Wakilii

Shah and Others v Abdulla and Another (Civil Suit No. 200 of 1953)

East African Court of Appeal · [1955] EACA 3 · 1955 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of judgment under Order 44, rule 1(2) of the Civil Procedure (Revised) Rules, 1948
Decision
Application for review dismissed with costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Review lies only where a person is aggrieved by a decree. Where there is only a judgment but no formal decree, procedure by review is incompetent. A party not appealing may apply for review notwithstanding an appeal by another party. An application for review is not time-barred where the period of limitation runs from the date of decree and no decree exists. The Court cannot change a consent judgment clearly expressed at trial on the basis of subsequent assertions that different terms were agreed. Review is discretionary and delay of nearly a year justifies refusal.

Outcome

Application for review dismissed with costs

Facts

The applicants (purchasers) and respondents (vendors) entered into an agreement for the sale of a plot with buildings for Sh. 125,000. A deposit of Sh. 25,000 was paid. Before completion, one tenant surrendered his tenancy and vacated. The vendors immediately relet that portion without notice to the purchasers. The applicants sued for specific performance or alternatively for damages. At trial, the applicants' advocate stated that specific performance was abandoned and only damages were sought. The Court assessed damages at Sh. 18,000. When asked about the form of judgment, the applicants' advocate said there should be judgment for damages and costs, and the respondents' advocate agreed. The Court entered judgment accordingly. Ten months later, the applicants applied for review, claiming their advocate had failed to communicate that the parties had agreed to an order for specific performance with damages deducted from the purchase price. The respondents had already filed an appeal against the judgment.

Issues

  1. Whether review lies under section 80 of the Civil Procedure Ordinance and Order 44, rule 1, where there is only a judgment but no formal decree in existence.
  2. Whether an applicant is procedurally barred from seeking remedy by review where the respondent has preferred an appeal.
  3. Whether an application for review is time-barred under section 162 of the Indian Limitation Act, 1877, where no formal decree has been drawn up.
  4. Whether the Court can interfere by review with a consent judgment on the ground that the advocate failed to communicate the correct terms agreed upon.
  5. Whether delay of nearly a year in applying for review justifies refusal of the application in the exercise of the Court's discretion.

Orders

  • Application for review dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Review — Competence of Procedure — Distinction Between Judgment and Decree
Review lies under section 80 of the Civil Procedure Ordinance and Order 44, rule 1, only where a person is aggrieved by a decree. Where there is only a judgment but no formal decree in existence, procedure by review is incompetent. The word 'decree' in section 80 and Order 44, rule 1, does not include judgment, as the proviso in section 2 extending 'decree' to include judgment applies only for the purposes of appeal.
Civil Procedure — Review — Effect of Pending Appeal by Another Party
A party who is not appealing from a decree or order may apply for review notwithstanding the pendency of an appeal by another party. The words 'but from which no appeal has been preferred' in section 80(a) of the Civil Procedure Ordinance preclude an application for review by the person considering himself aggrieved where such person has preferred an appeal, but do not bar review where the other party has appealed. The intention of the law is to prevent a party from availing himself of two remedies at the same time.
Civil Procedure — Review — Limitation — Period Runs from Date of Decree
Where section 162 of the Indian Limitation Act, 1877, provides that the period of limitation for review is twenty days from the date of the decree, and no formal decree has been drawn up, time does not begin to run. The word 'decree' in section 162 cannot be given an extended meaning to include judgment, even if 'decree' in section 80 of the Civil Procedure Ordinance were held to include judgment for the purposes of review.
Civil Procedure — Review — Grounds for Review — Consent Judgment — Advocate's Error
Where the terms of a consent judgment have been clearly expressed before the Court at trial, the Court cannot hear by way of review that these terms were not the correct terms agreed upon at the time and change its judgment to adjudicate on terms now said to have been agreed but communicated to it for the first time on review. An advocate's failure to communicate the correct position to the Court due to misunderstanding or failure to inform himself of what occurred earlier in the trial does not constitute 'any other sufficient reason' for review. If applications for review were allowed on such grounds, there would be no end to legal proceedings.
Civil Procedure — Review — Discretion — Effect of Delay
Review is a matter of discretion. Delay of nearly a year after judgment before applying for review will, in itself, justify a refusal of the application, particularly where the applicant had notice of an appeal by the other party several months before filing the review application.
Civil Procedure — Review — Grounds for Review — Abandonment of Issue Due to Erroneous View
Where a specific question involved in an issue raised at the instance of a party has been abandoned as a result of an erroneous view taken by that party's advocate, the Court cannot interfere by way of review. Otherwise there will be no finality to the decision of a Court if after judgment is pronounced the parties or advocates are allowed to come forward and say that certain argument was addressed or given up in the course of the trial as the result of their misremembering certain material facts.

Legislation cited (13)

  • Civil Procedure Ordinance, Cap. 5 s.80
  • Civil Procedure Ordinance, Cap. 5 s.2
  • Civil Procedure Ordinance, Cap. 5 s.66
  • Civil Procedure Ordinance, Cap. 5 s.97
  • Civil Procedure Ordinance, Cap. 5 s.99
  • Civil Procedure Ordinance, Cap. 5 s.100
  • Civil Procedure (Revised) Rules, 1948, Order 44 rule 1
  • Civil Procedure (Revised) Rules, 1948, Order 20 rule 6
  • Civil Procedure (Revised) Rules, 1948, Order 20 rule 7
  • Indian Limitation Act, 1877 s.162
  • Limitation Ordinance, Cap. 11 s.41
  • Indian Acts (Amendments) Ordinance, Cap. 2 s.3
  • Indian Acts (Amendments) Ordinance, Cap. 2 s.4

Cases cited (5)

  • F. H. Mohamedbhai & Co., Ltd. v. Yusuf Abdul Ghani (East African Court of Appeal No. 38 of 1952)
  • Jankiram Company of Dindigul v. Chunilal Shriram Chandak, (1944) I.L.R. Born. 675
  • Pandu v. Devshi, (1883) I.L.R. 7 Bom. 287 and (1872) I.L.R. 9 Born. H.C.R. 89
  • Chhajju Ram v. Neki and Others, (1922) I.L.R. 3 Lah. 127 (P.C.)
  • Venkayya v. Suranarayane and Others, (1940) A.I.R. 27 Mad. 203

Full judgment

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Shah and Others v Abdulla and Another (Civil Suit No. 200 of 1953) [1955] EACA 3 (1 January 1955)
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.