[1950] EACA 209

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SINCLAIR (Vice-President), BRIGGS and BACON, Justices of Appeal

# MANIBHAI BHAILALBHAI PATEL, Appellant (Original Applicant) v.

## (1) MEHAL SINGH and (2) MELA SINGH & CO., Respondents (Original Respondents)

### Civil Appeal No. 14 of 1955

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

Procedure—Extension of time for filing application to set aside abritrator's award -Kenya Arbitration Ordinance, sections 10 and 20-Kenya Rules of Court (Proceedings in Arbitration), rule 7-Kenya Civil Procedure, sections 2, 89, 95 and 97—Indian Limitation Act—India Civil Procedure Code, sections 148 and 151.

This appeal arose from the refusal of an arbitrator to supply the appellant with a copy of the arbitration proceedings which the latter required for the purpose of objecting to the award. The appellant, having unsuccessfully applied to the Supreme Court for an order that the arbitrator produce the documents required, filed an application for an extension of the time within which he might file his application to set aside the award, this application being based on the ground that without the record being available a proper application setting out the grounds of objection could not be made. His application was refused.

*Held* (19-6-56).—(1) The application for an extension of time was a "proceeding" within the meaning of section 89 of the Civil Procedure Ordinance.

(2) The application was a matter of "procedure" within the meaning of Order XLVII, rule 4 of the Civil Procedure Rules and there was no conflict between anything in those Rules and rule 7 of the Rules of Court (Proceedings in Arbitration).

(3) Order XLIX, rule 5 of the Civil Procedure Rules applied.

Appeal allowed.

[Editorial note.—In its judgment the Court again drew attention to the unnecessarily complicated and often obscure provisions of the law of Kenya relating to civil procedure.]

Cases referred to: In re the Plymouth Breweries Ltd., (1918) 1 K. B. 573; In re Oliver \* and Scott's Arbitration, (1889) 43 Ch. D. 314.

#### Khanna for appellant.

Nazareth, Q. C., and C. A. Patel for respondent.

JUDGMENT (prepared by Bacon, J. A.).—In or about the year 1954 the parties to this appeal submitted a dispute to the arbitration of a single arbitrator. The arbitrator published his award on 16th September, 1954. The present appellant then called on the arbitrator to provide him with a copy of the arbitration proceedings, which the appellant required for the purpose of objecting to the award. The arbitrator declined to furnish the copy. The appellant then filed in the Supreme Court of Kenya an application for an order requiring the arbitrator to provide the documents for which he had been asked. That application was eventually heard and refused. At the hearing of the present appeal (which is not an appeal from that refusal) we were informed by the advocate for the appellant that an appeal against that refusal is also pending before this Court.

Section 20 of the Arbitration Ordinance, Cap. 22 of the Laws of Kenya. provides that-

"The Supreme Court may make rules consistent with this Ordinance as $to$

- (a) the filing of awards and all proceedings consequent thereon or incidental thereto: - (d) generally, all proceedings in Court under this Ordinance."

Rules were accordingly made by the Supreme Court and are entitled "Rules of Court (Proceedings in Arbitration)." Rule 7 of those Rules provides as follows:-

"Any party objecting to an award filed under section 9 (2) of the Ordinance may, within eight weeks after notice of the filing thereof shall have been served upon the party so objecting, apply that the award may be remitted, or set aside as the case may be, and lodge his objections thereto, together with necessary copies and fees for serving the same upon the other parties interested."

Under that rule the time for filing an objection to the award expired on 11th November, 1954. The appellant, finding himself, as he believed, prevented from properly presenting his grounds for an order setting aside the award, made an application to the Supreme Court asking for an extension of the time within which he might file his application to set aside the award. His notice of motion relating to that second application was dated 10th November, 1954. The application was supported by an affidavit sworn by the then advocate for the appellant in which it was said (in paragraph 7): "That the time for filing objection to the award expires on the 11th day of November, 1954, and without the record being available, proper application setting out the grounds of objections cannot be made".

