J. O. Abbey & Anor V. Alice Lamiorkor Lamptey (Head Of The Family Of Adu Kobla, Deceased) (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Practice and Procedure—Consent order for transfer to Land Court before namedJudge—Hearing by different Judge already aware of the facts—Disqualification—Judgment voidable—Courts Ordinance, section 28.
Facts
A consent order was made by the Chief Justice of the Gold Coast transferring two suits, which had been consolidated, to the Land Division to be tried before M’Carthy, J., ” as Mr. Justice Conssey is already aware of the facts “. No formal order was drawn up. On the cases coming before M’Carthy, J., they were adjourned, and later came before other judges who merely adjourned them and finally came on for hearing before and were heard and determined by Coussey, J.
Held
(i) That, unless and until the order for transfer is varied, the only Judge competent to try the case is the Judge to whom it is transferred by the order;
that failure immediately to draw up a formal Order does not invalidate the order or render it inoperative;
under the Courts Ordinance, an order of transfer need not be addressed to any Judge other than he from whom the case is to be transferred;
the Order of the Court could not be evaded by failure to object to its non-observance;
Coussey, J., was not competent to try the suits;
Coussey’s, J., foreknowledge of the facts could not be said to be not ” something reasonably likely to bias or influence ” his mind (per Field, J., in R. v. Mayor and H. of Deal, Ex. parte Curling (2) ) and therefore his judgment was voidable and must be set aside.
Appeal allowed.
