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EMMANUEL OSEI
V.
E. S. ASIEDU-OFEI
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
11TH DAY OF FEBRUARY, 1944
2PLR/1944/11 (WACA)
OTHER CITATION(S)
2PLR/1944/11 (WACA)
(1944) X WACA PP. 87 – 88
LEX (1944) – WACA PP. 87 – 88
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
DOORLY, AG. C.J., GOLD COAST
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BETWEEN:
EMMANUEL OSEI — Appellant (Defendant)
AND
E. S. ASIEDU-OFEI — Respondent (Plaintiff)
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ORIGINATING COURT(S)
APPEAL BY PLAINTIFF FROM ORDER OF PROVINCIAL COMMISSIONER’S COURT MADE AN APPEAL FROM THE NATIVE TRIBUNAL
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REPRESENTATION
K. A. Bossman — for Appellant
A. O. Larbi — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
NA
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PRACTICE AND PROCEDURE ISSUE(S)
ACTION — POWER OF ATTORNEY:- Civil Procedure — Representation of Plaintiff by relative — Judgment for Defendant — Appeal by Plaintiff not heard because of relative giving evidence — Native Administration (Colony) Ordinance, Cap. 76, s. 64, second proviso.
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CASE SUMMARY
The action was begun in the Native Tribunal and Plaintiff was there represented by his nephew, who produced a power of attorney in that behalf, and gave evidence. The Tribunal gave judgment for Defendant, and Plaintiff appealed to the Provincial Commissioner’s Court, but this Court ordered a retrial on the ground that it was irregular for a third party to give evidence on his behalf. From this order Plaintiff appealed.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal),
1. that the representation was in order under the second proviso to s. 6, of Cap. 76, although it was not in order for the representative to testify as if he were Plaintiff, but this could not operate to deprive Defendant of his judgment.
2. Appeal allowed and case remitted to the Provincial Commissioner’s Court to hear the appeal to it on the grounds before it.
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MAIN JUDGMENT
The judgment of the Court was delivered by the President:-
In this case on the appeal coming before the Provincial Commissioner’s Court from the Tribunal of the Paramount Chief of Akyem Abuakwa the Acting Deputy Provincial Commissioner did not hear it on its merits but gave the following judgment:-
“The question of representation is involved in the case. Dr. Asiedu-Ofei, the Plaintiff-Appellant, did not appear in the Tribunal to give his statement. A third party gave evidence on his behalf. This is irregular and the case is referred back to the Tribunal of the Omanhene of Akim Abuakwa for retrial.
Costs to abide the ultimate result of the case.”
We do not agree that there was any irregularity in the Tribunal on account of the Plaintiff appearing by a representative instead of in person. The Tribunal’s record of the representation is as follows:-
“Plaintiff not in Tribunal in person represented by his nephew Joshua Darko Asiedu who produces Power of Attorney dated 15-2-40 in that behalf.
Defendant has no objection to the representation of the Plaintiff by Joshua Darko Asiedu but only asks that the case be heard it having been on the list a long time.”
This appears to us to be quite in order under the second proviso to section 64: of the Native Administration (Colony) Ordinance (Cap. 76); although it was not in order when the representative proceeded to give evidence as though he were the Plaintiff. This, however, merely affects the evidence on behalf of the Plaintiff and cannot operate to deprive the Defendant of his judgment in the Tribunal. The Provincial Commissioner’s Court has therefore ordered a retrial on inadequate grounds and has not yet considered on their merits the other grounds of appeal to it. The appeal is allowed the judgment of .the Provincial Commissioner’s Court is set aside and the case is remitted to the Provincial Commissioner’s Court for that Court to hear the appeal to it upon the grounds before it. The Appellant is awarded costs in this Court assessed at £34: Ss. The costs in the lower Courts are to abide the ultimate issue.
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