That second application was heard on 16th December, 1954. The advocate then appearing for the appellant argued before the learned Judge of the Supreme Court that as there was no particular rule under the Arbitration Rules authorizing an extension of time prescribed for applying to set aside an award, he must rely on the inherent jurisdiction of the Court. He also appears to have relied upon section 95 of the Civil Procedure Ordinance. According to the learned Judge's note of those proceedings, no reference was made either in argument or in the ruling to section 89 of that Ordinance. In his ruling the learned Judge held that neither section 95 nor section 97 of the Civil Procedure Ordinance applied so as to empower the Court in the present instance, and that there could be no question of invoking the powers given by Order XLIX, rule 5 of the Civil Procedure Rules since those powers were, on the face of the rule, confined to a case "where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the Court". The appellant's second application was accordingly refused and he has now appealed against that refusal.

In our view that ruling does not accord with the true effect of the relevant provisions of the Civil Procedure Ordinance and of the rules made thereunder. Section 89 of the Ordinance is in the following terms:-

"The procedure provided in this Ordinance in regard to suits shall be followed as far as it may be applicable in all proceedings in any court of civil jurisdiction."

There can be no doubt, of course, but that the appellant's application for an extension of time was a "proceeding" in a "court of civil jurisdiction". We must therefore determine the extent to which that section is applicable to the instant case.

In the first place there is Order XLVII, rule 4 which reads as follows:-

"Any special rules of procedure not contained in these rules which may have been or may be made by the Supreme Court shall, where they conflict with these Rules, prevail and be deemed to govern the procedure in the matter therein mentioned."

It appears that an application for extension of time prescribed by rules is a matter of "procedure" within the meaning of that rule. An application for an order enlarging the time for the taking of a step was made in In re The Plymouth Breweries Ltd., (1918) 1 K. B. 573, and Sankey, J., said in his judgment: "I am of opinion that the question whether the time for appealing shall be extended is a matter of practice and procedure". In In re Oliver and Scott's Arbitration, (1889) 43 Ch. D., the application was for an extension of the time prescribed for moving to set aside an award, that is to say, the same form of application as in the instant case. Kekewich, J., said (at p. $314$ ):—

"It seems to me that the time within which an application may be made is necessarily procedure. In truth, certainly a large majority of the applications which are made to the Court, and which, because of their dilatory character, are often advanced, and are called procedure summonses or procedure applications, relate to the time within which a certain thing has to be done. Therefore, that seems to me to be clearly procedure."

Thus far, therefore, Order XLVII, rule 4 might be said to apply to a case in which the Arbitration Rules were concerned, since those rules are rules made by the Supreme Court. That brings us to the final question as to the applicability of Order XLVII, rule 4 to the instant case, namely whether there is a "conflict" between the Arbitration Rules and the Civil Procedure Rules, for in that case the Arbitration Rules are to prevail and to "govern the procedure" with the result that, according to the argument for the respondent, the period of eight weeks prescribed by rule 7 must be regarded as a fixed term within which an application to set aside an award must necessarily be made. We do not, however, accept that view, for we do not think that there is any conflict between rule 7 of the Arbitration Rules on the one hand and on the other hand anything in the Civil Procedure Rules relating to the question of time in this particular instance. If the Civil Procedure Rules prescribed a period of time other than the period of eight weeks prescribed by rule 7 of the Arbitration Rules, there would, of course, be such a conflict. In our opinion there cannot be said to be a "conflict" between a rule which prescribes a period for doing of an act and another rule which in general terms empowers the Court to extend the time allowed for the taking of various steps. The true view is that the second of such rules is complementary to the first. Mr. Nazareth, for the respondent, brought to our notice section 10 of the Arbitration Ordinance, which is in these terms: -

"The time for making an award may, from time to time, be enlarged by order of the Court, whether the time for making the award has expired or not."

He argued that section expressly empowers the court to enlarge the time for the taking of one particular step, and that by inference the Ordinance prohibits the Court from enlarging the time for the taking of any other step in arbitration proceedings. We do not think that this argument is sound because section 10 was clearly required as a special provision empowering the Court to make an order which, without express provision to that effect, the court could never do, inasmuch as until an award is filed the Court has no seisin of any proceedings.

