249; Collins v. The Vestry of Paddington, 5 Q. B. D. 368 and 378-9; In re Manchester Economic Building Society, 24 Ch. Div. 497, 499, 503; Esdaile v. Payne, 40 Ch. Div. 520; Nicholson v. Piper, (1907) 24 T. L. R. 16. In the matter of an arbitration between Coles and Ravenshear, 1907 1 K. B. 1; In re Helsby, 1894 1 Q. B. D. 742; Cusack v. London and North-Western Railway Co., 1891 1 Q. B. D. 347, commented on.

Phadke (in reply).—In the cases cited there was little dispute as to what was or should be taken as the date of the judgment or order appeal from. They relate to errors induced by negligence, wilful or otherwise, or miscalculation.

In answer to the Court as to why no action was taken under Rule 25, submitted that Rule 25 is applicable only when an appeal is already on the record, cf. Sugden v. Lord St. Leonards and Others, 1 P. Div. 209. Equity in favour of the applicant is strong.

ORDER.-This is an application for leave to appeal out of time from a judgment of Sir Jacob Barth, Chief Justice of Kenya. Mr. Phadke, for the applicant, addressed an argument to us that, on a proper interpretation of the judgment, the appeal should be regarded as being in time, adding the the reason for his application was to put the matter beyond all doubt (vide his affidavit of

16th September, 1933). Some time in the first week of September, 1933, a memorandum of appeal was drafted and taken to the Registrar of the Court of Appeal, who very properly directed that, in view of the date of the decree being 19th August, 1932, an application for leave to file the appeal out of time would be necessary. Inasmuch as the application before us is for leave to appeal out of time, it would seem that Mr. Phadke acquiesced in the Registrar's ruling, and we do not propose to consider any other aspect of the matter. Looking at the judgment which was delivered on the 19th August, 1932, it is clear that it was passed against the applicant, third defendant, for a definite amount, and that a stay of execution was granted pending the taking of accounts between the first and second defendants. There can be no doubt as to the correctness of the Registrar's ruling that an application for leave to appeal out of time was necessary. Now before the applicant can succeed he must show that there have been special grounds for his delay in presenting his appeal, and here we would observe that it is settled law that a mistake made by him or by his counsel as to the effect of the judgment could not per se constitute a good ground for granting his application. The case of In re Coles and Ravenshear, 1 K. B. (1907), p. 1, in which the earlier authorities are reviewed, makes this clear; that was a case where, through a mistake of counsel as to the effect of a rule of the Supreme Court, England, an appeal was not brought until after the expiration of the time allowed for appealing. It was held that the mistake on the part of counsel was not a sufficient ground for granting the application. Farwell, L. J., in his judgment at p. 8, states: "A mere slip or blunder on the part of a litigant's legal adviser cannot, in my view, entitle him to anything at all. That would have been my view apart from any authority; but I find very high authority for it in the judgment of James, L. J., in International Financial Society v. City of Moscow Gas Co. (7 Ch. D., 241)." He then said: "The limitation of the time to appeal is a right given to the person in whose favour a judge has decided. I think we ought not to enlarge that time unless under some very special circumstances indeed, that is to say, if there has been any misleading through any conduct of the other side. . . . For instance, where there was anything like misleading on the part of the other side, or where some mistake had been made in the office itself, and a party was misled by an officer of the Court, or again where some sudden accident which could not have been foreseen --some sudden death, or something of that kind, which accounted for the delay; in such cases leave might be given. But simply where a man says, 'I looked at the order, and I bona fide came to the conclusion that I had up to a particular day, and I determined to take the last day I could,' then he has taken upon himself to calculate the last day, and if he has made a mistake in calculating the last day, he must abide by the consequences

of that mistake." Baggallay, L. J., in the same case, said: "This Court has expressed an opinion that the mere fact of a misunderstanding by the parties concerned of the provisions of the Rules is not such a special circumstance as to induce the Court to give that special leave which is required to extend the time." And Thesiger, L. J., agreed. Again, there was an expression of the same opinion by three judges in the case of $In$ re Helsby, 1 Q. B. (1894) 742, to which the Master of the Rolls referred: "So that we have the opinion of six judges to the effect that a mistake as to the meaning of the Rules is not a sufficient ground for granting special leave to appeal." The case before us is, we consider, a stronger case for refusing leave to appeal. for the judgment against the applicant is expressed in unequivocal terms. It may be that he delayed appealing in the hope, either that a settlement of the case would be brought about, or that the taking of accounts between the plaintiff and Nos. 1 and 2 defendants would reduce or extinguish his liability. But it is not for this Court to speculate as to what influenced him. Once the judgment was delivered, he could and should have taken steps to ensure his appeal being within time, and having failed to do so there are no special circumstances which would justify our granting the application. The application is dismissed with costs...