KOFI AMBRADU for himself as the head and on behalf of the stool members of the EWAN KWEKU ANONA family of Sekondi v. EKUAH MANSAH as successor of I. B. EPHRAIM (decd.) of Sekondi

Judgment:

This is an appeal from a judgment of His Worship Mr. P. W. C. Dennis delivered in the Magistrate's Court, Sekondi, on the 18th September, 1945 striking out an appeal by Ekua Mansah from the judgment of the Native Tribunal of Dutch Sekondi on the grounds that there was no evidence in the record that the conditions of appeal prescribed by the Native Tribunal on the 19th September, 1944 had been complied with. trate:-

The following is the record of the hearing before the learned Magistrate

"Contended by Counsel for Plaintiff-Respondent that Conditions of Appeal have not been fulfilled, as there is no bond against costs in the Record as required by the fourth condition of Appeal.

"Contended further by Counsel for Plaintiff-Respondent that there is no Record of letter from Defendant Appellant requesting appeal record to be prepared as required by Reg. 7 made under Section 135 of the N.A.O. Cap. 76 published under Reg. 14 of 1942 Gazetted on 7th March, 1942. Attention was also drawn to the extension of time for fulfilment of conditions of Appeal granted on 9th September 1944 (Appeal Record p. 53 and the Notice of Leave of Appeal in which it was stated that Leave of Appeal was granted on 19th September, 1944 (Appeal Record p. 54).

"Contended by Counsel for Defendant-Appellant that the bond was in fact entered into and that a Receipt for the filing of it was available and could be produced in Court in evidence. Contended that the bond was mislaid by the Tribunal which was no fault of the Defendant-Appellant. Case of Kojo Pon vs. Atta Fua (1) in Privy Council quoted and Dartey vs. Ansah (2). Contended by Counsel for Plaintiff Respondent that the Court is bound by the Record. Case of Staveley and Co. vs. Johnie (3) quoted.

"By Court: In the case of Kojo Pon vs. Atta Fua (1) it was held that a technical error in the bond should not prevent the administration of justice between the parties. In this case, however, there is no record in the Appeal Record of any bond having been entered. The Court holds that other evidence of a bond having been entered would be unsatisfactory, and that it has no alternative but to be bound by the Appeal Record, according to which the conditions of Appeal have not been fulfilled.'

On the 25th September, 1945, the appellant, through his counsel, Mr. Awoonor Williams, moved for an order to restore to the list the appeal which had been struck out. In support of the motion two affidavits were filed, one by Mr. Asmah, the Regi