In The Matter Of Joseph Edward Biney (Deceased) & Ors V. Kwami Baisie (1939)
LawGlobal Hub Judgment Report – West African Court of Appeal
Conditions of Appeal to Privy Council—Motion to approve Sureties– -Notice of Motion to be served on all Respondents—Service on party’s solicitor not equivalent to service on the party—West African Court of Appeal Rules (1937).
Held : Application refused.
C. F. Hayfron-Benjamin for Mover.
W. Ward Brew (with him D. M. Abadoo and K. A. Korsah) for Respondents.
The following joint judgment was delivered :-
PETRIDES, C. J., GOLD COAST, BUTLER LLOYD, AG.C. J.,
NIGERIA AND STROTHER-STEWART, J.
On the 28th November, 1938, this Court granted conditional leave to appeal to the Privy Council. One of the conditions was
The Appellant within 3 months to give security with two sureties to the satisfaction of the Court in the sum of £500 for the due prosecution of the appeal and the payment of all such costs as may become payable to the Respondents in the event of the Appellant not obtaining an order granting him final leave to appeal or of the appeal being dismissed for nori-prosecution or of His Majesty in Council ordering the Appellant to pay the Respondent’s costs of the appeal. The question of the sufficiency of the security is to be decided by a single Judge of the Court upon motion by the Appellant, due notice thereof being given to the Respondents.”
On motion to approve sureties Mr. Justice Bruce, sitting as a single Judge of this Court, held that notice of such motion had been served on one of the four respondents and on one of the counsel for the respondents. He ruled that • all the respondents must be served with notice of motion and directed that this should be done.
This Court is now asked to vary or amend this order.
It is admitted in applicant’s affidavit that only Mr. Vincent Cann and Mr. D. Myles Abadoo, one of the solicitors of the respondents were served. In our opinion when this Court orders service on a party the order should, in the absence of any order for
substituted service, be strictly complied with as the West Africa: Court of Appeal Rules, 1937, which govern the procedure of thl, Court, do not provide that service on a party’s solicitor shall I.-, equivalent to service on the party.
The order of this Court has not been complied with and ti–.7 application is refused with costs assessed at £13 10s. 6d.