[1954] EACA 116

#### APPELLATE CIVIL

## Before WINDHAM, J.

### SALEH BIN AHMED BUJRA, Appellant

# ν.

## SHEIKH DAHMAN BIN ABDULLA, Respondent

### Civil Appeal No. 106 of 1952 (Mombasa)

Civil Procedure and Practice-Civil Procedure Ordinance-Section 11-Competency of Transfer of suit by First Class Magistrate to Court of Liwali-Inherent jurisdiction of Liwali-Whether assumption of jurisdiction irregular -Section 16-Whether applicable on appeal-Minor success-Costs-Kenya and Indian Procedure compared.

The plaintiff instituted a suit in the Court of the First Class Magistrate at Malindi who issued a summons. The Wakil of the defendant applied for a transfer of the suit to the Court of Liwali. The magistrate, without intimation to the plaintiff, made an order "Transferred to Liwali". The case was heard and decided by the Liwali without objection to jurisdiction by the plaintiff who, on obtaining judgment for less than the sum sued for and on being mulcted in costs for the disallowed portion of his claim, appealed. The grounds of appeal were that there was no proper transfer of the suit to the Liwali and so the hearing was a nullity; that the disallowance of part of the claim was arrived at for inadmissable reasons and against the weight of the evidence and that there was an error in law in awarding the defendant costs in respect of the disallowed portion of the claim.

Held (29-3-54).-(1) The magistrate had power under the first proviso to section 11 of the Civil Procedure Ordinance to make an order transferring the suit but it was irregular to make such an order after assuming jurisdiction and issuing a summons and failing to<br>express his opinion that there was no point of law involved nor good and sufficient reason for instituting the suit in his Court.

(2) The point at issue on appeal was not the inherent jurisdiction of the Liwali's Court but the regularity of its assumption of jurisdiction. Section 16 of the Civil<br>Procedure Ordinance applied and precluded the appellant from taking the point of<br>jurisdiction on appeal since he had consented to jurisdic

(3) The finding of the court below was neither perverse nor against the weight of evidence and there was no ground to justify interference with it.

(4) In the absence of reasons for awarding the defendant costs for the disallowed portion of the claim, that part of the order of the Liwali was bad, and the judgment was varied by setting aside that part. As the appellant had succeeded on a minor ground and had failed in his major contentions, the Court ordered the respondent to pay one-half only of the costs on appeal.

Cases cited: Ledgard v. Bull, (1887) 13 I. A. 134; I. L. R. 9 All. 191, (P. C.); Meenakshi Naidu v. Subramanyia Sastri, (1887) 14 I. A. 160; I. L. R. 11 Mad. 26 (P. C.).

Cited: Mulla Commentary on Indian Civil Procedure Code, 10th Ed. page 126.

U. K. Doshi for appellant.

Respondent in person.

$\mathcal{I}_{\text{max}}$

JUDGMENT.—The plaintiff instituted this suit in the Court of the First Class. Magistrate, Malindi. After the plaint had been filed and summons had been issued on the defendant but before the filing of the Statement of Defence, the Wakil (legal adviser) of the defendant made an application in writing to the magistrate, on 2nd September, 1952, which was in the following terms: -

"Sir, I am the Wakil for Dahman Abdalla, and I have no licence to appear in your court. As Dahman is not acquainted with law and does not understand Kiswahili, I beg request that this case be heard by the Liwali or the Kathi, unless your court is pleased to authorize me to appear in your court, to defend this case."

Upon this application the magistrate on 4th September, without consulting the plaintiff made and signed the following endorsement: —

"Transferred to Liwali."

