pg 137
Appeal Court,
27th Oct., 1941.
Appeal-Conditional
leave-Conditions eave given.
A bond was filed for £25 instead
of 25 guineas to secure costs:
Held: Non-compliance with a
condition is fatal and that at
present the appeal was not
before the Court. Appeal struck
out, without prejudice to any
action the appellant may desire
to take to perfect the appeal.
Cases cited:-
Adeseye v. Leigh
(unreported) Full Court 1933
Kojo Pon v. Atta FlIa
P.C. No 48 of 1925.
A. L. Johnson
for Appellant. P. Oddie
for Respondent.
The following joint judgment was
delivered:-
BAKER, BROOKE
AND JEFFREYS, JJ.
In this appeal conditional leave
to appeal was given on the 3rd
April, H141, and one of the
conditions was that the
appellant do furnish a bond for
twenty-five guineas to secure
the costs that may be awarded to
defendant.
On the 17th April a bond was
filed for twenty-five pounds;
conditions accordingly were not
perfected when final leave was
given. A similar case came up
before a Full Court in 1933 in
the case of Adeseye
'v. Leigh
and there the Court decided that
the non-compliance with the
condition was fatal and the
appeal was struck out, but it
must be remembered that when the
appeal was heard section 8 of
the West African Court of Appeal
had not been enacted which we
are satisfied contains terms
much wider than the old rule 7
of Order 53 of the Supreme Court
Rules. The attention of the
Court in this case, moreover,
was not drawn to the Privy
'Council decision ill the case
of Kojo Pon v. Altta Fua
No. 48 of 1925. In this case the
bond had not been signed by
appellant and their Lordships in
their judgment stated they
desired to say that
"in cases coming before them
from the Dominions of the
"Crown, their first
consideration always is to
secure, if "possible, that
substantial justice ii done.
That may not
pg138
" always be possible. There
may be conditions in the
local " law or in the rules
which preclude the
possibility of getting "
round -technical obstacles
and doing complete ·justice.
But " they think that in the
case of the rules of
procedure in the "Gold Coast
Colony there are no such
obstacles. The " Court was
invested with the widest
powers, and it might " have
adjourned the hearing of the
appeal until a proper " bond
was executed, or it might
have said that an affidavit
"was sufficient; and that
was the more incumbent on
the "Court because its own
Registrar had accepted the
bond " executed by Kwabena
on behalh of the Appellant.
" Under these conditions
there Lordships think that
to " refuse to hear the
appeal merely on the ground
of what " might have been a
mere technicality about the
bond was to ,. fail to do
justice as between the
parties, and they are of "
opinion that the case must
be remitted to the Court
below " to deal with it
again, hear it, and if
necessary, get some " formal
proof of Kwabena's
authority."
Following this decision we
are of opinion that at
present there if no appeal
before us; this opinion is
without prejudice to any
action the appellant may
desire to take to perfect
the appeal. Respondent is
awarded seven guineas costs.
