Wakilii

Bujra v Abdulla (Civil Appeal No. 106 of 1952 (Mornbsá))

East African Court of Appeal · [1954] EACA 116 · 1954 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from judgment of Liwali's Court at Malindi
Decision
Judgment varied by setting aside the costs order for the disallowed portion of the claim; otherwise judgment of the Liwali's Court affirmed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The magistrate had power under section 11 to transfer the suit but the order was irregular. However, section 16 precluded the appellant from raising the jurisdictional objection on appeal where he had consented to jurisdiction below and there was no want of inherent jurisdiction. The distinction is between want of jurisdiction (which cannot be waived) and irregular assumption of jurisdiction (which can be waived). The finding on facts was not perverse. The costs order against the plaintiff for the disallowed portion was improper absent special reasons and was set aside.

Outcome

Judgment varied by setting aside the costs order for the disallowed portion of the claim; otherwise judgment of the Liwali's Court affirmed

Facts

The plaintiff sued the defendant in the First Class Magistrate's Court at Malindi for Sh. 447/60 being the unpaid balance for goods supplied. After summons was issued, the defendant's Wakil applied for transfer to the Liwali's Court on grounds that he had no licence to appear in the magistrate's court and the defendant did not understand Kiswahili. The magistrate transferred the suit without consulting the plaintiff. The case was tried in the Liwali's Court without objection. The Liwali gave judgment for the plaintiff for Sh. 217/60 only, disallowing Sh. 230 relating to five bags of posho which the plaintiff failed to prove were sold and delivered. The Liwali ordered the plaintiff to pay the defendant's costs in respect of the disallowed portion. The plaintiff appealed.

Issues

  1. Whether the First Class Magistrate had power to transfer the suit to the Liwali's Court under section 11 of the Civil Procedure Ordinance.
  2. Whether the transfer order was irregular having been made after the magistrate assumed jurisdiction by issuing summons.
  3. Whether section 16 of the Civil Procedure Ordinance precluded the appellant from objecting to jurisdiction on appeal where no objection was taken in the court below.
  4. Whether the Liwali's finding against the plaintiff for part of his claim was against the weight of evidence.
  5. Whether the Liwali erred in law in awarding the defendant costs in respect of the disallowed portion of the claim.

Orders

  • Appeal allowed in part.
  • The order that the plaintiff pay the defendant's costs in respect of the disallowed portion of the claim (Sh. 230) is set aside.
  • The respondent to pay one-half of the appellant's costs of the appeal.
  • The order of 13 November 1953 that the plaintiff have costs of the adjournment in any event is unaffected.

Rules and key headnotes

Civil Procedure — Transfer of Suits — Power of Magistrate under Section 11
A First Class Magistrate has power under the first proviso to section 11 of the Civil Procedure Ordinance to return a plaint for presentation in a court of lower grade if in his opinion there is no point of law involved or no other good and sufficient reason for instituting the suit in his court.
Civil Procedure — Transfer of Suits — Irregular Exercise of Power
It is irregular for a magistrate to make a transfer order under section 11 after assuming jurisdiction by issuing summons and without expressing the opinion required by the proviso that there is no point of law involved or good and sufficient reason for the suit being in his court.
Civil Procedure — Objections to Jurisdiction — Section 16 — Waiver by Consent
Where a court has inherent jurisdiction to try a suit but irregularly assumes jurisdiction, section 16 of the Civil Procedure Ordinance precludes a party from objecting to the place of suing on appeal if no objection was taken in the court below, as irregular assumption of jurisdiction may be waived by consent.
Civil Procedure — Jurisdiction — Distinction between Want of Jurisdiction and Irregular Assumption
There is a distinction between want of inherent jurisdiction (which cannot be waived and renders proceedings a nullity) and irregular exercise or assumption of jurisdiction (which may be waived and renders a decree voidable but not void). Where a court erroneously assumes jurisdiction over a suit which it has inherent jurisdiction to try, its decree may be set aside but cannot be treated as a nullity.
Civil Procedure — Costs — Partial Success — Discretion
Where a plaintiff succeeds on part of his claim and fails on another part, an order that the plaintiff pay the defendant's costs in respect of the disallowed portion is improper in the absence of special reasons justifying such an order.

Legislation cited (4)

  • Civil Procedure Ordinance s.11
  • Civil Procedure Ordinance s.16
  • Civil Procedure Ordinance s.17
  • Indian Civil Procedure Code s.21

Cases cited (2)

  • Ledgard v Bull (1887) 13 IA 134
  • Meenakshj Naidu v Subramania Sastri (1887) 14 IA 160

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bujra v Abdulla (Civil Appeal No. 106 of 1952 (Mornbsá)) [1954] EACA 116 (1 January 1954)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.