Czeczowiczka v Markus (App. Nos. 89/1934 & 90/1934 (consolidated).) [1935] EACA 96 (1 January 1935)

## PRIVY COUNCIL APPEAL.

App. Nos. 89/1934 & 90/1934 (consolidated).

### Before LORD BLANESBURGH, LORD MACMILLAN and SIR LANCELOT SANDERSON.

#### BRACIA CZECZOWICZKA

#### $\mathbf{1}$

### MARKUS.

# (And connected Appeals, consolidated.)

# Practice—Eastern Africa—Appeals—Security for costs—Amount fixed by Order in Council-Condition precedent-Non-compliance—Irregularity—Appeals quashed.

Petition by the respondents in the appeals to quash appeals from four judgments of the Court of Appeal of Eastern Africa deciding (1) that two bankruptcy notices served by the appellants, Bracia Czeczowiczka, on the petitioners, Otto Markus and Rudolf Loy, who were respondents to the appeals, should be set aside, and (2) that receiving orders in bankruptcy should not be made against the petitioners on the appellants' application for their committal to prison in execution of a civil judgment.

By the Order in Council under which the appeals were brought, the Eastern African (Appeal to Privy Council) Order in Council, 1921, it is provided (inter alia) that:-

$(6)$ Leave to appeal . . . shall only be granted by the Court in the first instance—(a) Upon condition of the apellant . . . entering into good and sufficient security, to the satisfaction of the Court, in a sum not exceeding Rs. 7,500 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 . . . His Majesty in Council ordering the appellant to pay the respondent's costs of the appeal."

On June 14, 1934, conditional leave to appeal to His Majesty in Council was given by the Court of Appeal of Eastern Africa from all four judgments by an order which provided (inter alia) as follows: "Security for five pounds to be paid forthwith." In making that order the Court of Appeal relied on the fact that the respondents were judgment debtors of the appellants for a large sum, which fact, in the opinion of the Court of Appeal, was held to justify an order for nominal security. Orders giving final leave to appeal were made on September 13th, 1934.

The petitioners submitted that the jurisdiction of the Court of Appeal for Eastern Africa to admit an appeal to His Majesty in Council was limited by the terms of the Order in Council of 1921 (supra), and that the effect of the order made by the Court of Appeal in the present case was to dispense with the performance by the appellants of what the Order in Council prescribed as a condition precedent to an appeal, namely, that they should give good and sufficient security for the costs of the appeal, and that consequently the order was not one which the Court of Appeal could lawfully make.

The petitioners sought to have the appeals quashed as incompetent, and relied on Ohene Moore v. Akesseh Tayee (1935) A. C. 72), where a similar point was raised, and in particular on the observations of Lord Atkin in that case at page 75.

The respondents cited In re The Contract and Agency Corporation (Limited) (1888, 57 L. J. Ch. 5).

Ronald Smith for the petitioners.

Cyril Asquith for the respondents.

The Board, after consultation, held that the order of the Court of Appeal could not be reconciled with the terms of the Order in Council, and they allowed the petition and quashed the appeals, without prejudice to any application the appellants might be advised to make for special leave to appeal.