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Attorney General v Abdulla (C.A. 27/1934.) [1935] EACA 48 (1 January 1935)
- Citation
- [1935] EACA 48
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Abrahamas, C.J. (Tanganyika), Law, C.J (Zanzibar), Sheridan, P
- Case number
- C.A. 27/1934.
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Abrahamas, C.J. (Tanganyika), Law, C.J (Zanzibar), Sheridan, P
- Case number
- C.A. 27/1934.
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that if the case is considered a 'suit' within the meaning of the Civil Procedure Ordinance, the appeal fails because special leave to appeal was not obtained as required by section 74. The appellant did not comply with Rule 9 of the Court of Appeal Rules. If the case is not a 'suit', there is no procedure for a second appeal. The court deliberately refrained from deciding whether the case is a 'suit', leaving the issue open for future determination. Consequently, the appeal was dismissed with costs.
Court disposition
appeal_dismissed
Orders
- The appeal is dismissed with costs.
02
Material facts
Parties
Attorney General
Appellant Counsel: LeweyHabib Abdulla
Respondent Counsel: RossAmounts and remedies
- Subject Matter Value: KES 60
03
Procedural history
Posture
Civil Appeal / Second Appeal
04
Questions and positions
Legal issues
- 01
Does the matter constitute a 'suit' under the Civil Procedure Ordinance, 1930, sec. 74.
- 02
Is leave to appeal required for a second appeal where the subject matter is less than £50.
- 03
Is there any procedure permitting a second appeal if the case is not a 'suit'.
Party arguments
- Applicant
- The appellant argued that the appeal should be allowed, contending that the matter was appealable and did not require special leave under the Civil Procedure Ordinance. No specific procedural default was admitted.
- Respondent
- The respondent argued that no appeal lies because the subject matter is Sh. 60, below the threshold, and leave to appeal has not been obtained as required by section 74 of the Civil Procedure Ordinance and Court of Appeal Rules, Rule 9. Reference was made to Ratanbai Miyaji v. Essufali Gulamhussein (12 K.L.R. 20).
05
Court’s reasoning
Legal principles
- 01
Civil Procedure Ordinance, 1930, sec. 74
Where a case is a 'suit' under the Civil Procedure Ordinance, special leave to appeal is required for a second appeal if the subject matter is below the statutory threshold.
- 02
Court of Appeal Rules, Rule 9
If the matter is not a 'suit', there is no procedure permitting a second appeal.
06
Ratio, limits and disposition
Ratio decidendi
The court held that if the case is considered a 'suit' within the meaning of the Civil Procedure Ordinance, the appeal fails because special leave to appeal was not obtained as required by section 74. The appellant did not comply with Rule 9 of the Court of Appeal Rules. If the case is not a 'suit', there is no procedure for a second appeal. The court deliberately refrained from deciding whether the case is a 'suit', leaving the issue open for future determination. Consequently, the appeal was dismissed with costs.
Obiter and limits
- The court purposely refrained from definitely deciding whether the case is a 'suit', leaving the point open for future argument and decision.
Court disposition
appeal_dismissed
- The appeal is dismissed with costs.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
COURT OF APPEAL FOR EASTERN AFRICA.
Before SIR JOSEPH SHERIDAN, P.; ABRAHAMS, C. J. (Tanganyika), and Law, C. J. (Zanzibar).
> ATTORNEY GENERAL, Appellant, (Original Plaintiff-Respondent)
HABIB ABDULLA, Respondent.
(Original Defendant-Appellant).
C. A. $27/1934$ .
Non-Native Poll Tax—Summons to show cause—Second appeal— Subject matter less than £50—Laws of Kenya, Cap. 52, sec. 9—Civil Procedure Ordinance, 1930, sec.
74.
Held (18-1-35).—That, if the case were a "Suit" within the meaning of the Civil Procedure Ordinance, the appeal failed, leave to appeal not having been obtained, and that, if it were not a Suit, no second appeal lay.
In May, 1934, the respondent was summoned, under section 9 of the Non-Native Poll Tax Ordinance (Cap. 52)-to-show cause-why he should not be ordered to pay the tax due by him for the year 1933. The Magistrate decided against him but on appeal to the Supreme Court this decision was reversed. The Crown appealed.
Ross for the Respondent: - No appeal lies, the subject matter is Sh. 60 and leave to appeal has not been obtained: C. P. O. sec. 74; Court of Appeal Rules, R. 9. (He referred to Ratanbai Miyaji v. Essufali Gulamhussein (12 K. L. R. 20).)
Lewey for the Appellant.
JUDGMENT.—If this case be regarded as a suit within the meaning of the Civil Procedure Ordinance inasmuch as special leave to appeal has not been obtained as prescribed by section 74 of C. P. O. the appeal must fail. Before the granting of special leave could be considered the appellant would require to comply with the provisions of Rule 9 of the Court of Appeal Rules and this he has not done. If on the other hand the case be not regarded as a "suit" then the appellant is in our opinion in a worse position, for we know of no procedure nor has counsel been able to indicate any procedure according to which a second appeal lies. We purposely refrain from definitely deciding the point whether the case is a "suit" or not so as to leave the point open for argument and decision in any future case that may arise. The appeal is dismissed with costs.
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