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ADONKOSI & ANOTHER v. HOWUSU & ANOTHER


  • Land
  • 1959-12-05
  • HIGH COURT
  • GLR 222-224
  • Print

OLLENNU J.


Summary

The present was a second appeal (Accra L.A. 87/1957). For the first appeal, heard by the Kpandu District Native Appeal Court, the appellant had filed grounds of appeal which incorporated very fully the arguments in support of the grounds. He was not heard orally. The Court of first appeal did not record any statement by him that he relied upon the written argument, and did not wish to address the Court.Regulation 129 of the Native Courts (Southern Section of Togoland) Procedure Regulations provides as follows:?-"If when an appeal is called on by a Native Appeal Court, both parties appear, each such party shall be heard."Counsel at the second appeal argued that the omission of an oral hearing, and of any note that appellant waived his right thereto, vitiated the first appeal.

Headnotes

Appellate procedure?-Duty of Court to hear both sides?-Argument need not be oral?-Proper entry on record when a party relies on written argument only.

Judgement

On the merits there is no substance in this appeal.

The only ground of appeal which was seriously argued in this second appeal was the additional ground filed on the 9th May, 1959, which reads:

"The judgment of the Native Court is a nullity as the appeal was not heard in accordance with law."

In support of that ground, Counsel relied upon a judgment delivered by me on the 28th April, 1959, in Land Appeal No. 86/57, entitled Krakani v. Agbenoto & anor., in which I interpreted Regulation 129 of the Native Courts (Southern Section of Togoland) Procedure Regulations to mean "that each party must be given an opportunity if necessary to say anything he might wish to urge in support of or against the appeal," and, further, that where on the face of the record of proceedings it appeared that judgment was given against a party to an appeal, whether appellant or respondent, non-compliance with the provisions of the said regulation would make the proceedings before the Native Appeal Court a nullity. Counsel in the present appeal accordingly asked the Court to declare the findings before the Kpandu District Native Appeal Court null and void, as it does not appear that the appellant was given a hearing before his appeal was dismissed.

There is, however, also the judgment delivered by me on the 30th April, 1959 in Land Appeal No. 168/58, entitled Anago & ors. v. Avudega III. In that case I stated:

"In my opinion the word 'heard' in the regulation should be interpreted to include 'reading written arguments' as well as hearing oral arguments."

The appellant therein having in fact filed exhaustive written arguments of his appeal, and the Native Appeal Court having given due [p.224] consideration to those written arguments before dismissing his appeal, I held that there had been sufficient compliance with the provisions of the said regulation.

In my opinion the present appeal cannot be distinguished from that case. The lengthy document filed by the appellant went far beyond mere "detailed grounds of appeal;" it stated the detailed grounds of appeal, and then argued each such detailed ground of appeal in full. Thus the appellant may properly be said to have argued very fully and exhaustively in support of his appeal; and the respondent, on his side, replied to those arguments in writing.

At the same time, where a party states that he relies upon grounds of appeal which he has filed and/or upon written argument, and does not wish to make oral submissions, that fact should be recorded. But the omission to make such a record will not be fatal to the judgment; it will only be a technicality if on the face of the record it is clear that the party has fully submitted his arguments or submissions in writing, and the Native Court appears to have considered them. In the circumstances of the present case, although the record of proceedings does not contain a specific entry that the appellant stated that he did not wish to make any oral submissions, I am satisfied that he was in fact heard in the sense in which I have interpreted Regulation 129, and therefore there has not been a denial or miscarriage of justice.

Decision

<P>The appeal is dismissed, with costs fixed at £17 1s.6d., including 10 guineas Counsel's cos

Plaintiff / Appellant

Apaloo

Defendant / Respondent

Boateng

Referals

(1) Krakani v. Agbenoto & anor. (Land Appeal No.86/57; judgment delivered on 28th April, 1959);

 

(2) Anago & ors. v. Avudega III (Land Appeal No.168/58; judgment delivered on 30th April, 1959).

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