Wakilii

Dave v Lakhani (Civil Appeal No. 1151 of 1951)

East African Court of Appeal · [1955] EACA 132 · 1955 Appeal Abated AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Rent Control Board decision following remission for procedural compliance; appellant died before final disposal
Decision
Appeal abated by operation of law upon death of appellant; widow wrongly brought on record as cause of action did not survive

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that abatement under Order 23 of the Civil Procedure (Revised) Rules 1948 operates by law, not by court order. The appeal abated ipso lege upon the appellant's death on 1 January 1954. The original claim for allocation of shop space was purely personal to the appellant and did not survive his death. The appellant's widow was wrongly brought on record as the cause of action could not survive. Each party was ordered to bear its own costs as neither side correctly appreciated the meaning of abatement.

Outcome

Appeal abated by operation of law upon death of appellant; widow wrongly brought on record as cause of action did not survive

Facts

The appellant was non-suited by the Rent Control Board in a claim for allocation of new shop space to replace demolished premises where he had been a sub-tenant. He appealed and obtained an order on 5 December 1951 remitting the case back to the Board on a procedural matter, with costs of remission to be borne by the respondent and other costs reserved. The Board complied and sent the appeal back to the Appeal Court for final disposal. Before the appeal could be heard, the appellant was shot dead by terrorists on 1 January 1954. On 7 July 1954, the appellant's widow obtained an ex parte order bringing herself on record as appellant in place of her deceased husband. The respondent then sought dismissal of the appeal with costs.

Issues

  1. Whether an appeal abates by operation of law or requires an order of the Court upon the death of an appellant.
  2. Whether the cause of action survived the death of the appellant where the original claim was personal in nature.
  3. Whether the appellant's representative was properly brought on record after the appellant's death.
  4. What costs order should be made where an appeal has abated.

Orders

  • The appeal abated after 1st January 1954.
  • Each side to bear its own costs in the appeal and in the remission before the Rent Control Board.

Rules and key headnotes

Civil Procedure — Abatement — Operation by Law
Abatement under Order 23 of the Civil Procedure (Revised) Rules 1948 operates by law and not by order of the Court.
Civil Procedure — Abatement — Death of Party — Personal Cause of Action
Where the original claim is purely personal to the claimant, the cause of action does not survive the claimant's death and the appeal abates ipso lege.
Civil Procedure — Abatement — Distinction from Dismissal
An abatement is not tantamount to a dismissal of a suit or appeal; a clear distinction is made between the two in Order 23 rules 1, 4(3), and 8(1) and (2) of the Civil Procedure (Revised) Rules 1948.
Civil Procedure — Abatement — Scope — Appeal versus Original Suit
Where a party dies pending appeal without a legal representative being properly joined, it is the appeal which abates and not the original suit or order.

Legislation cited (4)

  • Civil Procedure (Revised) Rules 1948 Order 23 rule 1
  • Civil Procedure (Revised) Rules 1948 Order 23 rule 4(3)
  • Civil Procedure (Revised) Rules 1948 Order 23 rule 8(1)
  • Civil Procedure (Revised) Rules 1948 Order 23 rule 8(2)

Full judgment

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

Dave v Lakhani (Civil Appeal No. 1151 of 1951) [1955] EACA 132 (1 January 1955)
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.