–
NANA KOJO APPIAH II
V.
GYASEHENE KWAME BADU AND OTHERS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
25TH DAY OF MARCH, 1955
2PLR/1955/20 (WACA)
OTHER CITATION(S)
2PLR/1955/20 (WACA)
(1955) XIV WACA PP. 710 – 711
LEX (1955) – XIV WACA 710 – 711
–
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
HEARNE, J.A.
–
BETWEEN:
NANA KOJO APPIAH II FOR HIMSELF AS THE OCCUPANT} AND ON BEHALF OF THE STOOL OF AYANFURI, KOBINA OKYIR – Appellants
AND
1. GYASEHENE KWAME BADU
2. ABUSUAPANIN KWESI MENSAH
3. OHEMAA AMA BIRASOR FOR THEMSELVES, ETC.
4. NANA KWAME BUGYEI – Respondents
–
ORIGINATING COURT(S)
Appeal by plaintiffs from the Land Court’s decision on appeal from the Native Court: No. 30 of 1954.
–
REPRESENTATION
F. Awoonor-Williams — for the Appellants
C. F. Hayfron-Benjamin — for the Respondents
–
ISSUE(S) FROM THE CASUE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Native Courts (Colony) Ordinance, 1944 (Cap. 98), section 39 — Requirement that notice of joinder be served on a person joined as a party — How properly treated
–
PRACTICE AND PROCEDURE ISSUE(S)
ACTION:- Native Courts (Colony) Ordinance, 1944 (Cap. 98), section 39, on notice of joinder — Persons joined on their own applications not served with notice
–
CASE SUMMARY
Native Courts (Colony) Ordinance, 1944 (Cap. 98), section 39 requires notice of joinder to be served on a person joined as a party.
Two persons were joined, as co-plaintiff and co-defendant respectively, in the Native Court on their own applications. In the Land Court on appeal the point was taken that they had not been served with notice, and the Judge held that the trial was null and void. In fact they had appeared and taken part at the trial.
–
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal and remitting the case for hearing of the appeal) that:
The object of the section is to give notice to the person concerned so that he may appear if he wishes. In this case those concerned knew of the joinder and must be regarded as having waived service of notice.
–
–
MAIN JUDGMENT
The following judgment was delivered:
FOSTER-SUTTON, P.
This is an appeal from a ruling of Acolatse, J., sitting in the Land Court, Cape Coast, Judicial Division, by which he held that notification of the joinder of the co-plaintiff and co-defendant not having been “served” on them the proceedings before the trial Native Court were “null and void”.
It is the case that section 39 of the Native Courts (Colony) Ordinance, 1944, now section 39 of Cap. 98, does require notification of the joinder of a party in a suit to be served upon the person joined. The object being to give the person concerned notice of the joinder and, thereby, an opportunity of appearing if he so desires.
In the present case the co-defendant was joined as a party upon his own application before the case came for trial, and from then onwards he appeared sometimes in person and at others by Kweku Peprah, linguist of the Stool of Buabin. The co-plaintiff was also joined as a party upon his own application, and thereafter he appeared and prosecuted the case on behalf of himself and the plaintiff, and he also gave evidence on oath.
It is clear, therefore, that both the co-plaintiff and the co-defendant knew of their joinder, and in the circumstances here the service of the notification of joinder must be regarded as having been waived. A party can always waive service of notice, and he does so either expressly or, as in the present case, by necessary implication.
Moreover, the point was not taken in the Court of trial and where there has clearly been a waiver, as was the case here, I am of .the opinion that the Land Court Judge ought to have refused to allow it to be taken when the case came before him on appeal. AB has frequently been said before:
“In the case of an alleged irregularity, it is a safe maxim for a Court of Appeal to be governed by, that an objection, which, if taken might have been cured and which was not taken at the trail shall not be taken in the Court of Appeal.”
It follows that I would allow this appeal, set aside the judgment of the Court below, and remit the case to the Land Court for the appeal to be heard on its merits by another Judge. The respondents to pay the costs of the abortive proceedings before the Land Court and the costs of this appeal.
–
COUSSEY, J. A.
I concur.
–
HEARNE, J. A.
I concur.
–
Appeal allowed; case remitted for hearing of the appeal.
–