Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 GYAMBIBY v. GYAMBIBY | GhanaLegal - Resources for the legal brains

GYAMBIBY v. GYAMBIBY


  • appeal
  • 1961-02-13
  • SUPREME COURT
  • GLR 88-90
  • Print

KORSAH, C.J., SARKODEE-ADOO AND AKIWUMI, JJ.S.C.


Summary

Native courts?-Practice and procedure?-Application to set aside judgment of native appeal court?-Whether judgment ex parte?-Native Courts (Colony) Ordinance, Cap. 98 (1951 Rev.) s.51.

Headnotes

The respondent, N.K.G., had deliberately absented himself from the hearing of an appeal in the Buem Krachi Native Appeal Court at Jasikan on the 22nd July, 1957, in which he was the respondent, because that court had not adjourned the hearing to the date of his own choosing, i.e. the 1st August, 1957. The appeal was determined in favour of the appellant, H.Y.G., the respondent?'s nephew. On the 3rd August, 1957, the respondent made an application to have the cause re-listed under the Native Courts (Colony) Ordinance, Cap. 98, (1951 Rev.) section 51, which provides:?"No appeal shall lie from the decision of any Native Court in any suit or matter where the defendant or respondent has not appeared, but in every such case the Native Court shall satisfy itself that a copy of the decision has been served on the defendant, or respondent, and any defendant or respondent aggrieved by any such decision may, not later than one month after the date of the service on him of the copy of the decision, apply to the Native Court which gave or made the decision to reverse, vary or discharge it, and where the Court refuses so to reverse, vary or discharge the decision upon such application, an appeal shall lie in like manner as an appeal from any other decision of a Native Court.?"On the 20th January 1959, the Buem Krachi Native Appeal Court again found in favour of the appellant, H.Y.G. and the respondent appealed to the Land Court, Accra, which, on the 13th May, 1959, reversed the decision of the native appeal court and confirmed the judgment of the native court.The appellant, H.Y.G. listed eight grounds of appeal but relied most heavily on ground five, which stated that section 51 of the Native Courts (Colony) Ordinance was not applicable to the facts and circumstances of this case.

Judgement

APPEAL from the judgment of Ollennu, J. in the Land Court, Accra, delivered on the 13th May, 1959, reversing the judgment of the Buem Krachi Native Appeal Court at Jasikan of the 20th January, 1959, and confirming the judgment of the Akan Native Court ?"B?" at Asato of the 12th June, 1957, in an action for declaration of title and possession of land.

JUDGMENT OF AKIWUMI, J.S.C.,

Akiwumi J.S.C. delivered the judgment of the court. This is an appeal from the judgment of the Land Court, Accra, presided over by Ollennu, J. Judgment was given on the 13th May, 1959, confirming the judgment of the trial native court. There were eight grounds of appeal. Learned counsel for appellant laid great emphasis on the fifth ground, which I think goes to the very root of the case.

In this case the plaintiff claims:

(1) declaration of title, and

(2) possession of the landed properties contained in the writ of summons from the defendant who in turn counterclaimed the identical properties from the plaintiff.

The facts briefly are the plaintiff?'s father died when the plaintiff and his brothers and sisters were minors and the defendant who was the brother of plaintiff?'s father was according to native custom appointed successor to his brother?'s estate as trustee for the deceased?'s children while they were minors. The defendant as such successor took possession of the estate and managed it for his brother?'s children. On the plaintiff attaining maturity, he on behalf of himself and his brothers and sisters, claimed the properties comprised in this case from the defendant alleging that they formed part of his father?'s estate.

The suit was instituted in the Akan Native Court ?"B?" at Asato. The native court after hearing the parties and their witnesses gave judgment for the defendant in these words:

?"There was no evidence to support the plaintiff?'s case which could warrant him to claim also the farms in dispute. The court therefore give judgment to the defendant to all of his counter-claim with costs to be taxed against the plaintiff.?"

After the judgment the court made certain consequential orders. From this judgment the plaintiff appealed to the Buem Krachi Native Appeal Court of Jasikan. Leave to appeal was granted and the hearing date was fixed for the 15th July, 1957. The defendant was duly served with the notice and grounds of appeal, and hearing date of the appeal was served on the defendant on the 13th July, 1957.

On the 15th July, 1957, the appellant attended court but the defendant was absent. The court started to hear the appeal. The record of proceedings from the lower court, the grounds of appeal of appellant were read and interpreted to the court. At this stage the defendant appeared before the court and asked for adjournment to enable him to reply to the grounds of appeal filed by the plaintiff. Upon this application, further hearing of the appeal was adjourned to the 22nd July, 1957, and according to the record:

?"At this stage, the defendant-respondent who asked for this case to be adjourned to the 1st August, 1957, has the court to understand in the open court that if the court adjourns the case to the 22nd of July, 1957, he will never appear before the court unless the court adjourns it to the 1st August, 1957.?"

On the 22nd July, 1957, the defendant in accordance with his defiance of the court?'s order did not appear. The court, however, proceeded to hear the appeal notwithstanding the defendant?'s absence. All the facts [p.90] and evidence on record were carefully considered and the appeal was allowed, the judgment of the trial court was set aside, and judgment entered for the plaintiff against the defendant with costs. A copy of the judgment was served on the defendant. The defendant did nothing until the 3rd August, 1957, when he moved the native court to re-list the appeal which had already been allowed on the 22nd July, 1957, in favour of the plaintiff, basing his application on section 51 of the Native Courts (Colony) Ordinance1. [His lordship read the section which is set out in the headnote.]

It is clear from what happened on the 15th July, 1957, and on the 22nd July, 1957, that it cannot be said that the judgment of the 22nd July, 1957, was an ex parte judgment. The defendant on the 15th July, 1957, did appear in court and was present when the case was adjourned at his request, to the 22nd July, 1957. His defiant attitude towards the court by refusing to attend court if the case was not adjourned to the 1st August, 1957, showed that he was aware that the appeal would be heard on the 22nd July, 1957, but he chose to be absent.

From the foregoing it is clear that section 51 of the Native Courts (Colony) Ordinance does not apply to this case. It follows, therefore, that all proceedings subsequent to the judgment of the 22nd July, 1957, are null and void. As a result the judgment of the Land Court is hereby set aside and the judgment of the Buem Native Appeal Court of the 22nd July, 1957, is hereby restored, with costs against the defendant-respondent.

In view of this judgment, consideration of the points raised in the other grounds of appeal is no longer necessary.

Decision

<P>Appeal allowed.</P> <P>Judgment of the Native Appeal Cour

Plaintiff / Appellant

C. F. Hayfron-Benjamin

Defendant / Respondent

E. Akufo-Addo

Referals

Warning: fopen(/home/ghanalegal/domains/ghanalegal.com/public_html/cases/public/cache/4da7e4099903a49e339af9aedf6c2df4): failed to open stream: Permission denied in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 44 Warning: fwrite() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 46 Warning: fclose() expects parameter 1 to be resource, boolean given in /home/ghanalegal/domains/ghanalegal.com/public_html/cases/apps/modules/render/models/cache.php on line 48