Daniel Oladele Ogunmola V. Brimah Igbo (1941)
LawGlobal Hub Judgment Report – West African Court of Appeal
Appeal—Conditional leave—Conditions not perfected when final leave given.
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. Koji) 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, 1941, 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 in the case of Rojo Pon v. Atta 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 is done. That may not
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 completejustice. But they think that in the cage 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 inmunbent -on the Court because its own Registrar had accepted the bond executed. by Kwabena on behalf of the Appellant.
” Under these conditions there Lordships think that to refuse to hear the appeal merely on the gam= 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 is 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.