[1943] EACA 1

# COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda) and MARK WILSON, Ag. C. J. (Tanganyika)

## CHANDUBHAI HATHIBHAI PATEL, Appellant (Original Defendant)

# GEORGE TAYLOR. Respondent (Original Plaintiff) Civil Appeal No. 18 of 1942

Appeal from decision of Acting District Registrar, Kisumu, Kenya.

Procedure—Civil action—Application under Order XXXIII, Rule 2—Final judgment—Decision of District Registrar—Appropriate Court of Appeal-Civil Procedure Ordinance, Sections 83 and 66—Jurisdiction of District Registrar—Order XLIV, Rules 6 and 7—Order XLVI.

In a suit brought upon a dishonoured cheque the Acting District Registrar upon the application of the plaintiff under Order XXXIII Rule 2 of the Civil Procedure Rules 1927 had regard to the provisions of Order XLIV Rule 6 of these Rules and entered judgment with costs for the plaintiff for the amount claimed. The defendant had not filed any answering affidavit but he had been served, and was not present nor represented at the hearing before the Acting District Registrar.

The appeal was lodged on the grounds that the defendant had entered and was not in default with his defence and that the Acting District Registrar was not empowered to enter judgment.

Held (18-2-43). (1) That the Acting District Registrar in pronouncing final judgment purported to carry out duties conferred upon him by section 83 of the Civil Procedure Ordinance, and which were ordinarily performed by a Judge of the Supreme Court. Under the Civil<br>Procedure Ordinance section 66 an appeal from that decision lay to the Court of Appeal<br>for Eastern Africa and not to the Supreme Court.

(2) That under Order XLVI Rule 2 (1) and (2) the Acting District Registrar had no jurisdiction to enter judgment in the circumstances of the case.

(3) That under Order XLIV Rules 6 and 7 the Acting District Registrar had no jurisdiction to enter judgment in the circumstances of the case.

The appeal was allowed with costs.

#### Burke for the Appellant.

#### Khanna for the Respondent.

SIR JOSEPH SHERIDAN, C. J.—The District Registrar, Kisumu, passed the following judgment: "No answering affidavit having been filed by the defendant, and having in view the provisions of O. XLIV, r. 6, I enter judgment upon application of plaintiff of 30-9-42 ex parte defendant as prayed. Costs of application to plaintiff". From this judgment the defendant has appealed to this Court on two grounds, one of which is:

"That the District Registrar was not empowered by law to sign and enter judgment in the circumstances of this case, viz. that the defendant—Appellant had entered and was not in default with his defence and the District Registrar erred in law in so signing and entering judgment."

Mr. Khanna for the respondent at the hearing of the appeal raised a preliminary point that no appeal lay to this Court—that the appellant should have appealed to the Supreme Court. I find no substance in this point. The District Registrar in

pronouncing judgment—and there can be no question that it was a final judgment—purported to exercise judicial duties conferred upon him by virtue of section 83 of the Civil Procedure Ordinance; in other words he purported to carry out duties which would ordinarily be performed by a judge of the Supreme Court. In the event of a party being aggrieved by his decision, unless it can be shown to the contrary, an appeal would lie to the Court of Appeal for Eastern Africa and not to the Supreme Court. Section 66 of the Ordinance which provides "Unless otherwise expressly provided in this Ordinance an appeal shall lie from the decrees and from the orders of the Supreme Court to the Court of Appeal for Eastern Africa" applies.

The question then is whether the District Registrar had jurisdiction to pronounce judgment. Under Order XLVI as amended it is provided:

"Judgment may, on application in writing, be entered by the Registrar in the following cases:

2. (1) In uncontested cases, where the plaint is drawn claiming a liquidated amount and either $(a)$ the defendant has not entered such appearance as may be prescribed, or $(b)$ the defendant, having entered such appearance, has failed to file a defence within the time prescribed.

(2) In all other cases in which the parties consent to judgment being entered in agreed terms".

It is conceded on behalf of the respondent that the District Registrar had no jurisdiction in the circumstances of the case under Rule 2 (1) and with this I agree. And as for any suggestion that the case could come within the provisions of Rule 2 (2) I fail to see how it could, for the parties did not consent to judgment being entered.

I shall no proceed to a consideration of Rules 6 and 7 of Order XLIV under which the Registrar purported to act which respectively provide: —

"6. In a suit proceeding in a District Registry all formal steps preliminary to the trial and all interlocutory applications shall, in the absence of a judge, be made and taken before the District Registrar; and when such suit is ready for trial it may be set down for hearing before a judge sitting at the place of the Registry.