We next go to Order XLIX, rule 5, the material part of which is as follows:-

"Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the Court, the Court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require.'

Mr. Nazareth argued that this rule cannot apply because the eight weeks' period prescribed by rule 7 of the Arbitration Rules was not made "under these Rules" within the meaning of Order XLIX, rule 5, that is to say, under the Civil Procedure Rules themselves. We think, however, that Order XLIX, rule 5, does apply in the present instance, being brought in by section 89 of the Civil Procedure Ordinance. The inapplicability of Order XLVII, rule 4, does not, of course, affect the applicability of Order XLIX, rule 5.

It was submitted by Mr. Khanna for the appellant that we should have recourse also to section 95 of the Civil Procedure Ordinance. That section is in the following terms:-

"Where a period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Ordinance, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."

We do not think that this section can have any application to a case such as the present one. The expression "fixed or granted by the Court" is, in our view, fatal to any submission to the contrary. "Court" is defined in section 2 of the Ordinance as meaning "any civil Court other than Muslim Subordinate Courts". That definition seems clearly to envisage a Court sitting in its judicial capacity and could not, we think, include the Supreme Court of Kenya as a rule-making authority empowered by section 20 of the Arbitration Ordinance.

Mr. Khanna also prayed in aid section 97 of the Civil Procedure Ordinance, which saves "the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court". In our view there is no necessity to decide this point inasmuch as the other provisions of the Ordinance and of the rules made thereunder, to which we have already referred, suffice for present purposes. In particular, we need not decide whether the effect of this section as regards time prescribed by a statute is the same as its effect as regards time prescribed by a statutory rule.

It remains to mention two further submissions made by Mr. Nazareth for the respondent. First, he cited a number of Indian decisions to the effect that Indian Courts have no power to extend a period of time prescribed by the Indian Limitation Act. Those decisions are undoubtedly to that effect, but the position in India and that in Kenya are markedly different as regards this particular category of procedure. Section 148 of the Indian Civil Procedure Code corresponds exactly with section 95 of the Civil Procedure Ordinance of Kenya, and section 151 of the former with section 97 of the latter. In India no power is given to the Court, either by statute or by statutory rule, to extend a period of time which is prescribed by any rules. But in Kenya we have, in addition to sections 95 and 97, Order XLIX, rule 5, and a number of rules which prescribe the time for the doing of various acts. Accordingly, the line of Indian decisions to which Mr. Nazareth has referred is not, we think, the answer to the question which we are now called upon to decide.

Later, Mr. Nazareth submitted that, in the event of our being against him on his submissions regarding the construction of the Kenya Ordinances and Rules made thereunder, we should look at the material which was before the learned Judge of the Supreme Court against whose ruling the present appeal has been brought, and that we should come to the conclusion that if the appellant's application for extension of time is allowed to proceed to a hearing on its merits it is bound to fail. But we must decline to look at that material for two reasons; first, because: it is not for this Court to deal with the matter on its merits on the present appeal, and secondly, we must bear in mind the possibility that if the application were sent back to the Supreme Court to be heard on its merits, the material which would then be before that Court would not necessarily be limited to that which was previously before it, for the result of the other appeal which is now pending (to which reference has already been made in this judgment) might be that additional material became available to the appellant. For that reason it is unnecessary to consider the cases in Vol. 2 of the English and Empire Digest which Mr. Nazareth cited on this point. Accordingly, this appeal will be allowed. We conclude by once more drawing attention to the unnecessarily complicated and often obscure provisions of the law of Kenya relating to civil procedure. Here again is a case in which-to adopt the words of Worley, President, in his judgment in Bhagat Singh v. Ramanlal P. Chauhan and others, Civil Appeal No. 98 of 1954 time and money have been consumed in "arid discussions on highly technical points" before the substance of the matter can be considered. Such a state of affairs is in our view detrimental to the public interest in general and to the rightful claim of any given litigant to have the merits of his case investigated by the Courts as speedily and inexpensively as possible. We respectfully endorse the learned President's suggestion made in his judgment to which we have referred. The form which the order of this Court should take will now be a matter for submissions at the Bar.