Hodgson and Simpson Ltd v Sheriff Devji and Sons (C.A. 5/1926.) [1928] EACJ 2 (1 January 1928)

COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR T. S. TOMLINSON, C. J. (Zanzibar); GUTHRIE-SMITH, J. (Uganda); and SHERIDAN, J. (Kenya).

> HODGSON & SIMPSON, LTD. $(A$ *ppellants*) (Original Respondents)

> > n

SHERIFF DEVJI & SONS (Respondents)

(Original Applicants).

C. A. $5/1926$ .

Eastern Africa (Appeal to the Privy Council) Order-in-Council, 1921.

Held: That if the time allowed elapses without the appellant finding the security required the proceedings with a view to appeal ipso facto fail. Further held that when respondents appear upon an application for leave to appeal they should ask the Court to make an order as to their costs and that should they fail to do so their costs of any further application for costs should be disallowed.

JUDGMENT (dated 15-12-27).—In December, 1926, this Court dismissed an appeal by Sheriff Devji & Sons, whom we shall hereafter refer to as the appellants, against a decision of the Supreme Court of Kenya. The appellants filed an application for leave to appeal to the Privy Council which was on the 10th of June, 1927, granted, subject to the condition (inter alia) that good security to the extent of $£750$ be lodged within one month for the due prosecution of the appeal. When the application came before the Court, Messrs. Hodgson and Simpson, Ltd., the respondents, appeared by counsel and took part in the proceedings, but no order was made as to the costs of the application. The appellants failed to fulfil the conditions of furnishing security and the respondents now apply that the order granting conditional leave to appeal should be revoked. The reasons for this application appear to be two: (1) That the respondents feel that without a formal order of revocation there remains some uncertainty as to whether the appellants may not take further steps to prosecute the appeal; and $(2)$ That the respondents wish to recover the costs of their appearance on the application for leave to appeal. The first of these points has already been dealt with in Civil Appeal No. 9 of 1925 in which a similar state of affairs occurred and in which a similar application was made. It was then pointed out that as the time had elapsed without the appellant finding the security required the proceedings with a view to appeal ipso facto fail and the appellant cannot now obtain final leave to appeal. It follows from this that the original order

for leave to appeal having lapsed no further order of the revocation of the former order is necessary and that any application for such an order is redundant. It also follows that there being no effective order for conditional leave to appeal the appellants cannot apply to withdraw their appeal under Art. 17 of the Eastern Africa (Appeal to the Privy Council) Order-in-Council, 1921.

We come now to the second point on the question of costs. Under Art. 5 of the Order-in-Council the applicant for leave to appeal shall give to the opposite party notice of his intended application. The only object of such notice is to give the opposite party an opportunity of appearing and being heard either in opposition to the application, or on the question of the amount of security, or other matters connected with the appeal.

Article 6 of the Order-in-Council does not appear to deal with the costs of an application for leave, but we see no reason why the costs of such an application should not be dealt with by the Court to which the application is made in the same way as any other costs would be dealt with. In fact it would seem obvious that, in the event of there being any question as to costs, the Court hearing the application is the only proper Court to give a decision. Up to the present it has not been the practice of the Court hearing an application to make an order for costs, and if the appellant fulfills the conditions upon which he has been granted conditional leave to appeal the Order-in-Council contains ample means for a recovery of such costs. But there appears to be no provision in the Order-in-Council for dealing with a case in which the appellant fails to fulfil the conditions. Art. 18 of the Order-in-Council obviously will not apply, and there is no necessity for him to withdraw his appeal under Art.

17.

In our view the proper and convenient course is for the Court in making an order for conditional leave to appeal, which is after all an application to the Court of Appeal, to make an order providing for the costs of that application and such order might take the form "that in the event of the applicant fulfilling the conditions of the order the costs of the application do abide the further order of the Court or of the Privy Council, and that in the event of the conditions not being fulfilled the applicant do pay the opposite party the costs of the application, or as the case may require." Of course no such order was made in this case, but we conceive that it is still open to the Court, following the previous practice, to complete its former order by making proper provisions as to costs. We propose, therefore, that the application of the respondents be treated as an application for costs, and that an order be made for the payment by the appellant to respondent of their costs on application for leave to appeal and of this application.

We have been asked to lay down a definite rule of practice in these cases, and we proposee that the rule should be that in future when the respondents appear upon an application for leave to appeal, they should ask the Court to make an order as to their costs, and that should they fail to do so their costs of any further application for costs should be disallowed.

As this is a question of the future practice of the Court and is of general interest we have referred this proposal to the learned President who authorizes us to say that he concurs.