NANEVIE AND ANOTHER v. AGBOYIBOR AND OTHERS [1963] 1 GLR 440

DIVISION: IN THE SUPREME COURT

DATE: 13TH MAY, 1963

BEFORE: CRABBE, OLLENNU AND BLAY JJ.S.C.

CASES REFERRED TO

(1) Gblevi Family v. Amanie [1961] G.L.R. 1, C.A.

(2) Obeng v. Ampofo, C.A., Cyclostyled Judgments, January-June, 1957, 143, unreported.

NATURE OF PROCEEDINGS

APPEAL from a judgment of the Land Court, Ho, which had dismissed an appeal by the appellant herein from a judgment of the Anlo Native Court “A” setting aside a decision of the Wego-Torgo Native Court “B” and entering judgment for the respondents. The respondents had claimed as plaintiffs, suing on behalf of themselves and as representatives of the Ahiaha family, declaration of title, right to possession and occupation of certain land in Anlo, damages for trespass and an injunction. The Supreme Court did not enter into the merits of the case because of objections in limine to the judgment of the native court.

COUNSEL

Ofori-Atta for the appellants.

No appearance for the respondents.

[p.442] of [1963] 1 GLR 440

JUDGMENT OF OLLENNU J.S.C.

Ollennu J.S.C. delivered the judgment of the court. [His lordship narrated the facts and outlined the earlier proceedings. He then continued:] There are in this appeal two matters which are objections in limine against the judgment of the trial native court; they are both connected with the inspection or the locus in quo. It is disclosed both in the report of the inspection that at two stages of the inspection, while the appellants were pointing out their land to the members of the trial native court, persons who were not parties or witnesses in the case intervened and gave the native court some information material to the issues before the native court; and also that at some stages of the inspection the parties themselves gave some further information on their case to the native court. When the native court re-assembled to continue its sitting before giving judgment it did not recall the parties and their witnesses to record on oath the matters they had alleged at the inspection, and did not get those non-witnesses who had interrupted at the inspection to state on oath the allegations and objections they had made to the inspection. Rather two of the three members of the native court went into the witness-box, one after the other, and made a report of the inspection on oath.

Although the information given to the native court at the inspection was not repeated on oath and recorded as part of the evidence in the case, it is quite clear from their judgment that the native court made use of those materials as part of the evidence for arriving at their decision. This practice has been condemned now and again. In Gblevi Family v. Amanie1 the facts in which were to some extent similar to those in the present appeal, the Court of Appeal in their judgment held that a judgment delivered in such circumstances is irregular and should be set aside and a re-trial ordered. They said, “It was imperative for the trial native court to take steps in order to have on record the facts collected at the inspection before grounding their judgment on them.” Talking about what the Land Court as a court of appeal from a decision of the native court should do in such a case, the Court of Appeal said: “We are of the opinion that the proper course for him to adopt in the interest of justice was to remit the case to the trial native court for a rehearing with a direction that evidence of what took place at the inspection should be recorded.”

In that case the Court of Appeal laid down the practice and procedure to be followed by a local court for the inspection of land or the subject-matter of a suit being tried by them. We here repeat what they said22:

“The court should be accompanied by the parties and any relevant witnesses to the inspection. The parties or the witnesses there point out such places and things which are material to the case, etc. If certain other persons, who may assist the court in arriving at a decision in the matter are found on the land but who have not given evidence in court, are heard, those other persons should be asked to appear before the court when it re-assembles.

[p.443] of [1963] 1 GLR 440

Then when the court re-assembles all the persons who were used at the view must be put into the witness box, and on oath state what part they took in the recent visit to the locus and what each did. The parties, that is the plaintiff and the defendant are to be given an opportunity of cross-examining those witnesses who after the inspection are called by the court itself, and at that stage must be deemed to be witnesses called at the instance of the court.”

We strongly emphasise that practice and procedure and direct that it should be followed by the local court. To some extent, it can be said, the native court complied with that procedure because when they re-assembled after the inspection, two persons present at the inspection gave evidence on oath of all that transpired at the inspection, and were cross-examined on it by the parties; that evidence was recorded as the viewers’ report. The evidence so given is admissible and the native court is entitled to use it as part of the basis of their judgment if it has been given before the native court properly constituted. Unfortunately the body before which that evidence was given was not a duly constituted native court as provided under the statute. The relevant statute in this case was the Native Courts (Southern Section of Togoland) Ordinance,3 now repealed. Section 7 (1) thereof provided as follows:

“7 (1) The members of the Native Court appointed under section 4 shall be deemed to be a panel and the Native Court shall be duly formed only if it consists of three or five members including the presiding member. . .”

(The italics are ours). It follows that if one, two, four, six or more people sit purporting to hear a case as a native court, that would not be properly constituted native court to exercise jurisdiction under the Ordinance; therefore whatever business it transacts would be null and void as being without jurisdiction. Upon that principle, the Court of Appeal in its judgment delivered on June 9, 1958, in Kwabena Obeng v. Kwabena Ampofo,4 where a native court constituted under the Native Courts (Southern Section of Togoland) Ordinance started to hear a case with three members, and at a later stage one of the three dropped out and was replaced by another and the new panel continued to hear the case to conclusion, held that when the original third member dropped out, the court which started hearing the case ceased to exist, and that neither the remaining two members by themselves, or together with the new man, could constitute the court for the continuance of the case; the two old members and the new third member could only constitute another court to try the case de novo. In the course of their judgment the Court of Appeal said: “Since by that section, [i.e. section 7 (1) aforesaid] the number of panel members required to be present at the hearing of a case is 3 or 5, the Court

[p.444] of [1963] 1 GLR 440 will not be properly constituted if on any of the days on which a particular case is heard any one of the three or five members of the panel before whom hearing started, is absent. It means de jure that on that day only two persons authorised to constitute the Court for the hearing of that case can be said to be present, even though they sat with another member who is also appointed under section 4 of the Ordinance. On that day therefore there was no Native Court duly constituted, and vested with jurisdiction to hear the suit, and there is total absence of jurisdiction, and the proceedings and judgment before that body are not only irregular as under the Native Administration Ordinance but absolutely null and void.”

Applying that principle it will be observed that at the time when the one or the other of the two members of the court was giving evidence reporting on the inspection, only two and not all the three members of the court sat, therefore de jure, the report though given with all the formalities in judicial proceedings, was not evidence given before the court, therefore the court as properly constituted to deliver the judgment cannot act upon that report. Since material parts of the proceedings before the trial native court are null and void we are bound to declare the judgment null and void, and set it aside. If the native court which heard the case has been in existence the proper order to make upon allowing this appeal would be one similar of that made by the Court of Appeal in Gblevi Family v. Amanie, supra, that is, simply set aside the judgments of the Land Court, the native appeal court and the trial native court, and remit the case to the trial native court for a re-hearing with the directions given above as to inspection of the land in dispute. But since the native court which heard the case has ceased to exist, the proper court to try the case de novo is the High Court. In the circumstances the appeal is allowed, the judgment of the Land Court is set aside together with the judgments of the native appeal court and the trial native court, including the orders as to costs made therein; any costs paid to be refunded. The case is remitted to the High Court, Ho, for trial de novo with directions that the trial should be with a plan. The appellants will have their costs fixed at £G84 4s. 6d. Each party to bear his own costs in the Land Court and in the native appeal court. The costs of the abortive trial before the trial native court to abide the result of the re-hearing.

DECISION

Appeal allowed.

Case remitted to High Court for re-hearing.

J. D.