Division: IN THE COURT OF APPEAL
Date: 3RD FEBRUARY, 1959.
Before: VAN LARE AG. C.J., GRANVILLE SHARP J.A. AND OLLENNU J.
ARGUMENT OF COUNSEL
Prempeh, for respondent, called on to justify the judgment reversing concurrent findings of fact. The first native court wrongly rejected admissible evidence. Admittedly the evidence given by a certain witness in a criminal prosecution was not admissible in evidence under the strict rules of evidence, but even such evidence is generally received by native courts. In any case the relief we seek is a rehearing de novo by the Land Court. The trial-Court was wrong in decreeing ownership of the property to the
defendants. Further, only the 3rd and 6th defendants were in Court, and judgment must be limited to such of the defendants as were affected by it.
Adade not called upon to reply.
JUDGMENT OF VAN LARE AG. C.J.
Van Lare Ag. C.J. delivered the judgment of the Court:
This is an appeal from a decision of the Land Court, Kumasi, reversing concurrent findings of fact as to whether the house in dispute between the parties was validly sold by the predecessor of the plaintiff-respondent to the defendant-appellants. The trial native court resolved this question in favour of the defendants, having been satisfied on the facts that the plaintiff s predecessor,
[p.57] of [1959] GLR 54
Kobina Agyarko, the original owner of the house in dispute, had sold it during his life-time. The trial-Court was therefore justified in entering judgment for the defendants. The onus was on the plaintiff, who failed to discharge it.
It must be pointed out that although there were six defendants to the suit, the judgment could be
rd
entered in favour of two only, that is to say, the 3 (Kwame Adiyea), and 6th (Chief Kofi Nuamah). The other defendants, according to the evidence, were either dead or not served. These two were the only defendants present, and it was against them only that the plaintiff-respondent proceeded.
Unfortunately the trial-Court did not enter judgment for the defendants simply, but decreed that the property in dispute belonged to the defendants. Since they had not counter-claimed, this part of the judgment is improper and must be expunged.
The Asantehene’s “A2” Court confirmed the judgment of the trial-Court. On appeal, however, to the Land Court, Kumasi, the learned Judge reversed the decision, not on the ground that it was wrong, but because there were circumstances in the trial which made him feel that there was a lack of fairness, the president of the trial-Court not having displayed a favourable attitude towards the plaintiff-respondent. With due respect to the learned Judge, we disagree. There is nothing on the record to substantiate suspicion of unfairness against the president as alleged, and the trial-Court was therefore justified in ignoring the plaintiff-respondent’s allegation.
The Judge also referred to the rejection of a piece of evidence which forms part of the record. This is a copy of the evidence of a certain witness who deposed in a criminal prosecution of the plaintiff-respondent, and in our view cannot be evidence in the present proceedings. The trial-Court was therefore justified in rejecting it as inadmissible. On this point the learned Counsel for the plaintiff-respondent has conceded that the evidence sought to be tendered is inadmissible in law, but submits that it was such evidence as native courts generally accept. We do not think that a piece of evidence which is inadmissible in a Court of Law (apart from evidence as to tradition, which may be hearsay) can be admissible in a native court.
It would appear to us, therefore, that the learned Judge erred in deciding that, although he was reluctant to interfere with a decision given by two courts which agreed on the matter, he would nevertheless allow the appeal, and would remit the case to the native trial-Court for a rehearing. There is, therefore, no alternative but to allow the appeal. The order of the learned Judge remitting the case to the Kumasi Municipal Court B1 for rehearing de novo is set aside, including the order as to costs.
[p.58] of [1959] GLR 54
The judgment of the Municipal Court “B” is restored, except as to the variation indicated in this judgment. The judgment of the Asantehene’s “A2” Court, confirming the decision of the Kumasi Municipal Court B, is to stand.
The defendants-appellants will have the costs of this appeal in this Court fixed at £45 Os. 2d.; and their costs in the Land Court, fixed at £20 Os. Od.
DECISION
Court below to carry out.
