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OMENYO v. POKU AND ANOTHER


  • New
  • 1961-12-20
  • HIGH COURT
  • GLR 778-782
  • Print

BRUCE-LYLE J.


Summary

Practice?-Local court refuses application for adjournment?-Whether discretion exercised judicially.High Court?-Jurisdiction to hear an appeal after the 1st July, 1960, in a case determined by a local court in May, 1960?-Courts Act, 1960, (C.A. 9), s. 88(2).

Headnotes

On the case between the parties coming on for hearing on the 5th May, 1960, before the Wenchi Local Court for the first time, the two defendants sent a letter per bearer to ask for an adjournment on the ground that the first defendant had lost his father. The local court magistrate refused to adjourn the case, heard the evidence of the plaintiff and gave him judgment. The reasons given for refusing the application for adjournment were that the allegation that the first defendant was bereaved could not be true; that "the defendants' only method of delaying cases was by false means as it is being done in this case"; and that the bearer of the note had said that the note was given to him by some person other than any of the defendants. The defendants appealed. At the hearing of the appeal, the plaintiff-respondent contended that the appeal was not properly before the court because before the Courts Act, 1960 (C.A. 9) came into operation on the 1st July, 1960 appeals from the Wenchi Local Court lay to the Asantehene's Court by virtue of section 25 (2) of the Native Courts (Ashanti) Ordinance, Cap. 99 (1951 Rev.), and not to the High Court.

Judgement

APPEAL from a judgment of the Wenchi Local Court in a land case heard and determined in the absence of the defendants.

This is an appeal from the decision of the Wenchi Local Court, sitting at Wenchi, and dated the 5th May, 1960. The claim by the plaintiff is for a declaration of title to a piece of land situate at a place called Korkrompe. When the case was before the local court for hearing on the first adjourned date the defendants did not turn up. They sent a letter to the court per a bearer asking for an adjournment; the reason for the application was that the first defendant had lost his father and therefore had to attend a funeral. The letter of application was signed by both defendants. The court considered the application and refused it and proceeded to hear the case in the absence of the defendants. It heard the evidence of the plaintiff and gave judgment for the plaintiff on his claim.

The defendants have appealed to this court and at the hearing of the appeal counsel for the appellants sought leave of this court to argue two supplementary grounds, even though he had not filed those grounds. Counsel for the respondent did not oppose this application and this court gave counsel leave to argue the grounds. Counsel for the appellants first argued ground 1 of the original grounds of appeal. This ground in effect is that the trial court had no jurisdiction to entertain the claim, the subject-matter of the suit being land situate at a place in the Techiman local authority area and not in the Wenchi local authority area. Counsel conceded the point that the local court magistrate who heard this case also sat at Techiman and heard cases there; counsel failed to produce any order to this court showing the particular area to which Korkrompe belonged. I have examined the writ closely and I find that this land is stated as being on Wenchi stool land. There is nothing on record to show that the fact that Korkrompe was not within the jurisdiction of the trial court, was even brought to the court's notice. In the absence from the record of this alleged existing fact I hold that the court of trial rightly exercised its jurisdiction in hearing and determining the case, and this ground of appeal should fail.

Counsel next argued one of his supplementary grounds, that the court of trial did not give the defendants fair chance to defend their suit and relied strongly on the court's refusal to grant the adjournment on the application of the defendants. Counsel contended that the trial court did not exercise its discretion judicially and that the trial court failed to consider the terms of the application and exercised its discretion on facts which had little or no reference to the application before it. [p.780]

The letter of application for adjournment was written by the two defendants who made their marks to it and this was delivered to the court by one Barimah. The ground for asking for the adjournment was that the first defendant had lost his father two days prior to the hearing date and had therefore to attend a funeral. Barimah informed the court that the letter was given to him by one Adamu. The plaintiff opposed the application on the ground (and here I quote form the record of appeal) that ?"There is no element of truth in the note ?...?" To decide whether the discretion to grant or refuse such an application has been exercised judicially it is convenient and necessary to examine the ruling of the trial court. The ruling reads:

?"It would appear that the defendants?' only method of delaying cases was by false means as it is being done in this case. The bearer herein did not receive the note from either defendant but from another whose name does not appear on our record. Case to proceed?".

It is apperent from this ruling that the trial court considered the ground for the application for adjournment as false, but it is clear this reason for that finding is not supported by the record. There is nothing on record to show that apart from this case then before the trial court, the defendants had been parties in other cases in which they have adopted a similar method in delaying the hearing of those cases. The other reason that the note was given to a bearer by a person other that the defendants and therefore the note was given to a bearer by a person other that the defendants and therefore the note was false is too childish to be given any consideration.

After the court had disposed of this application, the plaintiff gave evidence and the court delivered its judgment. It is significant that in the judgment another reason was given for rejecting the application for adjournment even though no evidence was led on that issue. The reason mentioned in the judgment is: "Yaw Barimah admitted that although he came from Techiman he did not witness or hear of the death of any relative of Kwabena Adamu nor the defendants." There is nothing on record to substantiate this finding of the trial court. I find it very difficult to understand why the trial court should have considered this issue in its judgment when the issue had already been disposed of and there was no evidence before it relating to that issue. In the record of proceedings relating to what happened when the application for adjournment was being considered there is nothing to show that the bearer of the note Barimah even said what was mentioned in the judgment.

