Application for leave to appeal in forma pauperis-Power of West African Court of Appeal to grant such leave-Pension payable to applicant must be taken into account in assessing his means.

The Plaintiff-Appellant applied to the West African Court of Appeal for leave to appeal against a judgment of the Supreme Court of the Colony of Sierra Leone, and for an order that he be at liberty to prosecute such appeal in forma  pauperis. The Court held that it had power to make such an order under the following provision of the West African Court of Appeal (Civil Cases) Ordinance, 1929:­"Notwithstanding anything herein before contained the Court of Appeal may entertain any appeal from a Court below on any terms which it thinks fit." It was further held, however, following Kydd v. Liverpool Watch Committee, 24 T.L.R. 257, that a pension payable to the applicant as an ex-Government servant must be taken into account in assessing his means, and that he had failed to bring them below the prescribed amount. In the circumstances the Court could not do more than make an order dispensing with the payment of Court fees.

E. S. Beoku Betts for the Plaintiff-Appellant.

H. J. L. Boston for the Defendants-Respondents. The following judgments were delivered:-

KINGDON, c.]. NIGERIA.

This is an application for leave to appeal against a judgment of Macqnarrie, J. delivered on the 8th February, 1932, and further for an order that the applicant may be at liberty to prosecute such appeal in forma pauperis.

The application for leave to appeal is in order, and this Court has already intimated that it will be prepared to grant it. The question then arises whether leave should be given subject to the usual conditions or whether the application to proceed in forma pauperis should be granted. On this, two points arise, viz:­First, has this Court power to grant leave to prosecute an appeal in forma pauperis? and secondly, if it has, should the grant be made on the merits of this case?

The applicant has already made an application to the Court helow for leave to appeal in forma pauperis and been refused. But the present application is not an appeal from that decision either in form or in substance for the powers of this Court in respect of the matter in question are very much wider than those of the Court below. In particular section 6A of the West African Court of Appeal (Civil Cases) Ordinance, 1929, gives this Court a very wide discretion both in the matter of entertaining an appeal and on the question of the terms upon which leave may be granted. It reads as follows :-

"Notwithstanding anything hereinbefore contained the Court of Appeal may entertain any appeal from a Court below on any terms which it thinks fit."

         At first sight it might appear that rule 8 of the West African Court of Appeal Rules, 1929, is in conflict with this. R.ule 8 says that every applicant shall give security either by deposit or by bond for the respondent's costs. This seems, by implication, to rule out any procedure in forma pauperis. But rule 30 of these same West African Court of Appeal Rules indicates clearly that these Rules do not pretend to be comprehensive. Rule 30 lays down the practice and procedure to be adopted in all matters for which no express provision is made. The procedure in forma pauperis is one of these matters for which no express provision is made. It is therefore governed, in accordance with rule 30, by the practice and procedure hitherto prevailing in appeals in the Supreme Court of Sierra Leone. We are of opinion that section 6A of the West African Court of Appeal Ordinance gives us power to entertain the application now before us. We express no opinion as to the powers of the Court below in regard to the granting of leave to appeal on conditions other than those imposed by rule 8.

Upon the merits we accept the affidavit of the applicant, which is the .only evidence we have before us, but it does not enable us to grant him the order he desires. In paragraph 5 of his affidavit the applicant states that besides his wearing apparel and the subject matter of this action he is not worth the sum of £5, but in the next paragraph he states he is in receipt of a pension of £2 10s. monthly.

These facts are on all fours with the facts in the case of Kydd v.

Liverpool Watch Committee 24: T.L.R. 257.

In that case an applicant for leave to appeal in forma pauperis made an affidavit that he was not worth £25, his wearing apparel and the subject matter of the appeal alone excepted, and that he was in receipt of a pension as a retired police constable of £1 8s. a week, but that the amount was inadequate to provide the necessities of life for himself and his wife after paying 8s. 6d. rent. The pension was not assignable except for the benefit of his family, and it was held that the appellant had not shown that he was not worth £25 within the meaning of Order 16 rule 22, of the Rules of the English Supreme Court and therefore he could not be admitted to appeal in forma pauperis.

On that precedent we are bound to hold that the present applicant has not shown that he is not with the sum of £5, and to refuse his application to appeal in forma pauperis.

Counsel for the applicant has asked us, if we do not grant him leave to appeal in forma pauperis, at any rate to make an order dispensing with payment of fees under rule 31 of the Appeal Court Rules.

We think that we have power to make such an order, and that in all the circumstances of this case it would be a just and proper one to make. The order Will be that the applicant do have leave to appeal subject to the following conditions :-

(1) The appellant shall within one month from this date give security to the satisfaction of the Court below either by deposit or by bond in the sum of 25 guineas for payment of all such costs as may be awarded to any respondent by the Court.

(2) The appellant shall be exempted from the payment of the fees specified in Appendix B to the West African Court of Appeal Rules, 1929, and from payment into the Court below of the amount of the expense of making up and transmission to the Court of the Record of Appeal.

(3) The appellant shall within one month from this date give notice of the appeal to the defendants, and to such others, as respondents, as the Court below think fit to direct.

MACQUARRIE, ACTING C.]. SIERRA LEONE.

I concur.

BERKELEY, J.

I concur.