Thereupon the case was transferred to the Liwali's Court at Malindi, and the Statement of Defence was filed in that court on 5th September. The case was tried by the Liwali, who gave judgment in the plaintiff's favour in the amount of Sh. 217/60 which represented a part only of the plaintiff's claim. The claim had been for Sh. 447/60, being the unpaid balance of goods said to have been supplied by the plaintiff to the defendant. At no time before or during the trial of the case in the Liwali's Court did the plaintiff object to the trial taking place before that court. He raises the objection for the first time on this appeal. His grounds of appeal are three; first, that there was no proper transfer of the case from the magistrate's court to that of the Liwali and that, accordingly, the trial in the latter court was a nullity; secondly, that the Liwali's finding against the plaintiff in respect of the balance of his claim (i.e. Sh. 230 being the difference between the Sh. 447/60 claimed and the Sh. 217/60 awarded) was arrived at for inadmissible reasons and was against the weight of evidence; thirdly, that the Liwali erred in law in awarding to the defendant his costs in respect of that disallowed portion of the plaintiff's claim, namely the Sh. 230.

With regard to the contention that the proceedings in the Liwali's Court were a nullity, it is undisputed that both the First Class Magistrate's Court and the Liwali's Court had jurisdiction to try the case; that is to say, the suit could have been instituted in either of these courts. The suit was in fact instituted in the magistrate's court, and it is accordingly contended that the only way in which it could have been validly "transferred" to the Liwali's Court would have been upon an order of the Supreme Court under section 17 of the Civil Procedure Ordinance, which provides as follows: —

"17. Where a suit may be instituted in any one of two or more subordinate courts, and is instituted in one of such courts, any defendant after notice to the other parties, or the court of its own motion, may, at the earliest possible opportunity, apply to the Supreme Court to have the suit transferred to another court; and the Supreme Court after considering the objections, if any, shall determine in which of the several courts having jurisdiction the suit shall proceed."

There exists, however, another provision of the Civil Procedure Ordinance, under which the First Class Magistrate could himself properly remit for trial in the Liwali's Court a suit which had been instituted in his (the magistrate's) court, namely the first proviso to section 11, which reads as follows:-

"Provided that, if a suit is instituted in a court other than a court of the lowest grade competent to try it, the magistrate holding such court shall return the plaint for presentation in the court of the lowest grade competent to try it if in his opinion there is no point of law involved or no other good and sufficient reason for instituting the suit in his court."

Now it is argued on behalf of the appellant, and in my view rightly, that the order which the First Class Magistrate endorsed upon the application of the respondent's Wakil, namely the words "Transferred to Liwali", was not an order which could properly and strictly be held to have been made in exercise of his powers under the first proviso to section 11, because it was made after he had already issued summons upon the defendant and thereby assumed jurisdiction, and also because he did not, as the proviso requires, express it to be his opinion that there was no point of law involved nor any other good and sufficient reason for instituting the suit in his (the magistrate's) court. But I am unable to accede to the contention advanced for the appellant that, upon the magistrate's assuming jurisdiction by issuing a summons upon the defendant, he thereby ousted the jurisdiction (i.e. the inherent jurisdiction) of the Liwali's Court so that nothing could restore it save an order by the Supreme Court under section 17. What the magistrate did was to make an irregular order purporting to "transfer the suit to" or to "return the plaint for presentation in" the Liwali's Court. This was a point that the appellant could have taken in the Liwali's Court, namely that there had been an irregular assumption of jurisdiction by that court; and upon such a submission the Liwali might have refused to try the case unless and until the irregularity had been cured. And if the point had been taken before the Liwali and the latter had refused to entertain it and had proceeded to try the case, then this Court upon appeal might no doubt have set aside the judgment of the Liwali's Court (I say advisedly "set it aside" and not "declared it to be a nullity") always assuming the trial by the Liwali had resulted in a failure of justice.

But since the appellant at no time objected below to the case being tried in the Liwali's Court, we must consider the effect of section 16 of the Civil Procedure Ordinance. That section provides as follows: —

"16. No objection as to the place of suing shall be allowed on appeal unless such objection was taken in the court of first instance and unless there has been a consequent failure of justice."

