JUDGMENT OF SOWAH J.A.
This is an appeal from the ruling of the Circuit Court, Sunyani, disallowing an application by the plaintiffs seeking to tender the testimonies of two witnesses who gave evidence in the suit at the Tano Local Court, Bechem, and before transfer of the suit to the High Court, Sunyani.
The original writ was issued out of the Tano Local Court; during its pendency, the defendants raised the issue of jurisdiction of the court to entertain it; thereupon, there was caused a transfer of it to the High Court, Sunyani (see paragraph (9) of the statement of claim). Pleadings were ordered in accordance with the rules of court and when the matter came up for hearing, the learned judge of the High Court made the following order:
“Order:
Due to the great number of older cases in the cause list and the number of part-heard cases to be disposed of before the criminal session on 5 June 1968, which session is likely to take the remainder of this legal term which ends on 31 July 1968, it will be more convenient to transfer this case to the circuit court which has jurisdiction now to deal with the case as the value of the land is £G400 (N¢800.00) as pleaded. Case is therefore transferred to Circuit Court, Sunyani, for hearing on 13 June 1968.
(Sgd.) Sampson Baidoo
JUDGE.”
The circuit court became seised of the proceedings thereafter. At the hearing, the applicants applied in proper fashion to tender the evidence of the said witnesses who had given evidence in the said local court and had since died. Learned counsel sought in aid of this application, Order 37, r. 28 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which reads, “All evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the cause or matter.” The circuit judge, in dismissing the application, made the following pronouncement:
“This suit was transferred to this court for hearing because the local court which purported to entertain the suit had no jurisdiction to do so. The proceedings before that court were therefore in principle void ab initio. But for the statutory provisions permitting cases in such situations to be transferred by or to the High Court, the suit should have been dismissed. It is therefore not my view that this trial is a continuation of the case as was heard in the local court. This is a trial de novo and any evidence before the local court is not part of the proceedings before this court. In
