Mohamed Dewji v. The Commissioner of Income Tax. Civ. App. 4-A-68; -; Platt J

 

Mohamed Dewji v. The Commissioner of Income Tax. Civ. App. 4-A-68; -; Platt J

The applicant unsuccessfully appealed against a decision of the Commissioner for Income Tax. He later gave notice to appeal to the Court of Appeal, but did not apply for leave. The omission was noticed just before the appeal was about to be heard. He then applied for leave to appeal under s. 17 of the Appellate Jurisdiction Ordinance. Cap. 451.

            (1) “Section 113 (h) of the East African Income tax (Management) Act 1958 provides that when there has been an appeal to a judge under section 111 of the Act, then “no appeal shall lie from the decision of a judge except on a question of law or of mixed law and fact”. The sub-section does not give an absolute right of appeal, since it is phrased in a negative and not a positive form. While there cannot be an appeal except on a matter of law or mixed law and facts, it does not follow conversely that there is automatically a right of appeal on such conditions.” (Citing G. v. THE COMMISSIONER OF INCOME TAX, Case No. 7, Vol. 1, East African Tax Cases 43 at page 56). (2) “One is then bound to refer back to the provisions providing for appeal from the High Court to the Court of appeal in civil proceedings, and they will be found in Part 11 of Cap. 451. Section 7 (1) provides that in civil proceedings except where otherwise provided by any other ordinance for the time being in force, an appeal shall lie to the Court of Appeal against decrees and orders as specified in sub-paragraphs (a) and (b) of the sub-section and then sub-paragraph (c) provides: - “With the leave of the High Court against every other decree, order, judgment, decision or finding of the High Court.” It would seem therefore that leave to appeal is necessary, as the decision from which the applicant intends to appeal could only fall within section 7(1)(c) of Cap. 451. If this is the true position, then the intended appeal is at present incompetent, and would no doubt be struck out. “ “There is no ground on which the “G”. Case could possibly be distinguished and therefore I am bound to hold that the applicant must obtain leave to prosecute his appeal: otherwise the Court of Appeal would be without jurisdiction.” (3) “This then brings me to the question whether leave should now be granted. It is conceded that by Rule 23 of the EAST AFRICAN COURT OF APPEAL RULES 1954, leave to appeal not having been sought at the time when the judgment was delivered an application should have been made for that purpose within 14 days of the date of the judgment. The present application is of course out of time, but notwithstanding the decision of the Court of Appeal in HOGAN v. ADRIANWALLA (1965) E.A 594; it is submitted that this court may entertain the application to grant leave out of time. (The Judy then stated the facts of the case) I understand that it is now accepted that this opinion was per incur am, because section 17 of the Appellate Jurisdiction Ordinance was not brought to the notice of the Court of Appeal. Section 17 provides as follows: - “17. – The High Court and, where an appeal lies from subordinate court exercising extended powers, the subordinate court concerned, may extend the time for giving notice of intention to appeal from a judgment of the High Court or of a subordinate court exercising extended powers or for making an application for leave to appeal or for a certificate that the case is fit or appeal, notwithstanding that the time for giving such notice or making such application has already expired:” with respect. Therefore, I am not bound to follow the ruling of the Court of Appeal in HOGAN case in view of the statutory provisions of section 17, which must, of course, take precedence.” (4) “Nevertheless, the problem remains

 

