Wakilii

Mohamed v Shako and Another (Civil Appeal No. 60 of 1952)

East African Court of Appeal · [1952] EACA 174 · 1952 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Aden concerning execution proceedings and sale of property
Decision
Appeal dismissed as incompetent for lack of leave to appeal from an interlocutory order

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that an order directing sale of property under execution proceedings, made under Aden Rules of Court Rules 293, 298 and 299, is not a final judgment within the meaning of section 6(1)(a) of the Appeals to the Court of Appeal Ordinance, 1948. The order was interlocutory in nature as it did not conclusively determine the rights of the parties. Since no leave to appeal had been obtained from the Supreme Court, the appeal was incompetent and dismissed.

Outcome

Appeal dismissed as incompetent for lack of leave to appeal from an interlocutory order

Facts

The respondents were decree holders seeking execution of their decree by sale of the appellant's property. Following an earlier appeal (Civil Appeal No. 47 of 1950), the Supreme Court of Aden set aside a previous sale on grounds of irregularity. The decree holders then applied for a fresh sale. On 28 May 1952, Campbell J. ordered that the property be sold by the Nazir on 15 July 1952, granted the mortgagees (decree holders) the right to bid, and fixed a reserve price of Sh. 75,000 as regards them. The appellant filed a memorandum of appeal on 4 June 1952 and applied for a stay, which was initially refused but later granted on an ex parte application to the Court of Appeal. The respondents filed written arguments contending that the order was not a final judgment and that no appeal lay as of right without leave.

Issues

  1. Whether the order of the Supreme Court of Aden directing sale of property is a final judgment within the meaning of section 6(1)(a) of the Appeals to the Court of Appeal Ordinance, 1948.
  2. Whether an appeal lies as of right from the order or whether leave to appeal is required.

Orders

  • Appeal dismissed.
  • Appellant to refund any actual disbursements incurred by the respondents.
  • No profit costs awarded to respondents as they did not appear.

Rules and key headnotes

Civil Procedure — Appeals — Final Judgment — Execution Proceedings
An order directing sale of property under execution proceedings, which appoints a date for sale, grants permission to bid, and fixes a reserve price, is not a final judgment but an interlocutory order, as it does not conclusively determine the rights of the parties.
Administrative Law — Appeals — Right of Appeal — Municipal Legislation
The right of appeal to the Court of Appeal for Eastern Africa is conferred only by the municipal legislation of the Territory from which the appeal comes and is limited and conditioned by such legislation.
Civil Procedure — Appeals — Leave to Appeal — Interlocutory Orders
Where an appeal from an interlocutory order requires leave under the relevant appeals ordinance, an appeal filed without obtaining such leave is incompetent and must be dismissed.

Legislation cited (15)

  • Appeals to the Court of Appeal Ordinance, 1948 (Aden Ordinance 22 of 1948) s.6(1)(a)
  • Appeals to the Court of Appeal Ordinance, 1948 (Aden Ordinance 22 of 1948) s.6(1)(b)
  • Appeals to the Court of Appeal Ordinance, 1948 (Aden Ordinance 22 of 1948) s.6(1)(c)
  • Appeals to the Court of Appeal Ordinance, 1948 s.2
  • Civil Courts Ordinance (Chapter 22 of the Laws of Aden, 1945) s.2
  • Civil Courts Ordinance s.40
  • Civil Courts Ordinance s.40(1)
  • Aden Rules of Court Rule 293
  • Aden Rules of Court Rule 298
  • Aden Rules of Court Rule 299
  • Aden Rules of Court Rule 310
  • Aden Rules of Court Rule 316
  • Aden Rules of Court Rule 317
  • Aden Rules of Court Rule 319
  • Aden Rules of Court Rule 321

Cases cited (2)

  • Civil Appeal No. 47 Of 1950
  • Civil Appeal No. 57 of 1950

Full judgment

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Mohamed v Shako and Another (Civil Appeal No. 60 of 1952) [1952] EACA 174 (1 January 1952)
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.