Wakilii

Hodgson and Simpson Ltd v Sheriff Devji and Sons (C.A. 5-1926.)

East African Court of Justice · [1928] EACJ 2 · 1928 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for revocation of conditional leave to appeal to Privy Council following failure to provide security
Decision
Application granted; costs awarded to respondent; rule of practice established for future cases

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

When time allowed for providing security elapses without compliance, proceedings for appeal ipso facto fail and no formal revocation order is necessary. Courts granting conditional leave to appeal should make orders as to costs at that time, providing that if conditions are not fulfilled the applicant must pay the opposite party's costs.

Outcome

Application granted; costs awarded to respondent; rule of practice established for future cases

Facts

In December 1926, the Court dismissed an appeal by Sheriff Devji & Sons against a Supreme Court of Kenya decision. The appellants applied for leave to appeal to the Privy Council, which was granted on 10 June 1927 subject to providing security of £750 within one month. Hodgson & Simpson Ltd, the respondents, appeared by counsel at the application hearing but no costs order was made. The appellants failed to provide the required security. The respondents then applied for revocation of the conditional leave order, seeking certainty about the appeal's status and recovery of their costs of appearing at the leave application.

Issues

  1. Whether a formal order of revocation is necessary when an appellant fails to provide security within the time allowed for conditional leave to appeal.
  2. Whether and how costs of an application for leave to appeal should be dealt with when the appellant fails to fulfil the conditions.

Orders

  • Application treated as an application for costs.
  • Appellant to pay respondent their costs of the application for leave to appeal and of this application.
  • Rule of practice established: respondents appearing on applications for leave to appeal must ask the Court to make an order as to their costs at that time, failing which costs of any further application for costs will be disallowed.

Rules and key headnotes

Appeals — Conditional Leave to Appeal — Failure to Provide Security — Effect
When the time allowed for providing security required as a condition of leave to appeal elapses without the appellant providing such security, the proceedings with a view to appeal ipso facto fail and the appellant cannot obtain final leave to appeal.
Appeals — Conditional Leave to Appeal — Revocation — Necessity
Where an order for conditional leave to appeal has lapsed due to failure to fulfil conditions, no formal order of revocation is necessary as the original order has already lapsed by operation of law.
Costs — Applications for Leave to Appeal — Timing of Costs Orders
The proper and convenient course is for the Court granting conditional leave to appeal to make an order for costs at that time, providing that if the applicant fulfils the conditions the costs abide further order, and if conditions are not fulfilled the applicant must pay the opposite party the costs of the application.
Practice and Procedure — Costs — Duty to Request Costs Order
When respondents appear upon an application for leave to appeal, they should ask the Court to make an order as to their costs, and should they fail to do so their costs of any further application for costs should be disallowed.

Legislation cited (4)

  • Order-in-Council Art.5
  • Order-in-Council Art.8
  • Order-in-Council Art.17
  • Order-in-Council Art.18

Cases cited (1)

  • Civil Appeal No. 9 of 1925

Full judgment

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Hodgson and Simpson Ltd v Sheriff Devji and Sons (C.A. 5-1926.) [1928] EACJ 2 (1 January 1928)
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.