Velji v Hirji (Civil Appeal No. 47 of 1952) [1952] EACA 184 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and PELLY MURPHY, Ag. C. J. (Zanzibar)

## FAZAL KASSAM VELJI, Appellant (Original Defendant)

POPAT HIRJI, Respondent (Original Plaintiff) Civil Appeal No. 47 of 1952

(Appeal from the decision of H. B. M.'s High Court of Zanzibar—Gray, C. J.)

Practice—Court of Appeal for Eastern Africa Rules, rule 6 (2) (b) appeal—Judgment and decree to accompany memorandum.

The appellant sought to appeal against a judgment given in H. B. M.'s High Court of Zanzibar in respect of which a decree had been drawn up. At the date of filing the memorandum of appeal, Article 37, Zanzibar Order in Council, 1924, applied and provided that an appeal shall lie from the decrees or any part of the decrees and from the order of the High Court passed or made in the exercise of its original jurisdiction to the Court of Appeal. The memorandum of appeal was filed on 2nd February, 1952, with a copy of the judgment. After filing application was made for a certified copy of the decree and this was without being supplied was filed with the memorandum of appeal and judgment. The respondent raised a preliminary objection at the hearing of the appeal that the appellant had failed to comply with rule 6 (2) (b) of the Court of Appeal for Eastern Africa Rules.

Held (1-11-52).—The memorandum of appeal should have been accompanied by the decree and judgment but the decree existed at the date of presentation and the appeal would<br>have been competent had the decree been annexed. Accordingly as the decree was filed while still within the appealable time the procedural slip was curable. Objection fails.

Cases referred to: Morrison v. Mohamedraza Suleman Versi & Another, Civil Appeal No. 88 of 1952; Kiwege and Mgude Sisal Estates, Ltd. v. Manilal Ambalal Nathwani, Civil Appeals Nos. 69 of 1952, 67 and 70 of 1951.

O'Brien Kelly for appellant.

$K.$ S. Talati for respondent.

JUDGMENT.—In this appeal the advocate for the respondent has raised a preliminary objection to the competence of the appeal on the ground that the appellant did not comply with the provisions of rule 6 (2) (b) of the Eastern African Court of Appeal Rules, 1925, which require that in the event of an appeal from a decree issued in pursuance of a judgment, the memorandum of appeal shall be accompanied by both a copy of such decree and a copy of the judgment. The advocate for the appellant has conceded that there was on his part a technical failure to comply with this Rule, but has submitted that the record of appeal as now before the Court is correct in all respects and contains all the resquisite documents, and that this is a case where the Court should exercise its discretion and regard the documents as having been duly filed.

The history of this matter is as follows. The judgment against which the appellant seeks to appeal was given in H. B. M. High Court of Zanzibar on 28th November, 1951, and the memorandum of appeal is dated as at Mombasa, 15th January, 1952, but was actually filed in the office of the Deputy Registrar of this Court at Zanzibar on 2nd February, 1952. At that date the relevant provision was Article 37 of the Zanzibar Order in Council, 1924, the amendment effected by section 2 of the Zanzibar Order in Council, 1952, not having come<br>into force until 5th April, 1952. Article 37 therefore read: "Unless otherwise. expressly provided by any law for the time being in force in Zanzibar an appeal shall lie from the decrees or any part of the decrees and from the orders of the High Court passed or made in the exercise of its original jurisdiction to the Court of Appeal." And in the Civil Procedure Decree (Cap. 4) which governs proceedings in the High Court, i.e. in both H. B. M. High Court for Zanzibar and in H. H. the Sultan's Court, there is, in section 2, a definition of decree of which the relevant words are that it shall mean the formal expression of an adjudication. The adjudication against which the appellant seeks to appeal was a judgment given by the High Court of Zanzibar in its original jurisdiction awarding the plaintiff Sh. 20,000 with costs and interest, and a decree was drawn up as of the date of the judgment, namely, 28th November, 1951, and in accordance with that judgment. It is not clear exactly when this decree was drawn up, but Mr. Talati concedes that it must have been in existence at the latest on 23rd January, 1952, on which date the plaintiff (present respondent) filed an application for execution.

