[1952] EACA 34

### COURT OF APPEAL FOR EASTERN AFRICA

### Before, SIR BARCLAY NIHILL (President). SIR NEWNHAM WORLEY (Vice-President) and Sir Hector Hearne, C. J. (Kenva)

#### SMITH AGARD AND PATEL, Appellants (Original Defendants)

1,

# J. T. SETH, Respondent (Original Plaintiff)

## Civil Appeal No. 53 of 1951

(Appeal from decision of H. M. Supreme Court of Kenya, Windham, J.)

Appeal Practice—Civil Procedure, Order 7, rule 29—Appeal from order striking out application to dismiss—Whether leave of court necessary or whether appeal as of right.

The respondent sued the appellants for possession in the Supreme Court. The appellants moved the Court under Order 6, rule 29, Civil Procedure Rules, to strike out the plaint as disclosing no cause of action. The Judge ordered the application to be struck out and the respondent to amend his plaint within seven days. On appeal from his order respondent objected on the ground that the order of the Judge was not made in pursuance of the order and therefore that no appeal lay as of right and as no leave to appeal had been obtained the appeal did not lie.

Held (27-3-52).—An order made in pursuance of Order 6, rule 29, is limited to an order made in exercise of the powers given by the rule and granting relief. The preliminary objection was therefore sustained.

Appeal dismissed.

Cases cited: Wilson v. Mayor etc. of Halifax, L. R. 3 Ex. 114, Joliffe v. Wallasey Local Board, (1873) L. R. 9 C. P. 62, Lachmi Narain v. Ram Charan Das, (1913) I. L. R. 35 Allahahad 425.

Dissented from: Dalip Chand and another v. Feroz Din and another, (1935) 16 K. L. R. 106.

Nazareth for appellant.

Harris for respondent.

JUDGMENT (delivered by SIR NEWNHAM WORLEY (Vice-President)).—The appellants were sued by the respondent in the Supreme Court of Kenya at Nakuru for possession of certain premises in the town of Nakuru which it was alleged they had wrongfully entered and occupied. In the plaint it was alleged that the plaintiff (respondent) "is entitled to and claims possession from the defendants" of the premises but the facts grounding the plaintiff's right of possession were not set out. The appellants thereupon moved the Court under Order 6, rule 29, of the Civil Procedure (Revised) Rules, 1948, for an order striking out the plaint as disclosing no reasonable cause of action and asked that the suit be dismissed with costs. After hearing counsel for both parties, Windham, J. reserved his decision and on 28th May, 1951, delivered a written judgment which is a statement of his decision and of his reasons therefor. At this stage it is only relevant to say that after concluding the plaint was certainly defective and perhaps could be held to disclose no reasonable cause of action, the learned Judge concluded that "bearing in mind the provisions of Order 6, rules 16 and 18, of the Civil Procedure Rules, I think the most equitable course would be to dismiss this application to strike out the plaint and to order instead that

the respondent do amend his plaint within seven days in respect of the defects to which I have referred ... I so order accordingly". On the same day a formal order was drawn up, the operative part of which reads:-

"It is ordered:

- 1. That the said application to strike out the plaint be dismissed. - 2. That the respondent (plaintiff) do amend his plaint within seven days in respect of its defects."

The appellants thereupon preferred an appeal to this Court from this judgment "and the Order issued in pursuance thereof" and prayed that "the Ruling and Order be reversed", etc. On the appeal being called for hearing, Mr. Harris, advocate for the respondent, took the preliminary objection that the appeal<br>was incompetent for the reason that it is an appeal from an order in respect of which no appeal lies as of right and that such leave had not been obtained.

Order 6, rule 29, provides as follows: —

"29. The Court may, upon application, order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer and, in any such case, or in case of the suit or defence being shown by the pleadings to be frivolous or vexatious, may order the suit to be stayed or dismissed or judgment to be entered accordingly as may be just. All orders made in pursuance of this rule shall be appealable as of right."

By definition in section 2 of the Civil Procedure Ordinance (Chapter 5) "order" means the formal expression of any decision of a civil court which is<br>not a decree, and sub-section (1) of section 75 of that Ordinance provides—

- (a) that an appeal shall lie as of right from any of the orders prescribed in paragraphs $(a)$ to $(h)$ ; and - (b) that an appeal shall lie from any other order with leave obtained as prescribed in the sub-section.

Paragraph $(h)$ of section 75 (1) reads "any order made under rules from which an appeal is expressly allowed by rules". There can be no doubt therefore that if the learned Judge had granted the appellants' application and had made an order dismissing the suit an appeal at the instance of the respondent would have lain as of right.

Mr. Harris has argued, however, that a decision which rejects the application, although an order within the definition and therefore if formally drawn up, appealable with leave, is not an order made "in pursuance of this rule" so as to be appealable as of right.

I should here interpolate that the argument was not concerned with the second part of the Judge's order. Mr. Nazareth did suggest that it was made without jurisdiction but it is not necessary to consider that point at this stage.

Mr. Harris's argument is that an order "made in pursuance of" rule 29 must be a "positive" order, that is to say, one which exercises or purports to exercise the powers conferred on the Court by the rule to stay or dismiss the suit or enter judgment, as the case may be; and that in dismissing the application the Court was clearly refusing to make such an order.

Mr. Nazareth on the other hand has argued that "in pursuance of" means merely the same as "under" and that the Judge's order of dismissal was made under the rule.

