WILLIAM v. MARIA (1972) HCD 10

PC) Civ. App. 22-A-69; 17/12/71

Kwikima Ag. J.

An application was brought under or. 42 r. (1) (b) of the Civil Procedure Code urging the court review own order for summarily rejecting the applicant’s appeal. The learned advocate for the applicant argued that the court had no power to reject an appeal summarily because that was contrary to the provisions of Or. 29 rr. 17, 18 & 19 C. P.C which make it necessary for the court to hear any party who lodges an appeal before deciding upon that appeal. The respondent in reply questioned the validity of the application as being time – barred.

HELD:

(1) “This whole question devolves upon the interpretation of various provisions of the Magistrates Courts’ Act Cap. 537. It is intended to examine the relevant provisions relating to the appellate jurisdiction of the High Court in matters originating from Primary Courts. In every file which comes up for appeal purposes, the High Court registry inserts a form which in part reads as follows: - (Primary Court Appeals can be summarily rejected under Section 24 (4) Magistrates’ Court Act …..) Section 24 (4) itself cannot be fully appreciated without being read in conjunction with section 24(1). Taken together these section read thus: - 24(1) Subject to the provisions of subsection (2) and (3) of this section a judge of the High Court may, if satisfied that an appeal in any other proceeding is without substance, summarily reject the appeal. 24(4) a judge may, if satisfied that an appeal in any other proceeding is without substance, summarily reject the appeal. It is an elementary rule or interpretation of statutes that words should normally be construed in their ordinary sense and meaning. The two sections read together would mean to any ordinary person, lawyer or layman that High Court judges have the power to reject summarily any matter, criminal civil or otherwise, coming up from the Primary Courts. It must be pointed out, with due respect to the learned counsel for the applicant, that the power to act as the court did in this case is expressly provided for under section 24 which cannot be said to be vague or ambiguous.” 

(2) “The learned counsels for the applicant went on to argue that the provisions of the Civil Procedure Code applied to appeals from the Primary Courts and that failure to adhere to any provision of the C. P. C. would be fatal to the decision of the High Court. When submitting this argument, the learned counsel did overlook the provisions of S. 32 (3) (c) which reads as follows: - “In the exercise of their respective jurisdictions under this part, the High Court and District Court …..Shall not be required to comply or conform with the provisions of any rule of practice or procedure otherwise generally applicable in proceedings in the appellate or revisional court, but may apply any such rule where it considers the application would be advantageous to the exercise of such jurisdiction” In other words, a judge is not fettered by the provisions of the Civil Procedure Code in determining appeals from the Primary courts. Indeed he should not apply them to the detriment of justice. The spirit of this provision is that “substantial justice (should) be done without undue regard to technicalities.” Where justice so demands, Such provisions may be applied, however. But their application is not mandatory and is determined by the need to do substantial justice. The are only applicable in furtherance of the cause of justice, not in order to put the cause of justice in danger. And when it appears that a slavish adherence to them would jeopardize the cause of justice, the law has expressly provided against their application.” 

(3) Application rejected.