Martin Fugah & Ors V. Emmanuel Nelson Lotsu Tamakloe & Anor (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Motion for final leave to appeal to Privy Council.

Conditional leave to appeal had already been granted and one of the conditions was that the appellants were to give a bond. Although suing representatively they executed the bond in their personal capacities.

Held : In view of the illiteracy of the appellants and following .7kolo Pon v. Ana Fua further time given to appellants to rectify their mistake.

There is no need to set out the facts. Frans Dove for Appellants.

R. E. Phipps for Respondents.

The following joint order was made:—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.

On this motion for final leave to appeal to the Privy Council being heard it has been pointed out on behalf of the respondent Tamakloe that the would-be appellants Martin Fugah and Kalenu Akoglo, who sued ” on behalf of themselves and as representatives of the Klevie Tribe of Awuna,” have not yet complied with the Order granting them conditional leave to appeal.

That Order which is dated the 2nd August, 1938, required the appellants to give a bond with two sureties in the sum of £500 within three months. In view of the representative capacity in which the appellants sued, the bond must obviously be given by them in their representative capacities. But instead of executing such a bond they executed a bond in their personal capacities. Appellants’ counsel admits that the bond. thus executed is defective, but craves the indulgence of this Court to set the matter right. We think that we should grant his prayer, in view of the fact that the error was made by illiterate Africans, who (foolishly

perhaps) attempted to conduct for themselves the appeal proceedings and of the attitude of the Privy Council towards such irregularities as expounded by Viscount Haldane in the case of Kojo Pon v. Atta Fua (P.C. 1874,1928 page 95 at page 97) in the words :—

” Their Lordships wish to say that in cases coming before ” them from the Dominions of the Crown, their first consider” ation always is to secure, if possible, that substantial ” justice is done.”

It is accordingly ordered that the appellants be at liberty to give a further bond on or before the 28th day of February, 1939, to comply with the conditions of appeal, and that thereafter this application for final leave to appeal be renewed, and it is further ordered that the question of the sufficiency of the bond and of the security offered is to be decided by a single Judge of the Court upon motion by the appellants, due notice thereof being given to the respondent.

The respondent is awarded costs upon this motion assessed at five guineas.