Dogbe Abortsi V. Sosu Avulete (1949)

LawGlobal Hub Judgment Report – West African Court of Appeal

Case stated—Procedure on re-hearing under Native Courts (Colony) Ordinance,1944, section 50.

When the Land Court of the Gold Coast, sitting in its appellate capacity, decides to re-hear a cause in whole under section 50 of the Native Courts (Colony) Ordinance, 1944, the judgment of the Native Court appealed from should not be first set aside.

Case stated by a Judge of the SUpreme Court of the Gold Coast.

Bossman for Appellant.

Aktifo Addo for Respondent.

The following judgment was delivered:

Blackall, P. This is a case stated by Jackson, J., asking for the opinion of this Court under section 6 of the West African Court of Appeal Ordinance. The point upon which our opinion is sought is:—

“When the Land Court, sitting in its appellate capacity, decides to re-hear a cause in whole under the provisions of section 50 of the Native Courts (Colony) Ordinance, 1944, should the Court before hearing the evidence first set aside the judgment of the Native Court from which the appeal is made ? “

It appears to me that under section 50 of Ordinance No. 22 of 1944 a distinction is drawn between the procedure to be followed where the Land Court decides to re-hear a cause itself and where it decides to refer the case back to the Court below for re-hearing. In the latter event it is expressly provided that the re-hearing shall be de novo and this necessitates the original judgment being set aside. But the words ” de novo ” are not to be found in that part of the section which deals with a re-hearing by the Land Court. On the contrary, the Land Court may re-hear the cause in part if it chooses so to do, and may either reverse, vary or confirm the decision of the Court below. But if it were obliged to set aside the judgment of the Court below the exercise of these powers would be stultified. It would not be practicable to re-hear the cause in part for that would leave the remainder of the case unheard. Nor would it be possible for the Land Court to vary or confirm a decision of the Court below which had already been set aside for that decision would have ceased to exist. For the same reason it could not reverse it.

As then Quashie-Idun, J., decided to direct a re-bearing by the Land Court I think he was wrong in setting aside the judgment of the Native Court, and I consider that the answer to the question propounded in the Case Stated should be in the negative.