JELR 81216 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1946-49 12 WACA 167-169
Core Terms Beta
adjoa kwaseko
consent of all parties
korkoi mota
kwesi ewudzi
second respondent
26th march
admitted fact
appellant replies
chief commissioner
constitution of the court of the paramount chief
constitution of the native court
court of the chief commissioner
court of the chief commissioner of ashanti
great regret
great store
judicial rulings of superior courts
new member
next development
none of the parties
only ground of appeal
perusal of the record
said parties
set aside
suggestion of the court
time of various courts
undue regard
whole of the proceedings
written declaration

 Harragin; C.J. In this case the only ground of appeal that has been argued before us reads as follows:- “3 (a) Because the constitution of the Native Court varied from time to time as the trial proceeded so that the Members who finally gave judgment had not each of them personally seen and heard each and every witness of every one of the parties as well as the parties themselves give evidence nor had an opportunity of watching the demeanour of all the said parties and their witness to be able to form a fair opinion as to their veracity.”

This point was, at the suggestion of the Court, argued in limine.

The facts are that this case was started on the 13th August, 1935, and has been occupying the time of various courts at lengthy intervals until the present date.. It was first heard by the Asantehene’s “A”Court. All the evidence was recorded and an inspection of the land in dispute ordered.

On the 26th March, 1945, the same Court, (i.e. the Asantehene's “A” Court) though differently constituted, made an order joining the second respondent as a co-defendant, and on the 11th October, 1945, this differently constituted tribunal with yet a new member, the Akwamuhene, proceeded to re-hear the case, and wishing to save time no doubt, and with the consent of all parties, they proceeded to read the evidence given and recorded before the court that first tried the case. The evidence of the co-defendant and his witnesses was then taken and having recalled one or two witnesses who gave evidence originally, the Asantehene’s “A” Court proceeded to give judgment, which judgment was varied on appeal to the Court of the Chief Commissioner of Ashanti from whose judgment this appeal is being heard.

There is one fact which is beyond dispute, namely, that the Court of first instance (the Asantehene’s “A” Court) who gave judgment in this case had the evidence placed before them in two different ways. They read the case for the plaintiff and defendant from the evidence recorded by a differently constituted tribunal and they then proceeded to hear viva voce the evidence of the co- defendant and recalled before them one or two of the witnesses who had given evidence before the original court.

Counsel for the respondent admits that this procedure is irregular, but alleges that the irregularity was cured by the fact that all the parties consented to it, and further draws our attention to the admitted fact that undue regard should not be paid to irregularities in procedure in native courts. To this the appellant replies that, although an irregularity may be cured by the consent of all parties thereto, nevertheless it was quite impossible for parties by consenting to confer such jurisdiction on a court that it can ignore judicial rulings of superior courts.

The authorities are quite clear on the subject. In Nana Essell Tawiah III v. Kwesi Ewudzi (1) it was held that the proceedings were a nullity because certain members who gave judgment in the tribunal were not present during the whole of the proceedings. Again in Akosua Otwiwa and - Anotbe,. v. Adjoa Kwaseko (2) it was held that the constitution of the Court of the Paramount Chief having varied, the proceedings before it were a nullity.

In those two cases although clearly none of the parties objected to the procedure, there is no evidence as in this case that they actually consented to it, ii, and the respondent sets great store by this fact. The case, however, of Florence of Plange and Others v. Korkoi Mota. and . Others (3) is directly in point. There “the parties agreed that the proceedings already taken should be read over to the newly constituted tribunal and that the hearing should continue before it. A written declaration to this effect was signed by the parties”.

In that case the proceedings were declared a nullity and on appeal to this Court the judgment was upheld. That case is indistinguishable from the one which is now before us, and we are bound by the judgment with which we respectfully agree. It is impossible seriously to consider the suggestion that a judgment, which is by law a nullity, can be converted into a binding lawful judgment by the agreement of the parties.

It is with great regret that we find ourselves obliged still further to prolong this litigation particularly as it is difficult for illiterate people to understand what they will undoubtedly imagine to be the unnecessary technicalities of British justice, but it is a principle from which no Court could ever depart. We are aware that most of the native courts appreciate the fact that those giving judgment must have taken part in the whole trial and in fact from a perusal of the record in this case it is clear that this particular native court was well aware of that ruling, but failed to appreciate the difference between having evidence read to them and listening to the oral evidence from witnesses in the box. One of the principal duties of a court of first instance is to form an opinion as to the credibility of witnesses by their demeanour in the box, which is quite impossible if the evidence is read.

And lastly, should this procedure be permitted the next development would be that one of the parties would send his evidence already written out and, if there was no objection by the other side, the court would proceed to adjudicate upon the matter and learned Counsel would endeavour to support this procedure by arguing that it was never objected to by the other side.

In these circumstances the trial before the Asantehene’s “A” Court is declared to be a; nullity, and we direct that the Chief Commissioner in the exercise of the powers which he possesses as a Court of Appeal do set aside the judgment of the Asantehene’s “A”, Court including the order as to joinder and do rehear the whole cause de novo.

The appeal is allowed. The judgment of the Chief Commissioner’s Court including the order as to costs is accordingly set aside. At the rehearing all costs incurred and to be incurred in any Court except this Court will be in the discretion of the Chief Commissioner's Court.

The appellant is awarded costs in this Court assessed at £42 15s. 0d. against each respondent.

Appeal allowed.