The following joint ruling was delivered:
When this appeal was called on for hearing Mr G. B. A. Coker, on behalf of the respondents, submitted that the appeal was not properly before this Court since the Bond which been executed in purported compliance it the requirements of Rule 17 of the West African Court of Appeal Rules, 1950, was defective In that-
(i) It was not executed by the appellants in the representativc capacity in which they had brought the action; and (ii) It is not expressed to be executed in favour of the respondents to this appeal. Notice of the preliminary objection as given in accordance with Rule 21 (1) of the rules.
Mr Coker also pointed out that apart from the defects in the Bond already mention a number of the appellants were not parties to it, and he invited us to hold that these defects were of such a nature as to affect the very existence of the appeal.
Mr David, for the appellants, admitted that the Bond is defective in the respects contended by Counsel for the respondents, but urged that they only have reference to conditions imposed by the Registrar of the Court below under Rule 17, that the omission to enter into a satisfactory Bond was not a failure by his clients to comply with a statutory provision, and that in these circumstances, since a genuine mistake had been made in this case, the appellants ought to be given the opportunity of perfecting the Bond so that the appeal can be heard on the merits.
Section 8 of the West African Court of Appeal Ordinance, Cap. 229, provides that, subject to the provisions of section 9 “the Court of Appeal shall not entertain any appeal unless the appellant has fulfilled all the conditions of appeal imposed by the Court below as prescribed by rules of Court,” and section 9 of the Ordinance reads:
“Notwithstanding anything hereinbefore contained the Court of Appeal may entertain any appeal from a Court below on any terms which it thinks fit.”
The authorities dealing with the proper construction to be placed on section 9 of the Ordinance Were reviewed in the judgment of Lewey J. A. in the case of the Chairman L.E.D.B. v. Chie} Oloto, reported in W.A.C.A. Selected Judgments January-May 1950, page 89, and the conclusion reached by him, shortly put, was that the section enables this Court to entertain an appeal if the imperfection complained of is of a minor or technical nature such as a failure strictly to comply with a condition imposed by the Court below, under the rules of Court, but that it does not cover a case where there is a defect through failure to comply with a statutory provision, the effect of which is that there is no appeal before the Court.
We respectfully agree with the conclusion reached by Lewey, J. A., and since the omission in this case clearly comes within the first category of cases it can properly be dealt with under the powers conferred by section 9. That being so, in the circumstances here, we think that the appellants should be given an opportunity of repairing the omission, and we accordingly direct that the Bond be remitted to the Court below, and that the appellants be given four weeks from the 20th day of October, 1955, within which to comply with the conditions already imposed by the Registrar of the Court below under Rule 17 of the W.A.C.A. Rules.
The respondents will have their costs of this hearing fixed at £5-5s-od.
Bond remitted for amendment.