Dadiesuabahene Kwesi Edusei V. Akosua Denkye (1947)

LawGlobal Hub Judgment Report – West African Court of Appeal

Native Court Procedure—Inspection of locus in quo—Native Courts (Ashanti)Ordinance, section 10.

Where a Native Court decides that inspection of the locus should be made, it is not necessary for all the Court members trying the case to attend the inspection. If the Court so decides, independent witnesses may be sent to visit the louts and report.

Nana Fssell Tawiah III v. Kwesi Ewudsi (1) distinguished.

Case referred to:

(1) Nana Essell Tawiah III v. Kwesi Ewudzi, 3 W .A .C.A . 52.

Appeal from the Supreme Court of the Gold Coast.

Benjamin for Appellant (plaintiff at first instance).

Adjaye for Respondent (defendant at first instance).

The following judgment was delivered:

Harragin, C.J. There is only one point of substance in this appeal, and it is to be found in ground 1 of the Additional grounds of Appeal filed on the 11th of December, 1946, which reads as follows:—

” The proceedings before the Asantehene’s Court ‘ A ‘ were a nullity in that the Kyidomhene who joined in giving judgment was not present at the inspection of the land.”

The’facts in this case are that when the case came up on appeal to the Asantehene’s Court ” A “, the Court decided that it was necessary that viewers should see the locus in quo, and with this object in view all the members of the Court with the exception of the Kyidomhene visited the spot. On their return, they put in a Report which was read in open Court and put in as an exhibit.

After hearing the Report read, the Kyidomhene stated that he ” fully supports the findings of the Inspection Party”. The Court then proceeded to give judgment dismissing the appeal for lack of substance.

On these facts it is argued by the appellant that, on the authority of Nana Essell Tawiah III v. Kwesi Ewudzi (1), together with the other authorities mentioned in that judgment, the whole appeal trial was a nullity.

The facts in that case were that certain members of the Tribunal who gave judgment were not present during the whole of the proceedings, but the facts in this case are very different. Here all the members of the Tribunal had been present during the whole proceedings except during the time that the inspection was taking place, but as soon as they returned they put in a Report which was read in open Court in exactly the same way as would have been done had the Tribunal sent two independent viewers to visit the spot and report as is very often done in these cases.

The Native Courts (Ashanti) Ordinance (Cap. 80), section 10, provides as follows:—

” Subject to the provisions of this Ordinance and to such rules as may be made under .section 37 the jurisdiction conferred on Native Courts shall (as regards practice and procedure) be regulated in accordance with native law and custom.”

It is common knowledge, and it has been brought to the notice of this Court on many occasions that in land cases it is unusual for the whole of the Native Tribunal to adjourn to the locus in quo. In the first place it might be very tedious or even physically impossible for some of the elder members to undertake the physical exertion and a custom has grown up whereby certain members of the Tribunal are detailed to visit the land and to report back to the Tribunal. In other cases entirely independent witnesses are sent by the Tribunal to visit the land and report. Such being the custom, we are of the opinion that section 10 of Cap. 80 justifies the practice as it cannot be said to be repugnant to natural justice, equity and good conscience (section 74 (1) of Cap. 4).

We are not of the opinion that it can be compared in any way with the facts in the case of Nana Tawiah III v. Kwesi Ewudsi (1) where certain members of the Tribunal purported to give a judgment in a case in which they had only heard a portion of the evidence.

The facts of the case amply justify the finding of the Court of first instance and the two Appeal Courts which have sat in judgment upon this case with the same result.

The appeal is dismissed with costs assessed at £27 3s. Od.

Appeal dismissed.