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AKOSUA OTWIWA AND ALBERT KWATIA
V.
ADJOA KWASEKO
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
17TH DAY OF DECEMBER, 1937
2PLR/1937/15 (WACA)
OTHER CITATION(S)
2PLR/1937/15 (WACA)
(1937) III WACA PP. 230 – 231
LEX (1937) – III WACA PP. 230 – 231
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
YATES, J.
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BETWEEN:
AKOSUA OTWIWA AND ALBERT KWATIA – Plaintiffs-Appellants
AND
ADJOA KWASEKO – Defendant-Respondent
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ORIGINATING COURT(S)
APPEAL FROM PROVINCIAL COMMISSIONER’S COURT EXERCISING APPELLATE JURISDICTION
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REPRESENTATION
J. H. Coussey for Appellants
Ofei Awere for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
TORT AND PERSONAL INJURY:- Claim for damages for trespass – Defect in composition of court hearing same – Legal effect
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PRACTICE AND PROCEDURE ISSUE(S)
COURT – JURISDICTION:- Competency of court – Variation of members of a Court hearing a matter – Legal effect for decision arising from the proceedings
JUDGMENT AND ORDER – COSTS:- Fresh issue taken on appeal – Where dispositive of the appeal – Whether appellant entitled to cost
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CASE SUMMARY
The plaintiffs sued before the Tribunal of Krontihene, and judgment went to the defendant. They appealed to the Tribunal of the Paramount Chief and the Court was differently constituted on the various occasions it met. It dismissed exercising the appeal and the plaintiffs appealed to the Provincial Commissioner’s Court, Eastern Province, which also dismissed the appeal. The plaintiffs appealed therefrom to the Court.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
The constitution of the Court of the Paramount Chief having varied, as aforesaid, the proceedings before it were a nullity, and it is now ordered to rehear the Appeal from the lower Court.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND YATES, J.
In this case the first plaintiff sued the defendant in the Tribunal of Krontihene at Akwapim claiming £25 damages for trespass on his land. The second plaintiff was subsequently joined as co-plaintiff. The Tribunal gave judgment against the plaintiffs, who then appealed to the Tribunal of the Paramount Chief of Akwapim which dismissed their appeal with costs. They then appealed to the Provincial Commissioner’s Court, Eastern Province, which also dismissed their appeal with costs. They now appeal to this Court, and the first point they take is that the proceedings before the Paramount Chief’s Tribunal were irregular and amount to a nullity because on the various occasions on which the case came before that Tribunal, the Tribunal was differently constituted, and final judgment was given by a Tribunal composed of members some of whom had not been present throughout.
In view of recent decisions of this Court, the respondent is unable to resist this contention, and we uphold it. This is a very flagrant instance of this particular form of irregularity as at some sittings some only of the members are named, the list ending with the words “and others,” whilst at the final hearing the Krontihene himself, from whose Court the appeal was brought, was one of the members. This of course violates the fundamental principle that a man should not sit on appeal from his own judgment.
The appeal is accordingly allowed, and it is declared that the proceedings before the Paramount Chief’s Tribunal are a nullity. The judgment of that Tribunal including the order as to costs is set aside; so also is the judgment of the Provincial Commissioner’s Court, including the order as to costs. This leaves the position that – the appeal from the Tribunal of Krontihene to the Paramount Chief’s Tribunal is still pending, not having yet been heard by a regularly constituted Tribunal. It is accordingly ordered that the Paramount Chief’s Tribunal do re-hear the appeal to it, being careful to see that there are no irregularities in its constitution.
As to costs, since this is the first time the point has been taken by the appellants, it is just that they should be deprived of their costs in this Court. There will accordingly be no order as to costs in this Court. We see no reason to deprive the respondent of his costs in the Provincial Commissioner’s Court in which he was successful on the points there argued. He is accordingly awarded costs in that Court to be taxed.
The costs in the Paramount Chief’s Tribunal, both those already incurred and those to be incurred at the new hearing, will be in the discretion of that Court in giving its judgment at the new hearing.
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