[1955] EACA 307
The Court of Appeal determined that it had no jurisdiction to extend the statutory time limit for applications for leave to appeal to the Privy Council, as prescribed by section 4 of the Eastern African (Appeal to Privy Council) Order-in-Council, 1951. The applicant's motion was filed outside the sixty-day period...
Source-derived case information.
- Citation
- [1955] EACA 307
- Parties
- Applicant: M. K. Shah (Proprietor of Manilal & Company); Respondent: The Jethabhai Oil Mills & Soap Factory Limited
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Civil Application No. 4 of 1955
- Procedural Posture
- Civil Application / Application for Leave to Appeal to Privy Council
- Outcome
- application dismissed
- Judges
- Macduff J, Nihill P, Worley VP
- Legal Topics
- Leave to Appeal, Extension of Time, Final Vs Interlocutory Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M. K. Shah (Proprietor of Manilal & Company)
Applicant
The Jethabhai Oil Mills & Soap Factory Limited
Respondent
Procedural Posture
Civil Application / Application for Leave to Appeal to Privy Council
Legal Issues
- 1 Whether the Court of Appeal has power to extend time for an application for leave to appeal to the Privy Council under the Eastern African (Appeal to Privy Council) Order-in-Council, 1951.
- 2 Whether the decision of 4th April, 1955, was a final judgment permitting leave to appeal under section 3(b) of the Order-in-Council.
- 3 Whether the Court should exercise its discretion to grant leave to appeal in this case.
Ratio Decidendi
The Court of Appeal determined that it had no jurisdiction to extend the statutory time limit for applications for leave to appeal to the Privy Council, as prescribed by section 4 of the Eastern African (Appeal to Privy Council) Order-in-Council, 1951. The applicant's motion was filed outside the sixty-day period and was therefore incompetent. Furthermore, the decision of 4th April, 1955, was not a final judgment, as it could have been reviewed by a full court, and thus did not qualify for discretionary leave under section 3(b) of the Order-in-Council. The Court upheld the respondent's preliminary objections and dismissed the application with costs, finding no basis to exercise its...
Court Disposition
application dismissed
Orders
- Application for leave to appeal to the Privy Council is dismissed with costs.
Full Case Text
Judgment text and source record
18 paragraphs
## COURT OF APPEAL FOR EASTERN AFRICA
Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and MACDUFF, J. (Kenya)
## M. K. SHAH (Proprietor of Manilal & Company), Applicant
## THE JETHABHAI OIL MILLS & SOAP FACTORY LIMITED, Respondent Civil Application No. 4 of 1955
Application for leave to appeal to Privy Council—Application made out of time— Application for leave to appeal to Privy Council from order of Judge in Chambers-Eastern African (Appeal to Privy Council) Order-in-Council, 1951, sections 3 (b) and 4—Eastern African Court of Appeal Rules, 1954, rule $73$ (4).
An appeal having been listed for hearing on 4th February, 1955, the Court (Worley (Vice-President), O'Connor, C. J., and Jenkins, J. A.) were present as was the respondent's advocate, but the appellant (the present applicant) was absent. The appeal was dismissed without prejudice to any application for reinstatement made under rule 73 (4) of the Eastern African Court of Appeal Rules, 1954.
On 4th April, 1955, Briggs, J. A., dismissed an application by the applicant to set aside the said dismissal of 4th February, 1955.
Section 4 of the aforesaid Order-in-Council provides: "Applications to the Court for leave to appeal shall be made by motion or petition within sixty days from the date of the judgment to be appealed from..." and the motion was filed more than sixty days after 4th February, 1955.
Section 3 (b) of the same Order-in-Council provides: "Subject to the provisions of this order, an appeal shall lie $(b)$ at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the appeal is one which, by reason of its great general or public importance or otherwise, ought to be submitted to His Majesty in Council for decision".
Held (21-7-55).—(1) The Court of Appeal has no power, under the Eastern African (Appeal to Privy Council) Order-in-Council, 1951, to extend the time for an application for leave to appeal to the Privy Council.
(2) The decision of 4th April, 1955, was not a final judgment as it could have been reviewed, upon application, by a full court, and the case was not one where the Court ought to exercise its discretion under section 3 $(b)$ of the said Order-in-Council.
Application dismissed.
Case referred to: Dagnino v. Bellotti (1886) 11 A. C. 604.
Applicant in person.
C. A. Patel for respondent.
JUDGMENT (delivered by Nihill (President)).—We must uphold the preliminary objections submitted by the respondents to this application for leave to appeal to the Privy Council. In addition to defects in form, the applicant is out of time with his application for leave to appeal against the judgment of this Court, dated 4th February, 1955, and this Court has no power under the East African (Appeal to Privy Council) Order-in-Council, 1951, to extend time.
As regards the applicant's application for leave to appeal against the decision of Mr. Justice Briggs, dated 4th April, 1955, that decision was not a final judgment, as the applicant could have had it reviewed by the full Court. This step he has not taken. This case is obviously one in which this Court should not exercise the discretion given us under section 3 $(b)$ of the Order-in-Council.
This application is accordingly dismissed with costs.