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MARTIN FUGAH AND OTHERS
V.
EMMANUEL NELSON LOTSU TAMAKLOE AND ANOTHER
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST (GHANA)
29TH DAY OF NOVEMBER, 1938
2PLR/1938/40 (WACA)
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OTHER CITATION(S)
2PLR/1938/40 (WACA)
(1938) IV WACA PP. 172-173
LEX (1938) – IV WACA PP. 172-173
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BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
WEBB, C.J., SIERRA LEONE
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BETWEEN:
MARTIN FUGAH AND KALENU AKOGLO BOTH OF KLEVIE, AWUNA, ON BEHALF OF THEMSELVES AND AS REPRESENTATIVES OF THE KLEVIE TRIBE OF AWUNA — Plaintiffs-Appellants
AWUMEE GBEDEMAH — Co-Plaintiff
AND
EMMANUEL NELSON LOTSU TAMAKLOE — Defendant-Respondent
CHIEF KWAKU ATTIPOE — Co-Defendant
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REPRESENTATION:
FRANS DOVE — for Appellants
R. E. PHIPPS — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER — SUBSTANTIAL JUSTICE:- Need for court to do substantial justice with regards to irregularities — Motion for final leave to appeal to Privy Council — Where conditional leave to appeal had already been granted and one of the conditions was that the appellants were to give a bond but although suing representatively they executed the bond in their personal capacities — Attitude of/treatment by court thereof
APPEAL:- Bond set by court as condition for granting leave to appeal — Action brought in representative capacity — Where bond executed in personal capacity — Defective thereof — Whether curable — Relevant considerations
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JUDGMENT OF THE WEST AFRICAN COURT OF APPEAL
Held:
In view of the illiteracy of the appellants and following Kojo Pon v. Atta Fua further time given to appellants to rectify their mistake.
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MAIN JUDGMENT
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 in 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 o. 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 consideration 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, and 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.