Wakilii

Premchand and Others v Gomes and Others (Civil Appeal No. 33 of 1955)

East African Court of Appeal · [1950] EACA 95 · 1950 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya order sustaining preliminary objection to joint appeal from Rent Control Board possession order
Decision
Matter remitted to Supreme Court for hearing of substantive appeal from Rent Control Board order

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a joint appeal by multiple appellants with substantially identical grounds arising from a single order was regular and proper where the appellants acted jointly in presenting the same case. The appeal did not abate on the death of one appellant because the widow's statutory right to succeed to the tenancy was sufficiently substantial to prevent the action from being purely personal. The preliminary objection was a waste of time and money, as separate appeals would likely have been consolidated. Appeal allowed, matter remitted to Supreme Court for hearing.

Outcome

Matter remitted to Supreme Court for hearing of substantive appeal from Rent Control Board order

Facts

The respondent landlords sued a tenant firm and four individual occupiers for possession of premises and mesne profits, alleging unlawful subletting. The four appellants filed separate but substantially identical defences claiming sub-tenancies created before 1940, and were represented by one advocate. The Rent Control Board ordered possession against all parties. The four appellants filed a joint memorandum of appeal to the Supreme Court with identical grounds, again represented by one advocate. Without notice, counsel for respondents raised a preliminary objection that a joint appeal was not competent. The Supreme Court sustained the objection but gave leave to file separate memoranda. Before the appeal to the Court of Appeal was heard, the third appellant died. His widow applied to be joined as administratrix-ad-litem and in her personal capacity as statutory successor to the tenancy.

Issues

  1. Whether a joint appeal by multiple appellants with substantially identical grounds was competent under the applicable procedural rules.
  2. Whether the appeal abated on the death of the third appellant before the hearing.
  3. Whether the widow of the deceased appellant could be joined as a party to continue the appeal both as administratrix-ad-litem and in her personal capacity as statutory successor to the tenancy.
  4. Whether counsel who raised a preliminary objection without notice and which served no useful purpose should be required to give an undertaking as to costs or show cause.

Orders

  • Appeal allowed.
  • Order of the Supreme Court set aside.
  • Proceedings remitted to the Supreme Court for hearing.
  • Appellants awarded costs of this appeal and of the preliminary objection in the Supreme Court.
  • Counsel for respondents required to give undertaking that his clients should not bear costs of preliminary objection or appeal, or alternatively to show cause under rule 11 of the Eastern African Court of Appeal Rules, 1954.
  • Widow of third appellant joined as additional appellant both as administratrix-ad-litem and in her personal capacity.

Rules and key headnotes

Civil Procedure — Appeals — Joint Appeals — Competency where appellants have substantially identical grounds
Where multiple appellants appeal from a single order with substantially identical grounds and are represented by the same advocate, a joint appeal is regular and proper, even if their proprietary interests are distinct and separate.
Civil Procedure — Appeals — Abatement — Death of appellant — Statutory tenancy
An appeal does not abate on the death of an appellant where the cause of action is not purely personal. A widow's statutory right to succeed to a tenancy under rent restriction legislation is sufficiently substantial to prevent abatement, as the statutory tenancy has a conditional continuation pending disposal of the appeal.
Land & Property — Statutory Tenancy — Devolution on death — Effect of pending appeal
Where an absolute order for possession has been made against a statutory tenant but an appeal is pending, the statutory tenancy has a conditional continuation of existence. If the tenant dies while the appeal is pending, the tenancy vests by operation of law in the widow who fulfils the statutory requirements, and she may be joined to continue the appeal.
Civil Procedure — Preliminary objections — Notice requirement — Professional conduct
It is a breach of professional etiquette and practice for counsel to raise a preliminary objection without giving notice to opposing counsel. The practice of giving notice is not merely courteous but compulsory, and deliberate disregard of this rule may result in adverse costs orders against counsel personally.
Civil Procedure — Costs — Wasted costs — Counsel's responsibility for purposeless objections
Where counsel raises a preliminary objection that serves no useful purpose and wastes clients' money and the court's time, the court may require counsel to give an undertaking that the client will not bear the costs, or to show cause why such an order should not be made.
Civil Procedure — Appeals — Consolidation — Effect on preliminary objections
Where separate appeals would in all probability be consolidated if filed, a preliminary objection to a joint appeal serves no useful purpose and should not be taken, as the practical result would be the same.
Statutory Interpretation — Rent restriction legislation — Statutory tenancy — Nature and incidents
A statutory tenancy is a personal right that ordinarily disappears when an absolute order for possession is made. However, where an absolute order is subject to appeal, the statutory tenancy should be regarded as having continuous existence throughout if the order is set aside on appeal, not as reviving only at the date of the appellate order.