7. Any person affected by any Order or decision of a District Registrar made in any preliminary step or upon an interlocutory application may appeal to a judge. Such appeal may be made notwithstanding that the order or decision was in respect of a proceeding or matter as to which the District Registrar had jurisdiction only by consent. Such appeal shall be by way of indorsement upon the record by the District Registrar at the request of any party within fourteen days from the making of such order or decision. The record bearing such indorsement shall forthwith be sent to the Registrar of the Supreme Court who shall give such directions for the hearing of the appeal as he may consider reasonable. The hearing shall be before a judge sitting in chambers."

On the face of Rule 6 it is obvious that no assistance for the respondent's case can be derived therefrom. Nor am I able to discover any hope for the respondent in Rule 7. The first three lines of the Rule clearly refer to a preliminary step or an interlocutory application. As for the next four lines "Such appeal may be made notwithstanding that the order or decision was in respect of a proceeding or matter as to which the District Registrar had jurisdiction only by consent." I confess that I have difficulty in giving a meaning to them, but that is of no importance for whatever they may mean they cannot be read so as to give jurisdiction to the District Registrar to pronounce a final judgment where there

has been no consent by the parties (see Order XLVI, rule 2 (2)) and if there had been consent by the parties to enter judgment no appeal would lie from the decision (see section 67 (2) of the Civil Procedure Ordinance).

I would allow the appeal with costs here and costs incidental to the proceedings before the District Registrar (if any) and order that the judgment be set aside. As a particular date is mentioned, the 6th October, 1942, in the notice issued prior to the judgment which has been declared *ultra vires*, it is necessary that a fresh notice should issue for another date. No court fees to be charged in connexion with this notice.

Sir Norman Whitley, C. J.:

$I$ concur.

Mark Wilson, Ag. C. J.:

This is an appeal by the defendant from a judgment and decree of the District Registrar, Kisumu. The judgment was entered in purported exercise of powers given to him by Order XLIV, rule 6 of the Civil Procedure Ordinance in the circumstances mentioned in the judgment of the learned President.

The preliminary point raised by the respondent that no appeal lay to this Court seems to be based upon a misinterpretation of Order XLIV, Rule 7, of the Civil Procedure Ordinance. It is well settled law that appeal is the creature of statute, that is that there is no appeal against a judicial decision unless the right is specifically created by some enactment. Now section 66 of the Ordinance creates a right of appeal "from the decrees and from the orders of the Supreme Court" and the tribunal to which such appeal lies is the Court of Appeal for Eastern Africa "unless otherwise expressly provided in this Ordinance". The respondent's Counsel submits that such an express provision is contained in Rule 7 of Order XLIV of the Ordinance. That is so, but it is of course necessary to examine the scope of the provision. The relevant part of the rule reads as follows: "Any person affected by any order or decision of a District Registrar made in any preliminary step or upon an interlocutory application may appeal to a judge. Such appeal may be made notwithstanding that the order or decision was in respect of a proceeding or matter as to which the District Registrar had jurisdiction only by consent". The question then is whether the District Registrar's entering of final judgment in the present case is an appealable "order or decision" within the scope of this rule.

Counsel's argument seems to be that while the first sentence of Rule 7 gives a right of appeal to a judge from any order or decision of the District Registrar made in any preliminary step or on any interlocutory application, the second sentence of the rule creates a further right of appeal in matters other than preliminary steps or interlocutory applications. I cannot concur in this interpretation of the language used. If there is one thing which is perfectly clear it is that the first sentence of Rule 7 (quoted above) refers back and relates solely to the special powers and directions given in Rule 6 as to the conduct of business by the District Registrar in the absence of a judge. Rule 6 reads:-

"6. In a suit proceeding in a District Registry all formal steps preliminary to the trial and all interlocutory applications shall, in the absence of a judge, be made and taken before the District Registrar; and when such suit is ready for trial it may be set down for hearing before a judge sitting at the place of the Registry."

