Daniel Amoku V. Yaw Duro (1953)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Native Courts—Appeal to Land Court—Power to re-hear on appeal not exercisable after judgment set aside—Native Courts Colony Ordinance, 1944, section 50.

Facts

So far as relevant the above section provides that ” when sitting in its appellate capacity . . . the Land Court may . . . re-hear the cause in whole or in part and may admit such further evidence as it sees fit and may reverse, vary or confirm the decision of the Court from which the appeal is taken and may make such other order as it shall consider the justice of the case requires ”.

After judgment in plaintiff’s favour the defendant appealed from the Native Court to the Land Court, where the Judge directed that the action be set down for re-hearing and also set aside the judgment of the Native Court. Later pleadings were ordered and later still the suit was heard de novo, and judgment was again given for the plaintiff.

The defendant now appealed to the West African Court of Appeal arguing that as the judgment of the Native Court had been set aside the re-trial was null and void. For the plaintiff it was argued that the order for a re-hearing was made by a competent Court and stood until it was set aside, and that the defendant having carried on under it had waived the irregularity in procedure.

Held

This was not an error in procedure but a defect in jurisdiction appearing on the record: for the jurisdiction of the Land Court was derived from section 50 of the Native Courts (Colony) Ordinance, under which the Land Court had no legal authority, having set aside the judgment of the Native Court, to hear evidence in the suit.

Appeal allowed.