ASIMENU AND OTHERS v. DOE AND OTHERS
[HIGH COURT, HO]
DATE: 16TH MARCH, 1962
COUNSEL
F. T. C. Amorin for the appellants.
E. D. Kom for the respondents.
JUDGMENT OF PREMPEH, J.
This action was brought by the plaintiffs-appellants against the defendants-respondents in the Native
Tribunal of Kpoeta in the early part of the year 1944. The appellants’ claim against the respondents
was for a declaration to a portion of land commonly called Hatoenu the boundaries of which are
described in the particulars of the claim. The respondents counterclaimed and also claimed against the
appellants for a declaration of title to the said land which they called Kelevigbe or Bevime, and which
they claimed to have passed to the possession of the appellants through one Motte.
Judgment in this case was given by the tribunal on the 4th May, 1949 in favour of the respondents
granting them a declaration of title to the land on their counterclaim, and making other consequential
orders. Several grounds of appeal were filed, one of which was the ground that the serious
irregularities apparent on the record were such that they rendered the trial wholly unsatisfactory and
the proceedings vitiated.
From a review of the whole of the evidence, it is my view that there is force in this ground of appeal,
and I think it is convenient here to point out those irregularities complained of.
The case was first called on the 13th April, 1944 and on the 18th April, 1944, when hearing actually
commenced, the native tribunal was constituted by a panel of six members. After the first
plaintiff-appellant (giving evidence for himself and on behalf of the other appellants) had been partly
heard the case was adjourned, and on resumption of hearing, for reasons there recorded, one of the
panel members was dropped, and the hearing proceeded on the 2nd May, 1944 with the remaining
five members.
No authority was cited to me that in these circumstances the native tribunal could not have properly
continued the hearing with the remaining five members, but at the same time I cannot overlook the
unsatisfactory situation having regard in particular to the reasons for which that panel member was
dropped and the possibility that he could within this short interval have already been of some
influence on the other five members who were left to carry on with the case.
The case was, on the 2nd May, 1944, adjourned sine die, and it is surprising to observe that hearing
was not resumed until three years later that is to say on the 23rd June, 1947. Although at that stage,
the first plaintiff, who already had given a long piece of evidence, had not completed it, yet in my
view it cannot be said with certainty that even though the same panel members reassembled, they can
all still have had a well balanced opinion as to the previous demeanour of the plaintiff in the
witness-box which should affect their judgment as to credibility more particularly as the record does
not show that the previous evidence taken on the 23rd June, 1947 was read to the panel members.
There is then the significant fact that on the 23rd June, 1947 after a lapse of over three years from the
last adjournment, the record failed to show who were the panel members present to carry on with the
further hearing of the case. All that the native tribunal noted was “Same
[p.178] of [1962] 1 GLR 176
members present”, and it is to be observed that from that date until the date of judgment there were
not less than twelve adjournments, and on the resumption of each sitting with two exceptions only
including the date of judgment, that was precisely how the court purported to show who sat on and
continued with the case.
In my view, that is an unsatisfactory situation, and a practice which very seriously should be
discouraged. On the 23rd June, 1947, after taking some evidence, the case was adjourned according to
the record to the 24th June, 1949. That is a mistake which can be accounted for as an oversight by the
recorder, evidently it meant the 24th June, 1947, but on that date, that is the 24th June, 1947, although
the case was again adjourned to the 7th July, 1947, hearing was not in fact resumed until the 15th
February, 1949.
I have already made an observation as to the effect of such an abnormally long lapse of time between
hearings, especially as in this case where no reasons were given as to what occasioned this long
adjournment. It can now be seen that it took the tribunal five years and about one month to hear and
determine this land matter.
I have taken judicial notice of the fact that the Kpoeta Native Tribunal has ceased to function, but no
satisfactory reasons were advanced to show why, although judgment was entered on the 4th May,
1949, the appeal record was never forwarded to the appropriate native appeal court for the hearing of
the appeal, and also as to why that appeal record reached this court only sometime in November,
1961. For the above reasons it is my view that the trial was unsatisfactory, and that the ends of justice
would be met if a fresh trial was ordered.
Accordingly I do allow the appeal and set aside the judgment of the native tribunal, but I remit the
case to the local court in the district now having jurisdiction to entertain this land matter, to be by it
heard de novo.
In all the circumstances, I shall make no order as to costs in this court. Costs of the abortive hearing to
abide the result of the rehearing.
DECISION
Appeal allowed.
Case remitted to be heard de novo.
