Velji v Takim and Company (Civil Appeal No. 40 of 1952) [1955] EACA 53 (1 January 1955)

### COURT OF APPEAL FOR EASTERN AFRICA

Before Sir BARCLAY NIHILL (President), BRIGGS, Justice of Appeal, and GRAY, Acting Justice (Zanzibar)

### **FAZAL KASSAM VELJI, Appellant (Original Defendant)**

#### ν

## M. TAKIM AND COMPANY, Respondents (Original Plaintiffs)

### Civil Appeal No. 40 of 1952

(Application for leave to file security bond out of time in respect of appeal from decision of H. M. High Court of Zanzibar, Gray, C. J.)

Appeal to Privy Council—Failure to comply with conditions of conditional order giving leave to appeal-Whether Court of Appeal has discretion to allow appeal to go on—East African (Appeal to Privy Council) Order in Council, 1951, section 5 $(a)$ .

By section 5 (a) of the East African (Appeal to Privy Council) Order in Council, 1951: "Leave to appeal under section 3 of this order shall, in the first instance, be granted by the court only $(a)$ upon condition of the appellant, within a period to be fixed by the court but not exceeding 90 days from the date of the hearing of the application for leave to appeal, entering into good and sufficient security to the satisfaction of the court, in a sum not exceeding £500 for the due prosecution of the appeal and the payment of all such costs as may become payable by the applicant in the event of his not obtaining an order granting him final leave to appeal, or of the appeal being dismissed for non-prosecution, or of His Majesty in Council ordering the appellant to pay the costs of the appeal (as the case may be)".

Having obtained from the Court of Appeal a conditional order for leave to appeal to the Privy Council, the appellant failed to comply with a condition of the order, viz. to furnish security, satisfactory to the court, within a certain period.

He had made arrangements for a surety of unquestionable means to sign a surety bond before the District Registrar of the court on the last day allowed for the furnishing of security, but, on that day, the intended surety was ill and was unable to attend. Within four days therefrom the appellant deposited the required security in cash.

The question for decision was whether there is discretion in the Court of Appeal to allow an appeal to go forward although there has been a breach of of the conditions of the conditional order.

Held (7-1-54).—The terms of section 5 (a) aforesaid are directory and not mandatory, and the term of 90 days beyond which security cannot ordinarily be furnished is not intended<br>in any rigorous or exact sense, and can, for cogent reason, be extended.

$\mathcal{L}^{\mathcal{A}}$

Application allowed. Final leave to appeal granted. Appellant to pay costs of application in any event.

Cases referred to: Retemeyer v. Obermuller 2 Moore P. C. C. 93; Pearson v. Russell (1889) 15 Victoria L. R. 89; Chan Wo v. Chan Tam 3 Hong Kong L. R. 179; Burjore and Bhawani Pershad v. Bhagana 11 1. A. 7: 10 I. L. R. (Calcutta) 6 I. L. R. (Allahabad) 250; Sheikh Fazal Ellahi v. Ebrahimji Gulamhussein Anjarwala and others 17 E. A. C. A. 45.

# Talati for applicant/appellant. Jesrani for respondent.

ORDER (read by Nihill, President).—This is an application to this Court for leave to file a security bond out of time. The matter arises in this way. The applicant on the 23rd of May, 1953, obtained a conditional order from this Court: for leave to appeal to the Privy Council from a judgment of this Court dated the 1st of November, 1952, on appeal from the High Court of Zanzibar. It was a condition of the order that the applicant should furnish security to the satisfaction of the court in a sum of £400 within three months of the 23rd of May, 1953. The security as ordered was not furnished to the Deputy Registrar of this Court. at Zanzibar by the 22nd of August, 1953, but on the 28th of August the applicant deposited £400 in Court. In an affidavit filed with this application Sultan Rashid Nathani, a partner in the applicant firm, has sworn that he had made arrangements to obtain a surety of unquestionable means to sign a surety bond in the sum of £400 before the Deputy Registrar at Zanzibar on the 22nd of August but that on account of illness the intended surety was unable to attend on that day.

The question that now arises for our decision is whether this Court has a discretion to allow the appeal to go forward although there has been a breach of the conditions of the conditional order.

The procedure for regulating appeals from this Court to Her Majesty in Council is governed by the East African (Appeal to Privy Council) Order in Council, 1951. The section relevant to the point we have now to consider is section 5 (a) which is as follows: $-$

"5. Leave to appeal under section 3 of this Order shall, in the first instance, be granted by the court only—

(a) upon condition of the appellant, within a period to be fixed by the $(a)$ court but not exceeding ninety days from the date of the hearing of the application for leave to appeal, entering into good and sufficient security to the satisfaction of the court in a sum not exceeding £500 for the due prosecution of the appeal and the payment of all such costs as may become payable by the applicant in the event of his not obtaining an order granting him final leave to appeal, or of the appeal being dismissed for non-prosecution, or of His Majesty in Council ordering the appellant to pay costs of the appeal (as the case may be)."

Prima facie the above provisions would seem to be mandatory rather than directory. At least it is clear that this Court in fixing a time within which security is to be entered cannot initially give the appellant longer than 90 days. Does it follow that where there has been a failure to comply with the order for a good and reasonable cause this Court cannot grant relief? We have been unable to discover any reported instance where 'their Lordships have had this question before them in the case of a colonial appeal.

