Botchway & Another V. Nassar & Others (1946)
LawGlobal Hub Judgment Report – West African Court of Appeal
Practice and Procedstre–Faikare to comply with conditiotis of app palof Court under section -8 of West African Coral of Appeal Ordinatera.
Where an appellant fails to fulfil the conditions of appeal within the time allowed, and even though he has, after the expiry of the time, made a misconceived application for the purpose of curing the defect, the Court will exercise its powers under section 8 in order to secure that substantial justice is done.
Sensbits. the Court will also exercise its powers where the appellant’s default amounts to no more than a technicality.
Cases referred to:
- Kojo Pen v. Alta Fag (1927), A.C. 693; 96 L.J.P.C. 121; 37 L.T. 706 P.C.
- Doak, Kodiak,’ v. Hotakrate Kudzu’s, .6 W.A .C.A. 14.
Preliminary objection by respondent
Lokko for Appellants.
Dom for Respondents.
The following judgment was delivered:
Baker. Ag. C. J. Upon the hearing of this appeal, counsel for the respondents raised the pfeliminavy objection that there was no appeal before the Court.
The facts which are not disputed are these: On the 7th day of August, 1945, judgment was given in the said suit and on the 27th September, 1945, plaintiffs applied for conditional leave to appeal against the said judgment, and conditional leave was granted on the 28th September, 1945. One month was prescribed within which time the conditions were to be fulfilled; these said conditions were not fulfilled, and on the 10th day of December, 1945, a motion was filed on behalf of the plaintiffs asking for special leave to appeal pursuant to the provisions of rule 16 of the West African Court of Appeal Rules, 1937, and was supported by an affidavit by the first plaintiff dated the 4th of February, 1946, in which she deposed that from the 29th September, 1945, until the 26th November, 1945, she was under medical treatment and consequently was unable to fulfil the conditions of appeal prescribed by the Court on the 28th September, 1945.
The rule under which the application was made (rule 16) reads as follows:—
” 0) A would-bc rippellaa t against a final judgment or doaision who has failed to make application to the Court below for Conditional leave to appeal within the period of three months prescribed in rule 11, may at any time within a further period of three months apply to the Court for special Conditional leave to appeal, and the Court, if satisfied that there has been good cause or reasonable excuse for the failure, may in its discretion grant special Conditional leave to appeal, subject ‘installs inistandis, to the conditions set out in rule 12. Upon such grant being made the subsequent proceedingii up to the filing of the appeal shall be had before the Court below and shall be governed by the provisions of rules 12 to 15 inclusive.
” (2) After the expiration of such further period of three months the Court shall have no jurisdiction to entertain an application for special conditional leave to appeal.”
The application was opposed by the defendants who submitted that the
applicant not having applied for an extension of time under rule 15 could not now apply for special conditional leave to appeal, having been granted conditional leave to appeal under rule 11, on the 28th September, 1945, and that it was only where there had been failure to apply for conditional leave to appeal that application could be .made for special conditional leave to appeal.
Plaintiffs submitted that they could not now make an application for an extension of time to fulfil the conditions imposed by the Order of the 28th September, 1945, and that they now abandoned this conditional leave as though application had not been made for leave to appeal.
The Judge after hearing the above submissions decided:—
” I read the words in rule 16 of the West African Court of Appeal Rules who has failed to make application to the Court below for conditional leave to appeal within the prescribed period of three months ‘ to mean who has failed for reasons to comply with the terms of a conditional leave granted within the prescribed period of three months accordingly special conditional leave to appeal is granted.”
We are of opinion that the before-mentioned rule 16 is perfectly plain and unambiguous and can only be construed to refer to an application for conditional leave to appeal and not failure to comply with terms imposed by the Order itself. If the rule had intended to include non-compliance with the Order the draftsman would most certainly have said so.
The application for special leave in our opinion was misconceived and the Judge was wrong in granting it and accordingly the whole of these proceedings were, and are, a nullity. Having arrived at this decision we will next consider whether we have power under section 8 of the West African Court of Appeal Ordinance to afford the would-be appellant relief, that section prescribes:—
” Notwithstanding anything hereinbefore contained the Court of Appeal may entertain any appeal from a Court below on any terms it thinks just.”
The position of plaintiffs on the 10th day of December, 1945, when they filed their application for special leave to appeal was that the time within which they were to have fulfilled the conditions of appeal on their original application had elapsed and it is now some ten months since judgment was given against plaintiffs.
It may be mentioned that under rule 15 it was within the province of the defendants upon the failure of the would-be appellants to take the prescribed steps within the time allowed to apply to the Court for the appeal to be struck out. Defendants, however, made no such application.
There are several reported cases dealing with the allowance of appeals when there has been some defect in the prescribed conditions, the case of Kojo Pon v. Alta Fua (1) was decided by the Privy Council before section 8 of the West African Court of Appeal Ordinance had been enacted but it lays down a general principle. In this case the bond to secure costs 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 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 *night 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 behalf of the appellant.
” Under these conditions their 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.”
In the case of Davi° Kudiabor v. Hotohoke Kudanu (2), application for leave to appeal was made three months out of time and the Court after considering Section 8 of the West African Court of Appeal Ordinance dismissed the appeal. Deane, C.J., however, in his judgment dismissing the appeal, on the grounds that the before-mentioned section 8 following at that time section 7 which prohibited any appeal unless the appellant had fulfilled all the conditions of appeal imposed by the Court below, gave the Court power to dispense with the strict requirements of the law as laid down in section 7; he then proceeds to state:
” If therefore the preliminary objection were that one of the conditions of appeal laid down by the lower Court had not been complied with this Court would have under section 8 the right to entertain the appeal if it thought it just to do so notwithstanding section 7.”
We do not agree that section 8 only governs section 7 but governs all the sections contained under the heading ” Civil Appeals”, unless there is anything in them which logically must be excluded from the operation of section 8.
The would-be appellant obtained her conditional leave to appeal and no doubt would have fulfilled the conditions imposed, but for the fact of illness. After her recovery she might have applied to the lower Court for an extension of time to enable her to fulfil the conditions which the Court has a discretion to allow. Instead of doing this, however, she, through her counsel, inadvertently made an application under rule 16 for special leave to appeal which we have held she was not able to do. She, therefore, in our opinion cannot be considered to have been dilatory, but pursued her application in an ill advised manner For these reasons we are of opinion that it would be unjust to dismiss the appeal and would result in a failure to do justice and that this is a case where the Court should exercise its powers under section 8. We therefore grant her a further month from the date of this judgment to fulfil the conditions imposed by the Order of the lower Court of the 28th September, 1945.
The respondents will be allowed costs on this preliminary issue assessed at seven guineas. If the appellants do not prosecute the appeal, respondents to be at liberty to apply for the cost of the record which is understood to be OS 2s. Od.
Preliminary objection overruled.
