NKWANAHENE NANA ADU KOFI III V. BECHEMHENE NANA FOSUGYEABUOR

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND BANNERMAN, J. This is an application to set aside, vary or discharge an order dated the 13th February, 1942, made by Doorly, J., sitting as a single Judge of the Court. We clearly have the necessary powers under Rule 7 of the rules governing appeals to the Privy Council.

Upon the 19th November, 1941, this Court granted the appellant conditional leave to appeal to the Privy Council, one of the conditions being:-

“(a)T he appellant within three 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 respondent in the event of the appellant “not obtaining an order granting him final leave to appeal or of the

“appeal being dismissed for non-prosecution or of His Majesty in “Council ordering the appellant to pay the respondent 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 respondent” .

In pursuance of the last sentence of this condition the appellant on the 12th February, 1942, applied by motion to the single Judge for an order “approving of Krontihene Kwesi Adei “and Gyasihene Kwaku Kusi as sureties”. The motion was supported by affidavit und was opposed by the respondent who filed a counter-affidavit aimed at showing that the sureties offered were heavily in debt and that the security was not sound. At the hearing of the motion the appellant asked and was granted leave to call evidence to rebut the respondent’s counter-affidavit.

He called his evidence and after a hearing lasting two days the learned judge made the following order: “I find the security “offered is sufficient provided that the sureties sign the bond for “themselves and for their families by and with the consent of “their families” . It is that Order which we are now asked to set aside, vary or discharge.

It is clear that the application to approve sureties was an application to approve the two men offered in their individual capacities. Paragraphs 3 and 4 of the affidavit in support of the application read:-

“3. That the said Stool is submitting as such sureties the follow- “ing persons Krontihene Kwesi Adei and Gyasihene Kwaku Kusi all “of Nkwanta,

“4, That to the best of my knowledge and belief they each own “property houses and cocoa farms value more than five hundred “pounds (£500)”

There is no suggestion at that point of stool or family property being involved. The respondent came before the Judge to oppose the sufficiency of the two personal sureties offered. He clearly succeeded, otherwise the Judge would not have made the Order he did. Nowhere in the proceedings is there any application to approve the respective families as sureties. And we think that the respondent is right in his contention that he was not called upon to contest an application for the families to be accepted as security and that the learned Judge went beyond the directions issued by this Court in finding sufficiency in securities which had not been offered and of which the respondent had hall no formal notice: and we think that the respondent has good cause for asking us to set aside the unusual and undesirable order made. We say “unusual” and “undesirable” advisedly. The Order is unusual because in our experience this is the first time that it has been sought to bind stool or family property by a bond of this nature. We regard it as undesirable because it would create a

precedent with dangerous and undesirable features from more than one point of view. Such a security must always be highly unsatisfactory to a respondent for it is not unlikely that he would find the greatest difficulty in enforcing the bond; when the time came to do so he might well find the stool holder or head of the family dead or destooled and all the other members of the stool or family strenuously denying his right to bind their property or their knowledge that he had purported to bind it.

For these reasons we set aside the Order made on the 13th February, 1942, by Doorly, J., sitting as a single Judge of the Court, und in- lieu thereof make the following order:- “The sureties offered are not approved”.

We appreciate that the making of this order may embarrass the appellant in the prosecution of his appeal, as the three months allowed him in which to give security have already expired. But we opine that it is not the intention that the doing of substantial justice between the parties should be thwarted by rules of procedure. We accordingly order that the period between the 11th February, 1942 (the day before the Court was moved) and to-day’s date shall not count towards the said period of three months. That will put the appellant in the same position as if the sureties he offered had been rejected upon the 12th February, 1942.

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