Wakilii

Mohamed v Lobo (C.A. 5-1935.)

East African Court of Appeal · [1935] EACA 58 · 1935 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to Court of Appeal for stay of proceedings pending appeal against Receiving Order in bankruptcy
Decision
Conditional stay of bankruptcy proceedings granted pending determination of appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal has jurisdiction to entertain an application for stay of bankruptcy proceedings pending appeal against a Receiving Order. The Supreme Court's power to order a stay under section 105 of the Bankruptcy Ordinance does not deprive the Court of Appeal of concurrent jurisdiction. Article 2 of the Eastern African Court of Appeal Order in Council 1921 confers sufficiently wide jurisdiction to determine such applications.

Outcome

Conditional stay of bankruptcy proceedings granted pending determination of appeal

Facts

Jan Mohamed appealed against a Receiving Order made by the Supreme Court in bankruptcy proceedings initiated by T. B. Lobo as petitioning creditor. While the appeal was pending, Jan Mohamed applied to the Court of Appeal for a stay of all proceedings consequent upon the Receiving Order. The respondent argued that the applicant should have first applied to the Supreme Court under sections 11 or 105 of the Bankruptcy Ordinance 1930, which vested power to stay proceedings in the Supreme Court sitting in bankruptcy.

Issues

  1. Whether the Court of Appeal has jurisdiction to entertain an application for stay of proceedings when the Supreme Court also possesses such power under the Bankruptcy Ordinance.
  2. Whether an applicant must first apply to the Supreme Court for a stay before approaching the Court of Appeal.

Orders

  • Application for stay of proceedings entertained by the Court of Appeal.
  • Conditional stay of proceedings ordered on 21 May 1935.

Rules and key headnotes

Civil Procedure — Appellate Jurisdiction — Stay of Proceedings — Concurrent Jurisdiction
The fact that the Supreme Court possesses power to order a stay of proceedings does not deprive the Court of Appeal of the power to entertain and make an order on an application for a stay.
Statutory Interpretation — Appellate Powers — Jurisdiction to Grant Interim Relief
The language of Article 2 of the Eastern African Court of Appeal Order in Council 1921 is sufficiently wide to confer jurisdiction on the Court of Appeal to hear and determine applications for stay of proceedings, as it empowers the Court to pass any order necessary for doing justice in the cause or matter before it.
Civil Procedure — Stay of Proceedings — Choice of Forum — First Instance Application
Where the Supreme Court and the Court of Appeal possess concurrent jurisdiction to entertain an application to stay proceedings, and there is no provision requiring that application be first made to the lower court, an applicant is entitled to apply to the Court of Appeal in the first instance.

Legislation cited (6)

  • Bankruptcy Ordinance 1930 s.11
  • Bankruptcy Ordinance 1930 s.105
  • Bankruptcy Rule 97
  • Court of Appeal Rule 27
  • Court of Appeal Rule 5(4)
  • E.A. Court of Appeal Order in Council 1921 art.2

Cases cited (2)

  • Cropper v Smith (1884) 24 Ch D 305
  • In re Artistic Colour Printing Co (1880) 14 Ch D 502

Full judgment

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

Mohamed v Lobo (C.A. 5-1935.) [1935] EACA 58 (1 January 1935)
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.