He has also referred us to the cases of Wilson v. Mayor etc. of Halifax L. R. 3 Ex. 114 and Joliffe v. Wallasev Local Board (1873) L. R. 9 C. P. 62 in support of his contention that a "negative" order, i.e. one by which the Court refuses to exercise the powers conferred by the rule, may be deemed to be an order made in pursuance of the rule. For myself I do not derive any assistance in the present matter from the reasoning in that line of cases. The decision there was that a public authority was entitled to the statutory protection when the "act" complained of was an omission, either deliberate or negligent, to do something. Keating, J. summarizes the point at pages 81 and 82 in Joliffe's case:-

"The protection of a clause entitling a defendant to notice of action is only required where something has been done which ought not to have been done, or something omitted to be done which ought to have been done."

And Brett, J. said at pages 87 and $88:$ —

"it is now settled by authority that an omission to do something that ought to be done in order to the complete performance of a duty imposed upon a public body under an Act of Parliament, or the continuing to leave any such duty unperformed, amounts to an act done or intended to be done within the meaning of these clauses requiring notice of action for the protection of public bodies acting in the discharge of public duties under Acts of Parliament. It would seem from these authorities that, where the plaintiff is suing in tort, nonfeasance is to be considered as 'an act done', within such clauses as these."

But there is no analogy between such negligent acts of commission or omission and the matter before us where the learned Judge merely exercised in a certain way a discretion clearly vested in him by the rule.

Order 6, rule 29, appears to have been based on Order 25, rule 4, of the Rules of the Supreme Court, 1883, but the English rule contains no equivalent<br>provision regarding appeals. This provision seems to be entirely local in origin and the only direct authority on the point now under consideration appears to be a decision of a single Judge sitting in civil appellate jurisdiction in the Supreme Court of Kenya (see Dalip Chand and another v. Feroz Din and another (1935) 16 K. L. R. 106). In that case, a precisely similar objection to the present one was overruled by Webb, J. in the following passage:-

"In my opinion the words 'in pursuance of' in Order 6, rule 29, should not be strictly construed as meaning only orders granting the relief which by the rule the Court is empowered to grant, and not also orders refusing to grant that relief. In my view 'in pursuance of' in this rule is equivalent to 'under' in Order 40, rule 1 (1) $(d)$ , $(g)$ , $(n)$ , $(q)$ , where an appeal would lie from an order granting or refusing an application. I am therefore of opinion that this objection fails."

This decision is not, of course, binding upon this Court though entitled to be considered with respect. The current citation of what was Order 40, rule 1 (1), in the Civil Procedure Rules, 1927, is now Order 42, rule 1 (1); the arrangement of the paragraphs is unchanged. (I may, however, note here in parentheses that paragraph $(g)$ of Order 42, rule 1 (1), is incomprehensible; the corresponding paragraph (g) in the 1927 Rules referred to Order 19, rule 31, which did deal with objections to drafts of documents and endorsements, but that rule does not appear in the 1948 Revised Rules. This appears to have escaped the notice of the Rules Committee.) Order 42, rule 1 (1), provides that an appeal shall lie as of right from any of the orders prescribed in paragraphs (a) to (u). The phraseology of these paragraphs varies, the expressions used being "an order

under", "an order made under", "orders in" but in none of them is the expression "made in pursuance of" used. I think it would be wrong to give too much weight to a change in wording, but, nevertheless, in my opinion the expression "in pursuance of" is more limited and conveys as I have said the sense of being an exercise of powers. I take leave to question whether Webb, J. is correct in his assumption that an appeal would lie as of right from the refusal of an application under paragraphs $(d)$ , $(g)$ , $(n)$ and $(q)$ . In several paragraphs the right to appeal from a refusal is expressly conferred; in 'others it is limited to an order granting the relief.

The general principle which emerges from a study of Order 42, rule 1 (1), appears to be that an appeal will lie as of right when the decision, whether it be to grant or to refuse the relief asked for, is in the nature of a final decision; as, for instance, if it puts an end to the proceedings or will irrevocably alter the positions of the parties or their property.

If, for example, one applies this principle to paragraph (d) then an "order made under rule 20 of Order 10" will be an order dismissing the suit or striking out the defence, as the case may be. The analogy with Order 6, rule 29, is very close, and the same result will follow if the principle is applied to rule 29.

Mr. Nazareth has referred us to Indian decisions in which it has been held that an appeal lies as of right from the refusal of an application for an injunction: see for example, Lachmi Narain v. Ram Charan Das (1913) I. L. R. 35 All. 425, in which it was held that an order refusing as well as one granting an injunction was an order passed under Order 39, rule 1, and that the language of Indian Order 43, rule 1 $(r)$ (which corresponds to Kenya Order 42, rule 1 (1) $(q)$ ) covers both classes of orders. I find nothing in such decisions which conflicts with what I have said above since it is of the essence of an application for an injunction that the applicant must satisfy the Court that the suit property is endangered and that he will suffer irreparable injury if it is not protected by injunction.

For these reasons I find myself unable to agree with the ruling given by Webb, J. in the case cited above.

In my view the expression "an order made in pursuance of this rule" in Order 6, rule 29, is limited to an order made in exercise of the powers given by the Rule and granting relief. I would therefore uphold the preliminary objection. It follows that this appeal is not properly brought before the Court and should be dismissed with costs.

SIR BARCLAY NIHILL (President).-I am of the same opinion as the learned Vice-President, and for the reasons he has given I am not prepared to follow the decision of Webb, J.-in Feroz Din and another (1935) 16 K. L. R. 106. I consider that the words "in pursuance of" must be given some meaning and I see no reason to depart from the natural one. A Judge who refuses to exercise the permissive powers given him by Order 6, rule 29, has not made an order in pursuance of the rule. He has made an order refusing to make an order in pursuance of the rule, and that order is not appealable against as of right. The preliminary objection is upheld and the appeal dismissed with costs.

SIR HECTOR HEARNE (Chief Justice, Kenya).-Not without some hesitation, I agree that the appeal was not properly brought before this Court and should be dismissed with costs.