Shariff v Kampala General Agency Ltd (C.A. 38/ 1933.) [1937] EACA 23 (1 January 1937)

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

## ABDULLA SHARIFF (Appellant) (Original Defendant No. 5)

## KAMPALA GENERAL AGENCY LTD. (Respondent) (Original Plaintiff).

## C. A. $38/1933$ .

- Eastern Africa Court of Appeal Rules, 1925, Rule 8-Time for filing memorandum of appeal. - Held (13-12-33).-That the provision in Rule 8 of the Eastern Africa Court of Appeal Rules that in computing the period for filing appeals in civil cases the time requisite for obtaining a copy of the - decree and of the statement given by the judge be excluded, does not in itself create a right to file an appeal out of time without an application for leave to appeal out of time. - $Held$ (10-1-34).—That delay in supplying a certified copy of a decree<br>for which delay the appellant is not responsible justifies leave<br>being given to appeal out of time.

Vellani for Appellant.

Figgis, K. C. (Chitale with him) for Respondent.

The memorandum of appeal was filed on 15th August, 1933, against a decree of the High Court of Tanganyika at Dar es Salaam, dated 15th November, 1932. On 24th January, 1933. the petitioner applied to the High Court for certified copies of the judgment and decree. The former was supplied on 8th February, 1933, and the latter on 26th July, 1933. Delay in providing a certified copy of the decree was due to the fact that certain accounts had to be taken and the bill of costs of the successful plaintiff (respondent in this appeal) had to be taxed.

Figgis.—The appeal is out of time. Notice that the copies required by the appellant were ready was issued from the High Court on 26th July, 1933. This is an appeal by a party with a decree in his favour who prays that that decree be set aside. The principle was laid down in Jivanji v. Jivanji, 12 K. L. R. 45. in the following terms: $-$

"The ratio decidendi expressed in a judgment cannot be called in question in review unless the resultant decree is a source of legitimate grievance to a party to the suit. . . . It is <sup>1</sup> the duty of a party who wishes to appeal against, or apply for a review of, a decree or order to move the Court to draw up and issue the formal decree or order."

Yellani.—The decree through no fault of appellant was not ready until 26th July, 1933, and therefore the time for filing the

memorandum of appeal, according to Rule 8 of the Court of Appeal Rules, expired 16th August, 1933. Preliminary decree could not be drawn up without accounts being taken.

Figgis replied.

The Court adjourned the matter until 2nd January, 1934, in order to permit of an application for leave to appeal out of time being made.

An application was filed on 28th December, 1933, in which the appellant prayed that it be declared that the memorandum of appeal filed on the 15th August, 1933, had been filed within time, or, in the alternative, that the petitioner might be granted leave to file his appeal out of time.

JUDGMENT.—The practice of the High Court of Tanganyika in the case of a preliminary mortgage decree requires that certain things shall be done prior to the issue of the decree. In the letter of Messrs. Vellani and Vellani of the 19th December, 1933, addressed to the Registrar, those requirements are stated: $(a)$ Bills of costs of the respective parties to be taxed; (b) Fees for the taking of accounts to be paid; $(c)$ Fees for the drawing of the preliminary decree to be paid and a draft decree to be sent out to the advocates of the respective parties to the suit for approval. This letter in its penultimate paragraph states: "Our client will be obliged if you will kindly confirm that the dates set out in paragraph 2 hereof are correct, and that the reason for the delay in the issue of the preliminary mortgage decree is as is explained in paragraph 3 hereof." Paragraph 3 discloses that judgment was pronounced on the 15th November, 1932, that the respondents lodged their bill of costs for taxation on the 4th January. 1933, and that the bill of costs was not taxed until the 6th May. 1933. This paragraph also shows that the respondent did not pay fees for the taking of accounts until the 8th June, 1933. The correctness of these particulars is confirmed by the Registrar's reply of the 20th December, 1933, to the letter of Messrs. Vellani and Vellani, in which he says, "I have the honour to confirm the particulars stated in paragraphs 2 and 3 of your letter of the 19th inst..."

The facts to which we have referred go to show that there was delay on the part of the respondent in complying with the requirements necessary under the practice prior to the issue of a decree. There is no counter affidavit by the respondent alleging that this delay was due to any act of the applicant. It has been argued for the respondent that the applicant, having asked for and received the costs awarded to him on the dismissal of the suit to which he was made a party under Order XXXIV, Rule 1, of the Civil Procedure Code, he should not be granted leave to appeal out of time. We are unable to perceive how the position of the respondent or of any other person has been prejudiced by

this action on the part of the applicant. The applicant on being joined as a party by the respondent asked for certain relief. inter alia, that accounts be taken, and that he might be given time to redeem, and his prayer in this respect was not investigated by the learned Judge, who held that, because of a decision in Civil Case 43/1931 that a particular document was null and void, the applicant (who was not a party to that suit) had no interest by way of transfer or sub-mortgage. It may be that when the appeal comes to be heard, this decision can be supported. At the present time we do not intend to indicate any view, lest by doing so we should be taken to prejudice the appeal. In all the circumstances of the case—and they are unusual—we are of opinion that the applicant should be given leave to appeal out of time and the appeal set down for hearing at the next sessions. The costs to be costs in the appeal.