Coussey, J.A. When this appeal was called for hearing in the Asantehene’s “A2” Court on the 23rd May, 1950, the members of the Court were the Akwamuhene, the Tafohene and the Saamanghene and the record shows that the record of appeal and the exhibits were read in the presence of the parties to the appeal. Owing to lack of time the further hearing was then adjourned and to enable the respondents to reply to the supplementary grounds of appeal filed by the appellant.
On the 31st May, 1950, the Court was differently constituted, the Ankobiahene, who is illiterate, taking the place of the Saamanghene. There is nothing on the record to show that the appeal record was read to the Ankobiahene. The Court proceeded to deliver judgment reversing the decision of the Asantehene’s Divisional Court “B1” after two questions had been put to the plaintiff- respondent, now appellant.
Mr. Prempeh for the plaintiff-respondent, now appellant, has submitted that the whole proceedings before the Native Appeal Court were a nullity because all the members who sat on the 31st May and delivered the judgment were not present throughout the hearing. This is true as regards the Ankobiahene for he was not present on the 23rd May when the appeal record was read, and Mr. Siriboe for the defendants-respondents has conceded that it is the practice in the Native Appeal Court to read out and interpret the record to the members of the Court. I would reluctantly uphold Mr. Prempeh's contention. As far as the record shows, the Ankobiahene came into the panel of the Court and took part in the decision without considering the evidence and exhibits on record and this vitiates the proceedings. There is no option therefore but to declare the proceedings before the Native Appeal Court a nullity and to direct that the peal be heard de novo in the Asantehene’s “A2” Court as it has not yet been heard by that Court properly constituted.
As the appellant did not object to the procedure adopted in the “A2” Court nor take the objection in the Land Court, Kumasi, which affirmed the decision of the Native Appeal Court, I am of opinion that the respondents should receive their costs in this Court. The costs of the abortive hearings in the Land Court and in the Asantehene’s “A” Court shall abide the result of the new hearing in that Court and the costs in Divisional Native Court “B” shall necessarily aide the result of the rehearing in the Native Appeal Court.
Foster-Sutton, P. I agree. Korsah, J. I agree.
Appeal allowed: order for re-hearing.