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AGBALE AND OTHERS v. AKOGO AND OTHER


  • New
  • 1862-04-26
  • HIGH COURT
  • 1 GLR 293-296
  • Print

PREMPEH J.


Summary

Practice?-Inspection of the locus in quo?-Whether proper for panel member to give evidence of inspection.Practice?-President of court signing record of proceedings when he was not presiding.

Headnotes

During the trial of a land suit in a native court the court found it necessary to visit the locus in quo. Subsequently, the president of the panel went into the witness-box to give evidence of what the panel members had seen at the inspection. His evidence, including the cross-examination by the parties, took four sittings of the court covering the period 25th July, 1958 to 21st August, 1958.At the close of day on each of the four sittings although he was in the box giving evidence, he signed the court's proceedings as president. The sittings concluded on the 25th August, 1958, but judgment was not given till the 10th October, 1958. The defendants lost. They appealed.

Judgement

APPEAL from a judgment of the Wheta/Afife/Klikor Native Court ?"B?" given in favour of the defendants in a land case.

This is an appeal from the judgment of the Wheta/Afife/Klikor Native Court ?"B" delivered on the 10th October, 1958 in favour of the defendants-respondents herein.

By their amended claim, the plaintiffs-appellants claimed against the respondents a declaration of title to the land commonly called Agbadomi land the boundaries of which are therein set out. They also claimed damages for trespass and an order to eject the respondents from the land and for a perpetual injunction.

The respondents also counterclaimed against the appellants for declaration of title to and recovery of possession of the said land which according to them is known as Djove land, the southern boundary of which varied from that described by the appellants. The issue raised before the trial court was whether the land, the subject-matter of the dispute belonged to the appellants or to the respondents.

A mass of traditional evidence was led by both parties and after having heard the evidence and inspecting the locus in quo, the trial court made eleven findings, and thereafter entered judgment for the respondents. As can be seen, these findings dwelt mainly upon the traditional evidence adduced, seriously omitting to consider the important evidence of the appellants as to rights of ownership exercised by them on the said land, and also what binding effect those exhibits or some of them tendered by the appellants had upon the respondents' case.

Of the several grounds of appeal filed and argued the only one which it is necessary to consider, as in my opinion it must prevail, is: "That the judgment of the trial court is a nullity in that that court was irregularly constituted".

In arguing this ground of appeal, counsel for the appellants submitted that the question as to what the trial court found at the locus in quo particularly in relation to the features and other acts of ownership on the land by the appellants was highly relevant to its findings, and that the proceedings in regard to the presentation of the viewers' report and its reception was therefore a very important factor in the proceedings. With this submission I am entirely in agreement.

Counsel then referred to that part of the proceedings recorded on the 25th July, 1958 when the court re-assembled after the visit to the locus in quo when the president of the court left his seat and entered the witness box, where after being sworn, he gave very lengthy evidence as to what was seen on the land, but he did not complete that evidence when the case was adjourned to the 31st July, 1958. It is to be observed [p.295] that although he was in the witness box throughout that day, yet he signed the record as president, as if he had conducted the proceedings that day.

At the next hearing which was on the 3 1st July, 1958, the president was again in the witness box, and as his evidence was not completed that day, the matter was again adjourned to the 14th August, 1958. Again although he had been in the witness box, the record was signed by him as the presiding member.

At the next hearing which was on the 14th August, 1958, the president was again in the witness box when he continued his evidence and was subjected to lengthy cross-examination by the parties, but the matter was again adjourned to the 21st August, 1958, whilst he was still under cross-examination. And again it will be noted that the record of the proceedings that day was signed by him as the presiding member.

At the next hearing which was on the 21st August, 1958, the president of the court was still in the witness box and after being subjected to further cross-examination, he then left the witness box. Another panel member then left his seat and entered the witness box, and after he had given short evidence agreeing with that of the president, he resumed his seat and the case was then adjourned for delivery of judgment, which was reserved. On this date also, the record of the proceedings was signed by that president.

It has been submitted on behalf of the appellants that since this procedure resulted in a reduction in the number of the panel members as is required by statute, the proceedings were rendered so irregular as to call for a declaration that they are a nullity, In my view there is much force in this argument.

I have considered the provisions contained in section 42 of the Native Courts (Southern section of Togoland) Ordinance1 on the subject of inspection, and I have considered also the case of Chief Deabendey III v. Hayford and Anor.,2 by which I am certainly bound, but in the circumstances of this case, it is my view that the evidence presented by the president went to such an extent that it turned him into a witness in the case, and that as such witness he wrongly signed the record on those various dates as if he was the presiding member of the court, and that these irregularities are such that they render the proceedings a nullity.

In that same case above referred to, the Appeal Court referred to the case of Gblevi Family, etc. v. John Amanie and Others3 which laid down the following procedure to be followed in such cases:

"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 heard, those other persons should be asked to appear before the court when it re-assembles.

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." [p.296]

On this procedure I cannot accept the contention that any of the court panel members can enjoy the laxity of converting himself into a witness for the purpose of giving evidence. It is also my view that the facts that the president's report of the locus in quo lasted from the 14th July, 1958, till the 25th August, 1958, and that the judgment of the court was not delivered until the 10th October, 1958, create a situation which is far from satisfactory.

For the above reasons, I shall allow this appeal and set aside the judgment of the trial court, and remit the case to the trial court or the appropriate local court now having jurisdiction in the area to be heard de novo, with directions that should a visit to the locus in quo be considered necessary, the procedure laid down as indicated above should be followed. I award the appellants 50 guineas costs in this court. Costs of the abortive hearing to abide the result of the rehearing.

Decision

Appeal allowed; case remitted for rehearing.

Plaintiff / Appellant

F.T.C. Amorin

Defendant / Respondent

I.N.K. Wuaku

Referals

(1) Chief Deabendey III v. Hayford and Anor., Court of Appeal, November 2, 1959, unreported

(2) Gblevi Family, etc. v. Amanie and Ors., Court of Appeal, June 10, 1959, reported at [1961] GLR. 1

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