The first sentence of Rule 7 gives a right of appeal against the District Registrar's orders and decisions in such matters as the District Registrar has dealt with under Rule 6. The second sentence runs: "Such appeal may be madenothwithstanding that the order or decision was in respect of a proceeding or

matter as to which the District Registrar had jurisdiction only by consent." The words "such appeal" clearly refer and relate solely to the right of appeal created in the previous sentence, i.e. an appeal to a judge against "any order or decision of a District Registrar made in any preliminary step or upon an interlocutory application", for the use of the definite article before the words "order or decision" later in the sentence points back to the phrase used in the previous sentence: "any order or decision of a District Registrar made in any preliminary step or upon an interlocutory application". The words "proceeding or matter" therefore do not, as the respondent's counsel argued, enlarge the scope of the right of appeal given in the first sentence to make it include matters which cannot be properly described as "formal steps preliminary to the trial and all interlocutory applications" which is the limitation imposed by Rule 6 to the nature of the matters with which the District Registrar must deal in he absence of a judge. It merely makes it clear that the right of appeal is not confined to matters with which the District Registrar had a statutory right to deal, but extends to other matters with which he has dealt by a consent of parties. Such matters, however, must still pass the test of being "preliminary steps" or "interlocutory applications" in view of the way the first two sentences of Rule 7 dovetail together, as pointed out above. It is unnecessary here to inquire what situation the second sentence of Rule 7 was intended to deal with, i.e. to suggest what proceedings or matters of a preliminary or interlocutory nature are within the jurisdiction of the District Registrar only by consent. It is sufficient to give the language used its plain and obvious meaning reading Rule 7 as a whole, as is must be read.

Council for the respondent has, however, suggested that the decision of the District Registrar, entering the judgment which is the subject matter of this appeal, is such a proceeding or matter as this second sentence of Rule 7 was intended to cover. I see two objections to this argument. One is that the entering of judgment is not an order or decision on a preliminary step or an interlocutory application. The second is that, even if it was there was no consent in this case, and consent is essential under the wording of the rule. It is not denied that under Order XLVI, Rule 2 (2) of the Ordinance the District Registrar could enter judgment if the parties consented to its being entered in agreed terms, but here there was no consent. Counsel seeks to surmount this difficulty by asking the Court to read the words "had jurisdiction only by consent" in the second sentence of Rule 7 as if they were "could (or might) have had jurisdiction only by consent". To my mind that is impossible without importing into the rule something which is not there and giving a strained and unnatural interpretation to the language used.

In my opinion therefore Order XLIV, Rule 7, gives no right of appeal to the Supreme Court in such a matter as this and appeal therefore lies to this Court under section 66. I may add that I can see no substance whatever in the somewhat specious argument that if the decree was made by the District Registrar without jurisdiction appeal does not lie to this Court under section 66 because the decree is invalid and therefore no decree at all. It purports to be a decree, is made by an officer of the Court who is entitled in certain circumstances to pass decrees, and is valid unless and until it is set aside by an appellate court. Counsel also tried to make the point that it is only decrees passed by a Judge of the Supreme Court (as opposed to those made by Registrars under the special powers conferred on them) which are appealable to this Court. There is equally no substance in that; no such limitation is contained in section 66 of the Ordinance.

As regards the appeal proper, counsel conceded that the District Registrar had no power to enter judgment under Order XLVI, Rule 2, which lays down the circumstances in which judgment may be entered by Registrars. As far as I can find in the Ordinance Rule 2 is comprehensive and I can find nothing in

Order XLIV, rr 6 and 7, which gives a Registrar or District Registrar power to enter judgment. Counsel's argument in this respect was based entirely on the submission that the entering of judgment under Order XXXIII was an interlocutory matter. He based this submission largely on a comparison of the local procedure under Order XXXIII with that under Order XIV of the Rules of the Supreme Court in England and on a supposed analogy between the powers of a Registrar in this country and those of a Master in England. It is unnecessary here to enter in detail into the many differences in procedure and powers which make such a comparison valueless and render any analogy based thereon erroneous. Suffice it to say that an order by a Master under Order XIV giving leave to enter judgment is a very different thing from an actual pronouncement of final judgment by a Registrar, which in my opinion cannot be called in any sense an interlocutory proceeding.

The position as I see it is that Registrars or District Registrars have power conferred on them to enter judgment in certain cases under Order XLVI. The circumstances of the present case did not fall within the scope of that Order. There is no power conferred on a District Registrar by Order XLVI to enter judgment in cases under Order XXXIII or otherwise. The purported exercise of such a power in this case by the District Registrar, Kisumu, was therefore ultra vires and the judgment and decree must therefore be set aside and the case remitted to the District Registrar to be dealt with according to law

I concur in the learned President's view that the appeal should be allowed and in his order as to costs.