Wakilii

Patel and Another v The Universal Timber Co. Ltd (Civil Appeal No. 36 of 1951)

East African Court of Appeal · [1952] EACA 29 · 1952 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from judgment entered by Deputy Registrar on notice of indemnity between co-defendants
Decision
Judgment against appellant set aside; respondent may now apply for directions under Order 1 rule 18

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that a defendant cannot obtain judgment against a co-defendant on a notice of indemnity without first applying to the Court for directions under Order 1 rule 18. The Deputy Registrar had no jurisdiction to enter judgment under Order 48 rule 2(1) as the procedure for claims between co-defendants requires the defendant seeking indemnity to first seek the Court's directions on whether there is a proper question to be tried. The order, though made without jurisdiction, remained valid until set aside on appeal and was therefore appealable.

Outcome

Judgment against appellant set aside; respondent may now apply for directions under Order 1 rule 18

Facts

The appellant was second defendant in an action on a promissory note for Sh. 3,000 made by the first defendant and endorsed by the appellant. Judgment was entered against both defendants and the first defendant satisfied the judgment debt. The first defendant then filed a notice of indemnity against the second defendant under Order 1 rule 21. The second defendant entered appearance to the notice. The Registry endorsed the duplicate memorandum requiring the second defendant to file a defence within 15 days under Order 9 rule 1. No defence was filed. On application by the first defendant's advocates, the Deputy Registrar entered judgment against the second defendant for Sh. 3,000 plus costs under Order 48 rule 2(1). The second defendant appealed.

Issues

  1. Whether the Deputy Registrar had jurisdiction to enter judgment against a co-defendant on a notice of indemnity without the defendant first seeking directions from the Court under Order 1 rule 18.
  2. Whether a defendant can obtain judgment against a co-defendant on a notice of indemnity without following the third party procedure prescribed by Order 1 rule 18.
  3. Whether an order made by a Deputy Registrar in excess of jurisdiction is a nullity such that no appeal lies from it.

Orders

  • Appeal allowed with costs.
  • Judgment entered against the appellant set aside.
  • Orders made by the Registrar in respect of costs set aside.
  • Respondent at liberty to proceed under Order 1 rule 18.

Rules and key headnotes

Civil Procedure — Third Party Procedure — Claims Between Co-Defendants — Requirement to Seek Directions
Where a defendant claims contribution or indemnity against a co-defendant under Order 1 rule 21, the defendant seeking indemnity must apply to the Court for directions under Order 1 rule 18 before any question of liability between the co-defendants can be tried and determined. A defendant cannot obtain judgment against a co-defendant on a notice of indemnity by default without first seeking such directions.
Civil Procedure — Third Party Procedure — Inapplicability of Default Judgment Procedure
The default judgment procedure under Order 48 rule 2(1) does not apply to claims between co-defendants on a notice of indemnity. The specific procedure prescribed by Order 1 rules 14 to 21 for third party claims, which applies equally to claims between co-defendants by virtue of rule 21, must be followed.
Civil Procedure — Appeals — Appealability of Orders Made Without Jurisdiction
An order made by a Deputy Registrar purporting to exercise judicial functions delegated under the Civil Procedure Rules, even if made without jurisdiction, creates a decree within the meaning of section 66 of the Civil Procedure Ordinance. Such a decree remains valid and effective until set aside by an appellate court, and an appeal lies from it.

Legislation cited (9)

  • Kenya Supreme Court Civil Procedure (Revised) Rules 1948 Order 1 rule 14
  • Kenya Supreme Court Civil Procedure (Revised) Rules 1948 Order 1 rule 18
  • Kenya Supreme Court Civil Procedure (Revised) Rules 1948 Order 1 rule 21
  • Kenya Supreme Court Civil Procedure (Revised) Rules 1948 Order 9 rule 1
  • Kenya Supreme Court Civil Procedure (Revised) Rules 1948 Order 48 rule 2(1)
  • Kenya Supreme Court Civil Procedure (Revised) Rules 1948 Order 5
  • Civil Procedure Ordinance s.81(2)(i)
  • Civil Procedure Ordinance s.66
  • Civil Procedure Ordinance s.2

Cases cited (2)

  • Tritton v Bankart (1887) L.T.R. 306
  • Chandubhai H Patel v Taylor X E.A.C.A. 1

Full judgment

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Patel and Another v The Universal Timber Co. Ltd (Civil Appeal No. 36 of 1951) [1952] EACA 29 (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.