Division: IN THE HIGH COURT, ACCRA
Date: 29 JANUARY, 1964
Before: SOWAH J
JUDGMENT OF SOWAH J
This is an appeal from the ruling of the learned circuit judge when he held against the appellant that the bail bond which he entered into to secure the appearance of one Uttam Daswani subsisted at the time the police wanted the person and that failure to produce the principal constituted a breach of his obligations under the bond, and subsequently the appellant forfeited the sum named under the bond.
By section 15 (3) of the Criminal Procedure Code, 1960,1 where a person is taken into custody and it appears that the enquiry into his case cannot be completed forthwith, the officer, i.e. the police, “may release the said person on his entering into a bond, with or without sureties for a reasonable amount, to appear at that police station and at such times as are named in the bond, unless he previously receives notice in writing from the officer of police in charge of that police station that his attendance is not required, and any such bond may be enforced as if it were a bond conditional for the appearance of the said person before a court for the place in which the police station named in the bond is situate.”
I must here observe that learned assistant state attorney has argued that the words “and at such times as are named in the bond” should be interpreted as meaning “and such times as are to be named in the bond.” Learned state attorney argued further that to give these words their literal meaning that the times at which the party should appear at the police station must appear on the face of the bond would be to give the words too restrictive a meaning.
Be that as it may, the point has not arisen for consideration in this matter but if it did I would give these words their ordinary grammatical meaning, namely that the times at which the principal party should appear must be named in the bond.
In this case however the surety’s obligation was to produce the principal party on 7 July and “at any subsequent dates as directed by the officer in charge of central police station unless before such time or times he received notice in writing from the officer in charge of central police station that his attendance is not required.”
In my view a bail bond like a civil bond is a contract under seal in which the contracting parties undertake certain exclusive obligations but which obligations are taken for the benefit of the one or the other contracting party or some third party. For the bond to be enforceable against the obligees or principal party and sureties the party seeking to enforce it must show that if there were any conditions precedent to the enforcement of the obligations undertaken by the obligees, that condition precedent has been fulfilled.
It appears to me that the bond in this case specifies that the principal must appear at a certain date and thereafter at dates to be named. The principal party appeared on 7 July 1963 and he was told to go away without a date being named. There was an obligation on the police to name a date at every appearance of the principal party. It was a condition precedent to the fulfilment of the obligation by the surety that a date was named and failure to fulfil this condition precedent constitutes a discharge of the obligations of the party.
Learned state attorney has argued that the only way the bond could be discharged was when the police gave notice in writing that the person was no longer required before a named date or dates. In my view even though a bond or contract may itself stipulate conditions for the discharge of the parties from their obligations a failure on the part of one of the contracting parties to fulfil his side of the contract will discharge the other party from his obligation and such failure is a defence to an action brought to enforce the obligations under the contract.
I am of the opinion that the failure of the police to name a date on which the principal party should appear discharged the surety of his obligations under the bond and the bond became extinct in so far as it affected the surety. It was a condition of the bond that the police should name a date for the appearance of the principal party at the police station.
This they failed to do. For these reasons I will allow the appeal and set aside the ruling of the circuit judge.
DECISION
Appeal allowed.
N.A.Y.
