[1955] EACA 295

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Vice-President), SIR ENOCH JENKINS, Justice of Appeal and Briggs, Justice of Appeal.

NAND SINGH, trading in the firm name or style of SETTLERS SERVICE (GARAGE) VEHICLE MECHANIC, Applicant (Original Plaintiff)

## HARI SINGH s/o HARNAM SINGH, Respondent (Original Second Defendant) Civil Appeal No. 42 of 1954

(Petition for leave to file appeal out of time from decision of H. M. Supreme Court of Kenya, Mayers, J.)

Appeal—Time—Prejudice—Eastern African Court of Appeal Rules, 1925, rule 9.

The applicant sued (a) A, & M, and (b) the respondent in the Supreme Court for the cost of the repair of a motor vehicle, his claim being laid alternatively against them. He obtained judgment against A. & M. and the suit was dismissed against the respondent.

A. & M. appealed, the only respondent being the petitioner, who did not join the respondent in the appeal by notice to vary, or cross-appeal and consolidation. The appeal was allowed on the facts.

The applicant then filed the instant petition for leave to appeal out of time against the respondent and for consequential directions, and the petition was opposed on two grounds, the second being prejudice.

Held (7-4-55).—The real dispute in the litigation being "Who ordered the repairs?" and the appellant having stood on the Supreme Court judgment instead of taking steps to join the respondent in the appeal proceedings brought against him by A. & M., the respondent would be gravely handicapped in having to come before the court and argue that its previous judgment was wrong.

Petition dismissed with costs.

Cases referred to: In re Berkeley. decd. (1945) Ch. D. 1; Dollfus v. Bank of England (1950) 2 A. E. 605; Esdaile v. Payne (1889) 59 L. J. R. 910; Bentley Motors (1931) Ltd. v. Lagonda Ltd. (1945) 114 L. J. Ch. D. 208; Keith v. Wigfull Trade Marks (1919) Ch. D. 52.

Khanna for applicant.

Swaraj Singh for respondent.

JUDGMENT (read by BRIGGS, J. A.).—This was an application for leave to appeal out of time in the following rather unusual circumstances. The applicant sued two men called Abdulla and Mzee and the respondent for the cost of certain repairs to a motor vehicle. His case was that either Abdulla and Mzee jointly or the respondent was liable to him, the claim being clearly laid in the alternative. The Supreme Court of Kenya gave judgment as prayed against Abdulla and Mzee and dismissed the suit as against the respondent. He had filed a defence, but did not appear at the trial, and no order for costs was made in his favour.

Abdulla and Mzee appealed to this Court, the present applicant, Nand Singh, being the sole respondent. We quote from the judgment of Briggs, J. A., given in the appeal, with which the other members of the Court agreed:

"The respondent took the preliminary point that Hari Singh should have been made a party to the appeal and asked the court to direct that the appellants should serve him with the proceedings and that the appeal should be stayed pending his appearance. We overruled this objection. It is apparent that the appellants were only concerned in the appeal to have the judgment against themselves reversed. They were in no way interested in the order dismissing Hari Singh from the case and no order for which they asked could in any way affect Hari Singh. The respondent was primarily concerned in supporting the judgment of Mayers, J., against the appellants; but he desired, in the event of that judgment being reversed, to be able to say that the dismissal of Hari Singh from the suit was erroneous and that judgment ought to be entered in his favour against Hari Singh. It is clear that this issue was one to be raised, if at all, by the respondent. I do not wish expressly to decide whether he could have raised it by serving on Hari Singh, under rule 30 of the East African Court of Appeal Rules, 1925, a notice of intention to ask for variation of the order, or whether it would have been necessary to file a cross-appeal and apply for consolidation; but by one or other of these methods he could have brought Hari Singh before us and would then have been able, in the event of the appellant's success, to ask that judgment be entered against Hari Singh. He did not choose to adopt that course, but it does not in the least follow that he can now force the appellants to make Hari Singh a respondent. Certainly we could not, as the matter stands, make any order against Hari Singh, and it may be that the respondent will fall between two stools; but if so it will be his own fault and not the appellants'. We offered Mr. Khanna the opportunity even at this late stage to issue a notice to vary and serve it on Hari Singh, but he declined this offer."

The appeal was allowed on the facts, the court holding that, whether or not Hari Singh had made himself liable to Nand Singh for the cost of the repairs, the appellants had not. The appeal was heard on 5th and 7th April, 1954. Judgment was reserved and was given on 14th May, and the formal order was sealed on 2nd June. On 20th April Nand Singh filed as an interlocutory proceeding in the appeal an application to a single Judge of the court ex parte for leave to cross-appeal against Hari Singh and consequential directions. For reasons not explained this application was not heard till 20th May, after judgment had been delivered. The application was dismissed.

Nand Singh then filed, on 10th June, 1954, after the decree had been extracted. a petition for leave to appeal out of time against Hari Singh and consequential directions. The proposed ground of appeal stated in the affidavit in support was as follows: —

"That the Court of Appeal, having held in Civil Appeal No. 18 of 1953, Abdulla & Mzee v. Nand Singh, trading in the firm name or style of Settlers Service (Garage) Vehicle Mechanic that the correct conclusion from the evidence in the case was that repairs were done on the credit of the respondent the dismissal of the said respondent from the suit should be set aside, and the suit should be decreed against him."

Apart from all other objections, this misstates the facts. This Court held, or found as a fact, that the appellants were not liable to Nand Singh, and that the evidence indicated a probability that the repairs were done on the credit of Hari Singh; but it was careful not to go further.

The petition was opposed on two grounds, delay and prejudice. It is not necessary to discuss the first, since we were clearly of opinion that the application must be refused on the second. The real dispute in this litigation was always, "Who ordered the repairs?" On the appeal the appellant's case was: "The court below was wrong in saying that we ordered them." In support of this they would urge that Hari Singh ordered them, but that was no part of their case, except as a matter of argument and persuasion. At that stage the applicant had two courses open to him. He could say: "I do not care whether the Supreme Court was right or not, so long as I get judgment against one party or the other." In that case he could have joined Hari Singh by notice to vary, or cross-appeal and consolidation, and let Hari Singh support the judgment. The issue would then have been fought out between the parties directly interested. If Hari Singh had succeeded, the court would almost certainly have made a "Bullock" order as regards his costs. Alternatively Nand Singh could say: "I stand on the Supreme Court's judgment, although, if it is reversed, I shall have no judgment against anyone." This he deliberately elected to do, although we pointed out the risks and told him how they could be avoided. We then assumed that Hari Singh was out of the matter for good and all. The argument on the facts was lengthy and complex, but the court formed a clear view of them. Whether its opinion would have been different if Hari Singh had been present and argued in support of the judgment is a matter of speculation, but if Hari Singh had to come before the court now and argue that our previous judgment was wrong and the Supreme Court's right, he would clearly be very gravely handicapped in fact, although in theory there would be nothing to prevent his succeeding. We think there was one<br>time, and one only, when Hari Singh's position could fairly and properly be considered by this Court. Counsel in his discretion refused to allow it to be considered then. He says now that this was an error of judgment on his part for which his client should not suffer; but we think this is one of the many cases where counsel's decision binds the client for better or worse. Either Nand Singh or Hari Singh must suffer, and we thought it should be Nand Singh, whose -counsel was responsible. We dismissed the petition with costs.