It is therefore clear that the trial court had nothing before it at the time when considering the application for adjournment upon which it could say with any degree of certainty that the ground for the application was false. I find that the grounds for refusing the application for adjournment are not supported and that the court completely failed to consider the application in its true perspective and thereby erred in the exercise of its discretion in refusing the application and this ground should succeed.

The second supplementary ground argued is that the certificate of purchase upon which the trial court based its judgment is null and void on the ground that the certificate of purchase was issued by a court sitting at [p.781] Wenchi in respect of a case tried by that court but in respect of land situate outside Wenchi. I do not propose to consider this ground in any detail, as I find that a court in Sunyani having tried a case can lawfully issue a certificate of purchase in respect of land attached and sold in Accra provided the attachment is in respect of a judgment given by the court at Sunyani. I find no substance in this ground.

Counsel for the respondent forcefully argued that the appeal was not properly before this court and that this court had no jurisdiction to entertain it. He supported his contention by drawing the attention of this court to the following facts. The judgment of the trial court was given on the 5th May, 1960; the notice of intention to appeal for transmission to this court was filed on the 28th May, 1960, and the conditions of appeal were fulfilled within the prescribed period. Counsel then drew the court's attention to section 25(2) of the Native Courts (Ashanti) Ordinance1 which was in force in May, 1960, and provided that appeals from the Wenchi Local Court lay to the Asantehene's Court and not to this court and that it was after the 30th June, 1960, that such appeals lay direct to the High Court by the operation of the Courts Act, 1960.2 In support of this contention counsel cited the case of Abena Kwabena v. Abena Boah.3 Even though this case is not binding on this court, I have given it due consideration and I find it distinguishable from this case now before me. In the case cited the appeal was brought before this Land Court, but the conditions were not fulfilled within the prescribed period and an application was brought before the Land Court asking for extension of time to fulfil the conditions. The application came before the Land Court on the 14th September, 1959. It was granted, and on the 9th October, 1959, final leave to appeal was granted. It appears to me that in this case cited the Land Court should not have entertained the application for extension of time to fulfil conditions, as at that time the court had no jurisdiction to entertain the appeal and should have remitted the appeal to the appropriate court of appeal under the second proviso to regulation 180(1) of the Local Courts Procedure Regulations, 1959.4 In this case the conditions were fulfilled within time and this appeal first came before the court for the grant of final leave on the 8th August, 1960, after the coming into operation of the Courts Act, 1960, so that at that time there was no other appeal court which had jurisdiction to which this court could have remitted this appeal, the Asantehene's Court having ceased to function.

Section 88(2) of the Courts Act, 1960 reads:

"Every case pending before the High Court of Justice or any division thereof immediately before the commencement of this Act shall be continued and concluded in the High Court referred to in this Act." [p.782]

Was this appeal pending before this court immediately before the commencement of the Courts Act, 1960? If the answer is in the affirmative then I am of the opinion that this court is properly seized of it and has every right to hear and determine it.

The notice of intention to appeal to the Land Court was filed on the 20th May, 1960. With the filing of the notice of intention to appeal I hold there was an appeal pending before this court immediately before the coming into operation of the Courts Act, 1960. My contention that an appeal is deemed to have been brought when notice of appeal has been filed in the registry of the court below finds support in the case of Yanney v. African Veneer Mahogany Exporters Ltd.5

I am of the opinion that if final leave had been granted by this court on a date prior to the 1st July, 1960 the case of Abena Kwabena v. Abena Boah cited by counsel would have been applicable. Again if the application for final leave to appeal had come before this court on a date prior to the 1st July, 1960, this court, I am sure, would have considered the transfer of this appeal to the appropriate court under regulation 180(1) of the Local Courts Procedure Regulation, 1959. On the 8th August, 1960, there was no other court to which this court could have remitted this appeal and to hold at this time that this court has no jurisdiction to entertain this appeal would be doing grave injustice to an illiterate who at the time when he filed his papers was not assisted by a solicitor and whose mistake in bringing the appeal to the wrong court, could have been set right by the, expeditious handling of his papers by the registry of the court by putting the docket before the judge in chambers for the grant of final leave to appeal at the earliest opportunity. For these reasons I hold that this court has jurisdiction to entertain this appeal.

On the only ground that the defendants were not given a fair chance to defend the suit I find that this appeal should succeed. I therefore allow this appeal and set aside the judgment of the trial court and further order that this case be remitted to the trial court for retrial. Costs for the appellants fixed at G10 10s. including counsel's G6 6s. and order that costs in the trial court be set aside and that if such costs have already been paid by the appellants they should be refunded.

I further order that the injunction order of this court be discharged and that monies in the hands of the registrar of the High Court less his remuneration be paid to the Local Court, Wenchi and be held by such court until the determination of the case by that court. Court below to carry out.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

Y. B. Amoatin for J. N. Heward-Mills

Defendant / Respondent

D. S. Effah

Referals

(1) Abena Kwabena v. Abena Boah, High Court, Sunyani, June 5, 1961, unreported.

(2) Yanney v. African Veneer Mahogany Exporters Ltd. [1960] G.L.R. 89.

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