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ODIKRO ESIAM OF AYINASU
V.
JOSEPH SAM BREW OF ASAFA
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
21ST DAY OF DECEMBER, 1951
2PLR/1951/32 (WACA)
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OTHER CITATION(S)
2PLR/1951/32 (WACA)
(1951) XIII WACA PP. 340 – 341
LEX (1951) – XIII WACA 340 – 341
BEFORE THEIR LRODSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.
KORSAH, J.
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BETWEEN:
ODIKRO ESIAM OF AYINASU – Plaintiff-Respondent-Appellant-Appellant
AND
JOSEPH SAM BREW OF ASAFA – Defendant-Appellant-Respondent-Respondent
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ORIGINATING COURT(S)
Appeal from the Land Court (Central Judicial Division, W.A.C.A. CIV. APP. 128/49)
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REPRESENTATION
C. F. Hayfron-Benjamin — for the Appellant
J. W. de Graft Johnson — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER:- No case pending in the Native Appeal Court – Effect of Transfer for determination of Land Court – Operation of section 51 of the Native Courts (Colony) Ordinance, 1944
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CASE SUMMARY
The appellant was the plaintiff.
This appeal first came before the Native Appeal Court which, after granting an adjournment, heard the case in the absence of the then plaintiff-respondent, and allowed the appeal. The appellant filed a motion asking the Native Appeal Court to set aside its decision and re-hear the appeal on the ground that the hearing took place ex parte. The Native Appeal Court granted the motion and fixed the appeal for re-hearing, but on two occasions the appellant failed to appear and the Court withdrew its consent to the re-hearing of the appeal and confirmed its earlier judgment.
Finally, an order was made transferring the case to the Land Division of the Supreme Court.
The question before the Land Court and before this Court was, whether there was anything pending before the Native Appeal Court which could be transferred to the Land Court.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. The Native Appeal Court is expressly authorised to hear appeals ex parte.
2. The Native Appeal Court having dismissed the appeal, it was functus officio, and section 51 of the Native Courts (Colony) Ordinance, 1944, does not, therefore, apply, and the Land Court had no power to re-open the case.
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MAIN JUDGMENT
The following Judgement was delivered:
FOSTER-SUTTON, P.
It was conceded by both Mr. Hayfron-Benjamin, for the appellant, and Mr. de Graft Johnson, for the respondent, that the only question for determination on this appeal is whether Lingley, J., was right in holding that there was nothing “pending” in the Native Appeal Court of Ayan-na-Breman Confederacy, Cape Coast District, which could be transferred for determination by the Land Court.
The appeal first came before the Native Appeal Court for hearing on the 14th of April, 1948. The appellant was present, but the respondent appeared by an agent who produced a letter asking for an adjournment. Pursuant lo that request the hearing of the appeal was adjourned until the 27th April, 1948. On that day, the respondent again failed to appear, and the bailiff of the Court intimated that he had been unable to find the respondent to serve formal notice of the date of hearing on him. The Native Appeal Court then decided to proceed with the appeal and after a long and careful hearing, which terminated on 3rd May, 1948, they allowed the appeal and set aside the judgment of the Native Court “B”.
On the 28th June, 1948, the unsuccessful respondent made an application to the Native Appeal Court, by motion, asking it to set aside its decision and re-hear the appeal on the ground that the hearing took place ex parte. After hearing argument the Court granted the applicant respondent’s request and fixed the appeal for re-hearing on the 27th July, 1948, by a fresh panel. After that the appeal came before the Native Appeal Court on two occasions on neither of which did the respondent put in an appearance. In those circumstances, the Court withdrew its consent to the re-hearing of the appeal, at the same time intimating that their judgment delivered on the 3rd May, 1948, remained effective.
Finally an order was made on the 2nd May, 1949, transferring the case to the Lands Division of the Supreme Court.
It follows from the foregoing that the real question for determination is whether it was competent for the Native Court of Appeal to re-open the case after their judgment of 3rd May, 1948. The respondent was fully aware of the proceedings before the Court. He filed a detailed “Reply to Appellant’s Grounds of Appeal”, pages 54 and 55 of the record, and he must, in my view, be deemed to have had notice that his application for an adjournment had been granted and that the hearing of the appeal had been fixed for the 27th April, 1948, because it is clear from the record that the agent he sent to ask for the adjournment was fully informed of the Court’s decision by the President of the Native Appeal Court. While it is true that the appeal was heard in his absence it cannot, I think, be said that he was unaware of the position.
Apart, however, from the question as to whether the appeal was heard ex parte in the sense the term has been interpreted in this case, the Native Courts of Appeal are expressly authorised, by regulation 127 of the Native Courts (Colony) Procedure Regulations, 1945, inter alia, to proceed to hear an appeal ex parte in the absence of the appellant or respondent.
In my opinion, once the Native Appeal Court had dismissed the appeal it was functus officio, section 51, of the Native Courts (Colony) Ordinance, 1944, does not apply and the Court, therefore, had no power to re-open the matter.
For the reasons I have given, I am of the opinion that there was nothing “pending” which was capable of being transferred to the Land Court for adjudication. That being so, in my view, this appeal should be dismissed with costs.
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COUSSEY, J.
I concur.
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KORSAH, J.
I concur.
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Appeal dismissed.
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