Wakilii

Old East Africa Trading Company Limited v Jetha (Appeal No. 13 of 1956)

East African Court of Appeal · [1956] EACA 264 · 1950 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from High Court order refusing leave to appeal and stay of execution
Decision
Appeal dismissed as incompetent for want of jurisdiction

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An appeal is incompetent and the Court of Appeal has no jurisdiction to hear it where the order appealed from had not been extracted at the time the appeal was lodged. The extraction of an order is not a mere procedural formality but a substantive requirement — there must be an order in existence before there can be anything to appeal from. The subsequent extraction of the order after lodging the appeal cannot cure the defect.

Outcome

Appeal dismissed as incompetent for want of jurisdiction

Facts

The appellant company sought to appeal a High Court judgment dismissing their appeal from the District Court. Leave to appeal was required under the Appeals to the Court of Appeal Ordinance. The appellant's advocate failed to apply for leave within the prescribed 30-day period. On 25 November 1955, an application to extend time was refused by Law Ag.J. On 13 December 1955, the appellant filed a notice of appeal (over six weeks out of time) together with a fresh application for leave to appeal, which was also refused on 20 December 1955. The appellant was granted leave to appeal from the 20 December order. The appellant's advocate lodged the appeal on 29 December 1955 but failed to extract the order of 20 December before doing so. The record filed on 15 February 1956 omitted the essential order. The order was only extracted and filed by way of supplementary record on 27 February 1956. The respondent raised a preliminary objection that the appeal was incompetent because no order had been extracted when the appeal was lodged.

Issues

  1. Whether an appeal can be competent when the order appealed from had not been extracted at the time the appeal was lodged.
  2. Whether the Court of Appeal has jurisdiction to hear an appeal where no extracted order existed when the appeal was filed.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Appeals — Competency — Requirement to Extract Order Before Lodging Appeal
An appeal is incompetent and the appellate court has no jurisdiction to hear it where the order appealed from had not been extracted at the time the appeal was lodged, as there is nothing to appeal from until an order exists.
Civil Procedure — Appeals — Extraction of Orders — Subsequent Extraction Cannot Cure Defect
Where an appeal is lodged before extraction of the order, the subsequent extraction of the order and filing by way of supplementary record cannot cure the fundamental defect that no order existed at the time of lodging the appeal.
Civil Procedure — Appeals — Leave to Appeal — Scope of Leave Granted
When a judge grants leave to appeal after delivering judgment, the leave is to appeal against the decree or order in which the effect of the judgment will be embodied, not against the judgment itself as a decision.
Civil Procedure — Appeals — Extension of Time — Sufficient Cause
In applications to extend time for giving notice of intention to apply for leave to appeal, the test is whether sufficient cause has been shown, and the negligent error of an advocate may constitute good ground for enlarging time.

Legislation cited (7)

  • Tanganyika Appeals to the Court of Appeal Ordinance (Cap. 23) s.7(1)(c)
  • Tanganyika Appeals to the Court of Appeal Ordinance (Cap. 23) s.8(1)
  • Tanganyika Appeals to the Court of Appeal Ordinance (Cap. 23) s.8(2)
  • Tanganyika Appeals to the Court of Appeal Ordinance (Cap. 23) s.9
  • Indian Limitation Act s.12(2)
  • Eastern African Court of Appeal Rules, 1954 rule 58
  • Eastern African Court of Appeal Rules, 1954 rule 54

Cases cited (4)

  • Aluminium Union Co. v K. Narandas & Co. (4 E.A.C.A. 20)
  • Mohamedbhai v Yusuf Abdul Ghani (19 E.A.C.A. 38)
  • Velji v Hirji (19 E.A.C.A. 184)
  • Harnam Singh Bhogal v Jadva Karsan (20 E.A.C.A. 17)

Full judgment

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Old East Africa Trading Company Limited v Jetha (Appeal No. 13 of 1956) [1950] EACA 264 (1 January 1950)
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.