It is argued for the appellant that section 16 does not apply to "transfers" of cases which have been made or ought to have been made, by the Supreme Court under section 17 and that therefore it cannot apply to the present case. But there is here, I think, a slight confusion of thought. The order of the magistrate transferring the suit, or purporting to transfer it, to the Liwali's Court was an irregular exercise of a power which he possessed under the first proviso of section 11, to require the case to be tried by the Liwali's Court, a court which throughout had inherent jurisdiction to try it. The question therefore is whether the words "objection as to the place of suing" in section 16 apply to an objection such as I conceive the present one to be, namely that there was never any proper or regular assumption of jurisdiction by the Liwali's Court. There can be no doubt in my mind that those words in section 16 do so apply. Section 16 exactly reproduces section 21 of the Indian Civil Procedure Code; and Mulla in his Commentary on that Code, 10th Edition, page 126, in commenting on the words "place of suing" in section 21, observes that: "Sections 15 to 20 lay down rules as to place of suing and there is no doubt that in this section the expression is used with reference to those Rules." It remains to add that sections 15 to 20 in the Indian Code are the equivalents of sections 11 to 15 in the Kenya Code.

That being so, then this is a case where, since the inherent jurisdiction of the Liwali's Court is not in issue but rather the regularity of its assumption of jurisdiction the appellant is now-precluded by section 16 from taking the point, since he consented to jurisdiction below. The principle was propounded by the Privy Council in Ledgard v. Bull, (1887) 13 I. A. 134, I. L. R. 9 All. 191, and in Meenakshi Naidu v. Subramania Sastri, (1887) 14 I. A. 160; I. L. R. 11 Mad; 26. both being cases concerned with section 21 of the Indian Civil Procedure Code. and their effect is thus epitomized by Mulla (op. cit.) at page 126: —

"These two cases illustrate the distinction between want of jurisdiction and irregular exercise or assumption of jurisdiction. Irregular exercise or assumption may be waived as it might have been in Ledgard v. Bull, and if a court erroneously assumes jurisdiction to try a suit over which it has inherent jurisdiction its decree may be set aside but it cannot be treated as a nullity. But when the court is not competent to entertain or try the suit there is a want of inherent jurisdiction which cannot be waived."

I accordingly hold that the first ground of appeal must fail.

I turn to the second ground of appeal, namely that the trial court's finding against the plaintiff in respect of the Sh. 230 balance of his claim was arrived at for inadmissible reasons and was against the weight of evidence. This part of the claim concerned five bags of *posho* which two witnesses for the plaintiff in evidence alleged, but which the defendant in evidence denied, had been sold by the plaintiff to the defendant. The court made a finding of fact that the plaintiff "has failed to prove to my satisfaction the sale and delivery of five bags of posho to the defendant". Of the plaintiff's two witnesses the Liwali, earlier in his judgment, said that they were "interested parties and I must take their evidence with greater degree of caution" than that of the defendant. The logic of this observation is difficult to follow, for the defendant himself was, of course, at least as interested a party as were those two witnesses of the plaintiff, and this is one of the points made in support of this ground of appeal. Nevertheless, reading the judgment as a whole, and since this question was one of pure fact and credibility (for there was no written evidence of the sale) I am unable to hold that the finding of the court was perverse or against the weight of evidence, or to see any ground which would justify me in interfering with it.

I come now to the last ground of appeal, which concerns the court's order that the plaintiff should bear the defendant's costs in respect of that part of the claim (namely the Sh. 230) which he failed to establish. No reasons were given by the court for making such an order, and in the absence of any special reasons the order was clearly an improper one. The order that the plaintiff should have costs on the amount in respect of which he succeeded, namely Sh. 217/60 was quite proper. But the order that the plaintiff should pay costs in respect of the balance of Sh. 230 was bad and the judgment will be varied by the setting aside of that order.

In the result, then, the appellant succeeds in this appeal, but only on a minor ground and to a minor extent, and he has failed in his major contentions that the judgment below should be declared a nullity or alternatively should be set aside. In these circumstances I think the fairest course is to order, and I do order, that the respondent pay one-half only of the plaintiff's costs of this appeal. Nothing herein will effect the order of this Court on 13th November, 1953, that the plaintiff should have the costs of the adjournment of that date in any event.