AKOSUA KONADU AND ADJOA KONAMA v. KWASI ABOAGYE (successor to late KOFI BANING)
1950
HIGH COURT
GHANA
CORAM
- Smith, AG. C.J
Areas of Law
- Civil Procedure
1950
HIGH COURT
GHANA
CORAM
AI Generated Summary
This case involves an appeal regarding the validity of a Native Court trial where a panel member was substituted during the proceedings. The appellant argued that this rendered the trial a nullity. The court reviewed previous cases and distinguished between irregularities that affect jurisdiction and those that do not. The court held that procedural irregularities, such as the substitution of panel members with the consent of the parties, do not render a trial null and void. The appellant's argument was rejected, and the appeal was dismissed. The legal principles established include the role of party consent in procedural irregularities and the distinction between irregularities affecting jurisdiction and those that do not.
Judgment:
In this Appeal Counsel for the appellant argued-
"That both the trial by the Native Court of first instance and the judgment of the Native Court were a nullity on the ground that the Native Court of first instance was not properly constituted during the trial."
The record of the case contains the following marginal note dated 31-5-48:
"Upon consent of parties and the Court, Stephen Ahyia from a letter received from the Chief Registrar of the Native Court is no more a member on panel E. A. Konan who has been present during the hearings therefore substituted and record duly re-read."
and the appellant argued that this appeal falls within the principles of a long line of decisions of this Court and the West African Court of Appeal commencing with Nana Tawiah III v. Kwesi Ewudzi (1) and ending with the case of Henry Ofori against William Anku (2) to which latter judgment I was party.
I am in general agreement with the broad principle laid down in this series of cases. But it appears to me that it has been stated too widely and that where it has been extended to cover civil cases in which the parties consented to the procedure followed, the decisions have gone too far and are in conflict with the English Cases on the point. None of the English cases decide that the civil Court whose constitution has changed during the hearing has no jurisdiction to dispense with the recalling of witnesses who gave evidence at the early stages of the trial.
It would seem that this proposition is derived from a remark of Lord Justice Scrutton in the case of Colehill v. Manchester Corporation (3) at page 259 where he said-
" . . I doubt whether a Judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in Court in the course of the trial before the jury and another Judge, it not being a case of evidence on commission or before an examiner."
This point in the case however was not referred to at all by the other Lord Justices who heard the appeal and, in spite of the remark made by Lord Justice Scrutton, his judgment proceeded to deal with the appeal as if his doubts on the correctness of the procedure followed in the case had been resolved.
In the case of ex parte Bottomley and Others (4) F. E. Smith, K.C. later Lord Birkenhead, L. C., who appeared for the movers, said in the course of his argument:
"In Reg. v. Jeffreys (5) the mere reading over of evidence already taken to a magistrate who was not present when it was giv