(COURT OF APPEAL)*

CHRSTOS SIMOS vs. MOHAMMED ALl AHMED

 (AC/REV/182/1957)

Revision.

Principles

·  Practice — issue of fact decided in same way by two courts —. no further appeal.

·  Costs --- decree of judge containing manifest oversight application to Court of Appeal instead of to Judge himself.

the Court of Appeal will not normally entertain an appeal on a question of fact which has already been decided twice in the same way by Courts below.

Where a decree containing a manifest oversight is drawn up the proper course is to apply to the judge to revise his decree, and not to apply to a higher Court. If the latter course is adopted the applicant will be ordered to pay any additional costs incurred.

Judgment

The plaintiff brought an action against the defendant for goods sold for some J.1ooo. The defendant alleged that the transaction was not a sale but that he was merely a commission agent for the plaintiff. The defendant also alleged that he had paid the plaintiff .3oo in respect of the transaction in question, and the plaintiff admitted this fact. The trial judge found for the plaintiff on the facts, and gave judgment for him. The defendant applied to a Judge of the High Court for

(*) Court: R.C. Soni and B. Awadalla JJ.

Revision, but the Judge found the facts in the same way as the trial Judge. In giving judgment for the plaintiff, however, the High Court Judge, by an oversight, reduced the amount claimed by the /J. for which the plaintiff had already given the defendant credit. Thus this sum was deducted twice over. The plaintiff appealed to the Court of Appeal to correct this error. The defendant did not contest the error, but sought to re-open the issue of fact.

Advocates:         Mubark   Zarroug …………. for the p1aint

                         The defendant in person.

R.C. Soni, 3. stated the facts and continued.

The plaintiff has come up on revision to this Court and has pointed out what was done. The defendant was present before us. He raised no objection as to this sum of J.300, and as to the mistake which had crept in, in the decree of the learned Judge of the High Court. The defendant wanted to argue the point of commission agency over again, but we could not allow that. This conclusion was really a conclusion on a point of fact. Two Courts having agreed that there is no substance in the story of the commission agency, the point cannot be urged again before us. The result is that we must restore the decree of the trial Judge.

We have next to decide the question of costs. The plaintiff is c1e entitled to his costs before the Judge in Revision. Regarding the costs before us in the Court of Appeal we are of the view that the plaintiff should have applied to the learned Judge of the High Court to review his final decree, pointing out the error which was manifestly the result of an oversight. If the plaintiff had done so, the costs incurred by him would have been less. We cannot burden the defendant with the costs of a more expensive method of correction.

B. Awadalla, J — I concur.

Order accordingly