Judgment: This is an appeal from the judgment of the Ga Native Court " B " delivered on the 9th December, 1950, in favour of the defendant-respondent herein.
The claim is for a declaration that House No. D359/3 and House No. 540/3 situate at Derby Avenue are the family property of Awo Botchway of which plaintiff is the head and not the individual property of the late E. Fred Plange,
that he should dispose of it by sale to the defendant herein and account of rents collected in respect of the said houses.
The action was instituted by the plaintiff in a representative capacity as head of the Botchway family. At the trial the plaintiff was sworn and asked to be allowed representation in the person of E. Amartey she being an old lady in Accra. The application was allowed.
The court took evidence and heard all the witnesses and after the hearing gave its judgment on the finding that the house in dispute was the personal and individual acquired property of the late Emmanuel Fred Plange which he has legally sold to defendant.
On appeal to this court and at the hearing counsel for appellants brought to the notice of this court that the plaintiff's representative E. Amartey who gave evidence in place of the plaintiff was in fact not sworn and therefore the only statements on record on oath for the plaintiff are the two witnesses called on her behalf.
Counsel for respondent's opinion was asked by the court on the situation. He said he had nothing to say. The case is for the appellant and it might be clerical error. Appellant's counsel with consent of court elected to argue the appeal taking the evidence for the plaintiff for what it was worth.
The court reserved judgment. I have considered the development in the case very seriously and put to myself whether under the circumstances it could be said that there was any evidence before the Ga Native Court for the plaintiff's case in absence of the testimony of plaintiff or her representative. I thought the position was irregular on reflection and was fortified in that opinion by the oral judgment given in the case K. Kasimu Fiscian etc. v. Joseph Tetteh. 1
This was an appeal before W.A.C.A. heard on 18th March, 1952 in which the plaintiff's and defendant's representatives gave unsworn statements in the course of the hearing of the case in the Native Court. In this case the Court of Appeal held that as the plaintiff's representative was not sworn the court must hold in view of the regulation referred to that the s
