Trustees of the Sunni Muslim Community v Fernandes (Civil Appeal No. 12 of 1949) [1949] EACA 7 (1 January 1949)

### COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, C. J. (Kenya), SIR JOHN GRAY, C. J. (Zanzibar), and AINLEY, J. (Uganda)

## THE TRUSTEES OF THE SUNNI MUSLIM COMMUNITY, Appellants (Original Plaintiffs)

v.

# A. C. M. FERNANDES, Respondent (Original Defendant)

## Civil Appeal No. 12 of 1949

#### (Appeal from decision of H. M. High Court of Uganda)

Practice—Uganda Civil Procedure—Appeal where no decree issued—Whether appeal lies from an order made under Order 45, Rule 5-Civil Procedure Ordinance, sections 66 and 75—Rules, Orders 40 and 45, Rule 5.

The appellants obtained judgment on the 26th November, 1948, against the respondent for the recovery of certain premises in Jinja. The trial Judge made an order for immediate possession of the premises but directed that such order be discharged provided that the respondent complied with certain conditions (fully set out in the judgment below) by 12 noon on the 18th December, 1948.

No formal decree was issued, and the respondent failed to comply with the conditions in the time specified, but on the 22nd December, 1948, the trial Judge in the absence of the parties made an order under O.45 R.5 of the Civil Procedure Rules extending the time. The appellants appealed.

Held (14-4-49).—That there was no decree in existence against which the appellants could appeal, and that there is no right of appeal against an order made under Order 45, Rule 5 of the Uganda Civil Procedure Rules.

Appeal dismissed.

(In view of the exceptional circumstances of the case their Lordships have indicated in the judgment below where in their view the appellants' remedy may lie.—*Editor*.)

James for the Appellants.

C. C. Patel for the Respondent.

SIR BARCLAY NIHILL, C. J.—Counsel for the respondent has taken a preliminary objection to the hearing of this appeal, on the grounds that no copy of a decree is attached to the memorandum of appeal and that the order made by the learned Chief Justice of Uganda bearing date 22nd December, 1948, cannot be made the subject of appeal. I think that there is substance in this objection but the circumstances which have given rise to the position the appellants now find themselves in are somewhat exceptional and had best be stated-

The appellants were the plaintiffs in a suit in which they prayed for an order for possession of certain premises situated in Jinja. On 26th November, 1948, judgment was given in their favour by the learned Chief Justice of Uganda in the following terms:-

"I give judgment for plaintiffs as prayed less the amount paid into the bank on 23rd November, 1948. Judgment for immediate possession of the premises is also given this order to be discharged provided the taxed costs of this action are paid by 12 noon on 18th December, 1948, and provided also that security in the sum of Sh. 3,000 (that is rent for $12\frac{1}{2}$ months) is given to the satisfaction of the District Registrar, High Court, Jinja, by 12 noon on 18th December, 1948.

No formal decree was issued by the Court in pursuance of this judgment and has not been issued to date. The defendant respondent did not comply with the conditions laid down by the judgment by 12 noon on 18th December, 1948, and the appellants' advocates applied for execution of the order for possession the District Registrar at Jinja refused this and subject to confirmation by the Chief Justice accepted the guarantor offered by the defendant on 20th December. The matter came before the learned Chief Justice on 22nd December, when in the absence of the parties and not on the application of either of them, he made the following order: $-$

"I extend the time accordingly to 20th December, 1948. In making this order I have taken into consideration the above remarks of the District Registrar and his letter No. D. R. C. C.25/48 of 20th December, 1948."

The "above remarks" referred to a note by the District Registrar on the record dated 20th December, 1948, to the effect that it was not the fault of the defendant that he had failed to comply with the judgment on 18th December, but that it was due to the fact that he, the District Registrar, was not in Jinja on that day. Although the learned Chief Justice does not say so in terms I think it must be taken that his order of 22nd December was purported to be made under Order XLV Rule 5 of the Uganda Civil Procedure Rules, 1928, which is a rule which empowers a Court on application to enlarge a limited time period already ordered by the Court. The question then arises whether an order made or purported to be made under this rule is, under the Municipal Law of Uganda, made appealable to this Court. Section 69 of the Civil Procedure Ordinance, 1928, is in the following terms: $-$

"Unless otherwise expressly provided in this Ordinance an appeal shall lie from the decrees or any part of decrees and from the orders of the High Court to the Court of Appeal for Eastern Africa."

Section 75 of the Ordinance gives a right of appeal against certain orders as set out in the section and prohibits appeals from any other orders unless expressly provided for in the Ordinance or by any law for the time being in force. An order for enlargement of time is not one of the orders referred to in this section and unless therefore such an order has been expressly made appealable by the rules no right of appeal lies (section 75 (1) read with section 75 (1) (h)). The order in the rules dealing with appeals from orders is Order XL but this order contains no reference to an order made under Order XLV Rule 5. The position therefore is that there is no decree in existence against which the appellants can appeal and no right of appeal obtains to them in respect of the order made on 22nd December, 1948. The respondent is therefore entitled to succeed on his preliminary objection and the appeal must be dismissed with costs.

Learned counsel for the appellants who in the course of the argument felt constrained to accept this position has asked for directions. The circumstances are exceptional enough in my opinion to warrant us in indicating where in our view his remedy may lie. If in due course the appellants obtain a decree embodying the judgment of 26th November, 1948, and the order of 22nd December, 1948, they will have a right of appeal against that decree. Alternatively it is open to them under Order XL Rule one, sub-rule two of the Civil Procedure Rules to apply to the Court which made the order of 22nd December, 1948, for leave to appeal against the order. If leave is refused an application for leave could be made to this Court, but no application could be entertained by this Court under Order XL Rule one sub-rule 3 until application has first been made to the Court which made the order it is sought to appeal against.

SIR JOHN GRAY, C. J.—I agree.

AINLEY, $J.-I$ agree.