Kwarena Yeboah V. Chief Kofi Taibil (1952)

LawGlobal Hub Judgment Report – West African Court of Appeal

Appeals from Native Court—Power to re-hear—Judgment of Native Court set aside—Native Courts (Colony) Ordinance, 1944, section 50.

Facts

The above section authorises the appeal Court, namely the Court hearing an appeal from the Native Court, to re-hear the cause. The point in the present case was whether after the judgment of the Native Court was set aside there could be a hearing de novo in the appeal Court.

To begin with there was a judgment in the Native Court and then a judgment in the appeal Court (then the Court of the Chief Commissioner); later, on appeal from him, the West African Court of Appeal declared the trial before the Native Court to be a nullity and directed the Chief Commissioner’s Court to set aside the judgment of the Native Court and hear the case de novo; the Chief Commissioner’s Court set that judgment aside and adjourned the hearing to be made de novo sine die. Subsequent legislation replaced the Chief Commissioner’s Court by the Land Court as the appeal Court, and the case was transferred to the Land Court.

The Land Court Judge doubting whether he had jurisdiction to deal with the
case, asked for the opinion of the West African Court of Appeal and was told
to carry out its order as the successor of the Chief Commissioner; whereupon the
Judge made an order for a plan and pleadings.

The co-plaintiff in the case appealed on the ground that the Judge had no jurisdiction as the trial had been declared a nullity and the Native Court’s judgment had been set aside, which left nothing in the appeal Court to adjudicate upon.

Held

If the judgment of the Native Court is first set aside, there cannot be a re-hearing of the cause in the appeal Court as there is no judgment left for the appeal Court to reverse, vary or confirm. In this case after the Native Court’s judgment was set aside by the Chief Commissioner’s Court (then the appeal Court) there was nothing pending there for transfer to the Land Court as its successor, and the Land Court had no jurisdiction to make the order appealed from.

Appeal allowed: order of Land Court set aside.