We have considered the case of Retemeyer v. Obermuller, 2 Moore P. C. C. 93, but obtain no assistance therefrom, as the wording of the Order in Council there applicable was materially different from that which governs us. We have no reports here of the cases of *Pearson v. Russell*, (1889) 15 Victoria L. R. 89, or of Chan Wo v. Chan Tam, (1908) 3 Hong Kong L. R. 179, which may well be in point.

In the case of appeals from India, however, the matter has been considered by the Privy Council (see Burjore and Bhawani Pershad v. Bhagana reported in

11 I. A. 7 and in 10 I. L. R. (Calcutta) 557). In this case the preliminary point was raised as to whether the court of the Judicial Commissioner of Oudh had a right to extend the time for giving security under section 602 of Act X of 1877. Their Lordships held that the provision relating to the giving of security was directory. only, and, although not to be departed from without cogent reason, they held in the particular case before them that the Commissioner had exercised a right discretion. Their Lordships cited with approval a case decided by the Full Bench of the court at Calcutta in which a similar view had been taken. The case in question, as appears from the Calcutta series report, though not from the Indian Appeals Report, is In re the petition of Soorjmukhi Koer, 2 I. L. R. (Calcutta) 272. It was decided in 1877 and turned on the wording of section 11 of Act VI of 1874. We are handicapped by not having available here the text of either of the Indian Acts in question, and can only infer, somewhat unsafely, from short quotations in the reports, that this section was substantially *in pari materia* with section 602 of Act X of 1877. The Full Bench relied on the absence in this of any provision requiring dismissal of the appeal in the event of non-compliance and contrasted section 10, where such a provision is found.

In 1884, a year after the decision of the Privy Council a Full Bench of the High Court of Allahabad attempted, in Fazul-un-Nissa Begum v. Mulo and another, 6 I. L. R. (Allahabad) 250, to analyse that decision. After stating that the words of section 602 were prima facie mandatory, the court found indications in three subsequent provisions from which it could be inferred that section 602 was intended to be read as directory only. The passage is as follows:-

"But the meaning of this section is considerably modified if we read it, as I think we may, with sections 603, 604 and 605. Section 603 provides that: 'When such security has been completed and deposit made,' not as before provided, but 'to the satisfaction of the court, the court may declare the appeal admitted, etc.' Then by sectoin 604 it is provided that 'at any time before the admission of the appeal, the court may upon cause shown, revoke the acceptance of any such security and make further directions thereon.' Then section 605 is still more significant, providing as it does, that: 'If at any time after the admission of the appeal, but before the *transmission of the copy of the record*, except as aforesaid, to Her Majesty in Council, such security appears inadequate, or further payment is required for the purpose of translating, transcribing, printing, indexing, or transmitting the copy of the record, except as aforesaid, the court may order the *appellant to furnish*, 'not within six months or six weeks', but 'within a time to be fixed by the court, other and sufficient security, or to make within like time the required payment."

The wording of section 602 of Act X of 1877, later incorporated as section 602 of the Indian Procedure Code, is not the same as that of section 5 $(a)$ of the Eastern African (Appeal to Privy Council) Order in Council, 1951, but it contains an equally mandatory provision, namely, that security should be given within six months from the grant of the certificate.

We are aware of the dangers of adopting a principle declared in respect of the provisions of one enactment to the provisions of a different enactment, but nevertheless we have come to the conclusion that their Lordships' ruling in the Indian case is good and sufficient authority for this Court to assume that it has a similar discretion in respect of section 5 of the Order in Council. In section 8 of the Order in Council there is provision that during the preparation of the record this Court may give such directions as the justice of the case may require on any disputed question. Admittedly this section does not relate specifically to the furnishing of security, but we think

that it may reflect a directory meaning on section 5 (a). Section $1\overline{1}$ contains provisions somewhat similar to those of the Indian section 604. and section 5 $(b)$ is somewhat analogous to section 605. In spite of the wide differences of wording, we think the general situation of an apparently mandatory provision bearing a modified meaning by reason of subsequent related provisions obtains here, as it did in India, and we think that the Allahabad Full Bench must have described correctly the reasoning underlying the decision of the Privy Council in *Burjore's case*. It is worth observing that, although in India the Code of Civil Procedure and not an Order in Council governed the matter, it was not suggested that any general power given by the Code to extend time could modify the effect of section 602. Had that been the case, the authorities would clearly not have been relevant for our purposes.

Considering as a whole the procedure governing appeals to their Lordships as laid down in the Order in Council, we think we should be right, following the Indian cases, in holding that the term of 90 days beyond which security cannot ordinarily be furnished is not intended in any rigorous or exact sense, but could within limits be extended for cogent reason. If we are right in this, and if we are wrong we can no doubt be corrected by their Lordships if a preliminary objection is taken, we are satisfied that on the appellant's affidavit now before us, which has not been challenged, a good ground exists for the exercise of discretion. The appellant had made arrangements for lodgment of the security on a day within time and had no control over the illness of the surety. Furthermore he was able within four days to make a cash deposit into court.

We are therefore prepared to accede to the appellant's prayer and to make an order for the acceptance of the sum of £400 as security for the due prosecutionof his appeal. We also grant final leave to appeal, the record to be dispatched within 30 days of to-day's date.

As regards the costs of the motion now before us, since the appellant has been granted an indulgence, we order that these shall be paid by the appellant in any event.