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Colonial Cases

El Haj v. Mustain, 1931


El Haj v. Mustain

Court of Appeal, Palestine
Source: The Palestine Bulletin, 29 December 1931




   Holding that the word "appeal" in its ordinary and proper sense means an appeal heard in open Court in the presence of the parties and not in Chambers in the absence of the parties, Mr. Justice Baker in the Court of Appeal has quashed the judgment of the Jaffa Land Court of Settlement Officer, Jaffa.

   The appeal was heard on December 24 before Mr. Justice Baker, Mr. Justice Khayat and Mr. Justice Frumkin, and the appellants were Shakib El Haj and Ibrahim Nagib El Haj and the Respondent Rashid Abdel Fatah Mustain.  The judgment is given in full below.


    This is an appeal from the judgment of the Land Court, Jaffa, whereby the judgment of the Court of Settlement Officer Jaffa area was confirmed.

   Counsel for Appellants upon the hearing of the appeal raised the  question as to whether there was a proper judgment before the Court, in view of the fact t that the appeal from the court of the Settlement Office Jaffa was decided not in open Court and in the presence of the parties but in  Chambers contrary to Art. 56 Para (2) of the Land Settlement Ordinance 1928.

   The before-mentioned article 56 para (2) of the Land Settlement ordinance 1928 reads as follows:

"Where leave to appeal is granted it shall be heard by the land court." (The Amending Ordinance of 1930 does not vary or alter this section.)

The Magistrate's Courts Jurisdiction Ordinance 1924 prescribing a similar right of appeal in Art. 4 para 5 does not specify whether the appeal shall be heard in open Court by the Appellate court, merely staring "leave to appeal may be granted in any case in which an appeal does not lie as of righty."

Manner Of Appeal

  The Magistrate's Courts Jurisdiction Amendment Ordinance of 1928, is equally silent with regard to the manner in which the appeal shall be taken.  However, it is prescribed in the Magistrate's Court procedure (Bentwich Vol. 2 page 456) of the 4th July 1918 amending article 43 of Ottoman Magistrate Law of 1913 with regards to appeals from the magistrate's court to the District Court:-

"The parties will not be summoned to appear before the Appellate court unless the court decides that their presence is necessary in the interests of Justice."

   This Rule of Court, however, has at some time been made applicable to appeals from the Settlement Officer to a Land Court, and no exception to the Ordinary hearing of appeals appears to apply thereto.

   I am therefore of opinion that Art. 56 in the absence of any similar rule can bear but one interpretation and that is that the words heard in its ordinary and popular sense means that the appeal must in fact be heard in open Court in the presence of the parties and not in Chambers in the absence of the parties.

   Accordingly the appeal is allowed and the judgment of the Jaffa Land Court quashed and the case returned for the parties to be heard in Court and a fresh judgment to be given.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School