Abbas G. Essaji v. Gordhan Dewji Solanki, Misc. Civ. Case 40-D-67, 10/8/67, Georges C. J.

Abbas G. Essaji v. Gordhan Dewji Solanki, Misc. Civ. Case 40-D-67, 10/8/67, Georges C. J.

Every memorandum of appeal must have attached a formal order of the lower court’s ruling. Earlier, appellant had sought to appeal a lower court decision. He had submitted a document purporting to be a formal order of the lower court, issued by that court, but not in fact the require document. After respondent’s timely objection, appellant had sought an adjournment to put the papers in order. Hamlyn, J., had held that

Because the papers were not in order, there was nothing before him and consequently nothing to adjourn. In the present application, appellant sought an extension of time for filing his appeal.

            Held: (1) The earlier ruling is not res judicata so as to prevent appellant from filing his appeal again, this time in proper order. Since the earlier appeal was incompetent, there was no “res” before the Court capable of becoming “judicata.” Citing Ngoni-Matengo v. Alimohamed Osman (1959) E.A. 577. (2) Counsel’s failure here was in not realizing that the order he obtained from the trial court was not in proper form. Not with standing the inconvenience to respondent, justice will be best served by not barring appellant’s application for an extension of time because of counsel ’s error. Order that appellant be given 5 days to file an Appeal in proper form.