It is from that decree, and from that decree only, that the appellant's right of appeal springs, and it is clear beyond argument that his memorandum of appeal should have been accompanied by both a copy of the decree and of the judgment in pursuance of which the decree was issued. There is, however, on the record of the file of the Deputy Registrar at Zanzibar a letter from Messrs. O'Brien Kelly & Hassan of date 16th January, 1952, stating that they are instructed to lodge an appeal and forwarding the memorandum of appeal together with a copy of the judgment, but there is no reference in either the memorandum of appeal or in the accompanying letter to the "decree". It appears from statements made by counsel at the bar before us that the appellant himself was told to instruct a local advocate to attend to the business of filing the appeal and that Mr. R. L. Patel was so instructed; and on 6th February, 1952, Mr. Patel applied to the Registry in writing for a certified copy of the decree, undertaking to pay all proper charges. This certified copy was is fact never supplied to the appellant or his advocate, but, on receipt of the fees, copies were certified and filed by the Deputy Registrar with the other documents relating to the appeal on 8th February, 1952. We have further been informed by counsel that this is in accordance with the usual practice of the Registry in Zanzibar and that it has never been customary for the appellant himself or his advocate to attach to the memorandum of appeal a copy of the decree, but that this is done by the Registrar after receipt of the necessary fees. It is clear to us that this practice is incorrect and should be no longer followed: it is the duty of the appellant to present to the Deputy Registrar the memorandum of appeal together with all such copies of the judgment, decree, finding or order, as the circumstances of the case may require, and the rules do not cast on the Registrar any power to dispense with such copies. We think, therefore, that for the future it would be better for the practice in the Registry to conform with the rules. It remains only to add that the requisite copies of the decree were annexed to the memorandum of appeal within the time limited for presenting the appeal and before the record was prepared and sent to the Central Registry at Nairobi. There, however, by some error, they became separated from the memorandum of appeal, so that, in the record as laid before us no copy either of the decree or of the judgment was annexed to the memorandum of appeal; but we are quite satisfied that this subsequent error cannot be laid to the appellant's charge.

It remains to consider, however, whether the failure of the appellant "to accompany" his memorandum of appeal by a copy of the decree has rendered his appeal incompetent. Mr. O'Brien Kelly has urged that the word "accompanied"

should not be too strictly construed, and that it would be a reasonable interpretation of the rule to hold that it is sufficiently complied with when, as in the instant case, all the necessary documents have been filed before the time limited for appealing has expired, before the record is sent to the Central Registry and before any notice of appeal has been sent out. Mr. Talati on the other hand, relied upon the judgment of this Court in Civil Appeal No. 88 of 1952: Morrison v. Mohamedraza Suleman Versi & another, which was an appeal from the High Court of Tanganyika, and in which this Court upheld a preliminary objection of a similar nature and dismissed the appeal. In that case, however, there was a substantial difference: at the time when the memorandum of appeal was filed, no decree embodying the terms of the judgment had been drawn up. Application had been made to the Registrar of the High Court of Tanganyika for a certified copy of the decree before the memorandum of appeal was presented, but the costs awarded at the trial not having been taxed the decree could not be drawn up. This Court held, therefore, that the appeal as presented was incompetent and in fact was premature, having been filed before the decree had come into existence from which an appeal could lie. Accordingly, and for the reasons given in the judgment of-this Court in Civil Appeal No. 69 of 1952 (Kiwege and Mgude Sisal Estates, Ltd. v. Manilal Ambalal Nathwani) the appeal was dismissed, this Court saying that where a right of appeal did not exist under the municipal law it cannot be conferred retrospectively by any amendment of the memorandum of appeal made by leave of this Court. So also in Civil Appeals Nos. 67 and 70 of 1951, in which this Court upheld preliminary objection based on the absence of a formal order as required by the relevant provisions of the Kenya legislation conferring a right of appeal to this Court. As is there said in the leading judgment of the President: "There is nothing therefore against which the party aggrieved can appeal, because the municipal law of Kenya does not provide, in the case of a decision of the Civil Court which is not a decree, that an appeal can be entered against a decision of a civil court not formally expressed so as to constitute an order."

In the instant case, however, there was in existence on 2nd February, 1952, when the memorandum of appeal was presented, a formal decree and therefore the appellant's right to appeal had also come into existence; and, in contradistinction to the appeals in the cases cited above, his appeal could have been and would have been competent beyond any question had he annexed to it a copy of the formal decree, for he was still within the appealable time. The distinction seems to us to be fundamental and vital. In the former cases this Court has held that the defect went to the root of the jurisdiction and was incurable; in the instant case it appears to us that it is nothing more than a procedural slip which was cured within a reasonable time and within the appealable time, and we are of the opinion that it would be putting an unduly harsh construction on the Rule to hold that a merely technical failure to comply with it was incurable and that the appeal was entirely incompetent.

For these reasons we think that the preliminary objection fails and that the appeal should be considered on its merits.

As regards the merits, learned counsel for the respondent has conceded that there is no substantial difference between the document relied on by the plaintiff-respondent to prove a contract of sale and the disputed document in Civil Appeal No. 40 of 1952. The issues of fact and law are the same in both appeals, and accordingly the judgment in this appeal must follow our decision in the appeal last above cited, and we direct that an order be made in similar terms.