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On what principles leave should be granted out of time. The controversy between the parties was whether section 17 should be considered to give this court unlimited discretion to extend the time within which the application might be made or whether section 17 should be read as importing the same limitations as are provided in Rule 9, (of the Court of Appeal Rules 1954). The latter Rule recites as follows, sub-rule (1) only being applicable. “(1) The Court shall have power for sufficient reason to extend tie for making any application, including an application for leave to appeal, or for bringing any appeal, or for taking any step in or in connection with any appeal, notwithstanding that the time limit therefore may have expired, and whether the time limited for such purpose was so limited by order of the Court or by these Rules or by order of a Superior Court or by any written law of any of the Territories.” From a comparison of the two sections, it will be apparent that while they are both concerned with an application for extension of time to obtain leave to appeal (inter alia) the Court of appeal is only entitled to grant such leave “for sufficient reason”. These words not being present to qualify the power of the High Court in section 17. their absence raises a question of some complexity on which neither the researches of Counsel nor my own have been able to find any authority; and the importance to the applicant of implying the words “for sufficient reason” may be discovered in the line of cases, which may be Said to have culminated in NGONI – MATENGO CO-OPERATIVE MARKETING UNION LTD. v. ALIMOHAMED OSMAN (1959) E.A. 577, and the recent review per Georges, C. J. in ESSAJI v. SOLANKI (1968) E.A. 218, of all the earlier authorities. I need not review the authorities considered in those cases, but it will suffice if I set out what I consider to be the principles deducible from those decisions. (The judge then reviewed the principles). “These principles have been resolved in denying the applicant an extension of time where the error arose through his failure to appreciate the legal necessity or his lack of diligence in taking the necessary steps, (see Farrab Incorporated v. The Official Receiver and Provisional Liquidator (1959) E.A. 5, and N.A. S. Airport Services Ltd. v. Attorney General of Kenya (1959) E.A. 53, and Commissioner for Transport v. Attorney General of Uganda (1959) E.A. 329); while on the other hand, the applicant has not been debarred where his error was of a different kind or less grievous – (see the Ngoni-Matengo case, Essaji v. Solanki, both quoted above which drew strength from Gatti v. Shoosmith (1939)  3 All E.R. 916).” “After careful consideration, it does not appear to me that I am bound to read the section and the rule as synonymous. For one thing, the rules were in existence from 1954, while the Ordinance came into force in 1961. I think it reasonable to consider that the rules, about which there had been so much litigation, especially Rule 9 and the meaning of “sufficient reason”, must have been well in mind when the draughts men presented the Ordinance to the Legislature. It is difficult to think, indeed, that the 1959 volume of the East African Law Reports, b itself such a compendium of knowledge on Rule 9, could not have been familiar reading in 1961. I would therefore hazard the opinion that the words “sufficient reason” was omitted from section 17 by design and for no other reason. In my view hem, on a plain reading of the section, I am not bound to consider this application under the exacting light of the decisions relating to Rule 9; I consider that my discretion is unfettered by the qualification in rule 9.” (5) “That does not mean that I should approach section 17 as if there were no principles to be followed in exercising the discretion provided by that section. Obviously gross errors would not attract the

 

 

 

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court’s indulgence. But as I understand section 17, it provides a free discretion, and whether or not the court’s indulgence is to be granted, must depend upon the facts of the individual case. It seems to me that support for this view can be gleaned both from SHABIR DIN v. RAMPRAKASHI ANAND, (1955) 22 E.A.C.A. 48, and GATTI v. SHOOSMITH (quoted above).” “There is no case here of lack of diligence. The only difficulty is that he failed to take leave to appeal, and on ascertaining his mistake, he brought this application.” “As to his misunderstanding of the nature of the appeal, he cited the definition of Appellate Proceedings in Rule 2(a) of the High Court Registries (Amendment Rules 1963, which defines such proceedings as relating to appeals to the High Court from subordinate courts and to all applications to the High Court for review or revision of proceedings in subordinate courts. That may be so but …… those rules have no application, since the Income Tax (Appeal to the High Court) Rules 1959, Legal Notice No. 13 in fact applies. No doubt, this type of appeal to the High Court is not in the ordinary sense an appeal as from the decision of another judicial body. And Rule 17 applying the procedure in civil suits before the court muatis mutandis shows that this appeal is of a hybrid nature. Nevertheless, it is clear that it is an appeal, and therefore the next appeal is a second appeal.” “The mistake of law made in this case would not appear to be different in principle, though different in kind, from that made in the Gatti Case. Therefore basing myself largely on the decision in the Gatti case, and considering it reasonable in all the circumstances, I shall grant the application. Accordingly leave to appeal is granted out of time."