Legislation cited (17)

  • Increase of Rent (Restriction) Ordinance, 1949 s.2
  • Increase of Rent (Restriction) Ordinance, 1949 s.5
  • Increase of Rent (Restriction) Ordinance, 1949 s.7
  • Kenya Civil Procedure Ordinance s.27
  • Kenya Civil Procedure Ordinance s.65
  • Kenya Civil Procedure Ordinance s.66
  • Kenya Civil Procedure Ordinance s.72
  • Kenya Civil Procedure Ordinance s.96
  • Kenya Civil Procedure Ordinance s.97
  • Kenya Rules of the Supreme Court, Order XLI, rule 27
  • Kenya Rules of the Supreme Court, Order XVI, rule 46
  • Kenya Rules of the Supreme Court, Order XVII, rule 4
  • Eastern African Court of Appeal Rules, 1954, rule 11
  • Eastern African Court of Appeal Rules, 1954, rule 52
  • Eastern African Court of Appeal Rules, 1954, rule 70
  • Eastern African Court of Appeal Rules, 1954, rule 74(5)
  • English Rules of the Supreme Court, Order XVII, rule 1

Cases cited (29)

  • Ex parte Stead, in re Mundy (1885) 15 Q.B.D. 338
  • George v Pritam's Auto Service (E.A.C.A. Civil Appeal No. 74 of 1954)
  • Basant Kaur v Rattan Singh (E.A.C.A. Civil Appeal No. 95 of 1952)
  • Mohamed Ibrahim v Noor Fatma (Kenya Supreme Court Civil Appeal No. 19 of 1953)
  • Keeves v Dean [1924] 1 K.B. 685
  • Soloman v Orwell [1954] 1 All E.R. 874
  • Mills v Allen [1953] 2 All E.R. 534
  • American Economic Laundry Ltd v Little [1951] 1 K.B. 400
  • S. J. Gheewalla v Baron Akerhielm (E.A.C.A. Civil Appeal No. 84 of 1953)
  • Lovibond v Vincent [1929] 1 K.B. 687
  • Salter v Lask [1925] 1 K.B. 754
  • Hodge v Marsh [1936] 1 All E.R. 848
  • Smith v Williams [1922] 1 K.B. 158
  • Nadarajan Chettiar v Walauwa Mahatmee [1950] A.C. 481
  • Fazal Jiwan v Purshottam (1948) 15 E.A.C.A. 38
  • Maxwell v Viscount Wolseley [1907] 1 K.B. 274
  • James v Morgan [1909] 1 K.B. 564
  • Moody v Bosegood [1952] A.C. 61
  • Garijah v Niaz (1941) 2 Cal. 556
  • Jagat Singh Bains v Chogley (1949) 16 E.A.C.A. 27
  • Dean v Wiesengrund [1955] 2 K.B. 120
  • Lask v Cohen [1925] 1 K.B. 584
  • Hodges v Delhi and London Bank (1900) I.L.R. 23 All. 137
  • Bawa Singh Melaram v C. M. Patel (E.A.C.A. Civil Appeal No. 99 of 1955)
  • Annamalay Chettiar v Pitchu Ayyar (1905) 28 Mad. 122
  • Karunapejjalage v Wellawa [1946] A.I.R. P.C. 48
  • Helen Chronopoulos v Kassim (E.A.C.A. Civil Appeals Nos. 63, 64 and 65 of 1954)
  • Channan Singh and another v Chanan Singh and Handa (E.A.C.A. Civil Appeal No. 17 of 1953)
  • Sherrin v Brand [1956] 2 W.L.R. 131

Full judgment

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Premchand and Others v Gomes and Others (Civil Appeal No. 33 of 1955) [1950] EACA 95 (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.