<p>Windsor-Aubrey, J. 1. The proceedings against which this appeal has been lodged arose out of earlier proceedings in the Divisional Court, Sekondi, wherein the appellants sued the respondent for a declaration, that as representatives of the fishing community of Aboadzie they were entitled to collect fishing tolls and for £200 damages from the respondent for unlawful interference with the collection of the said tolls.</p><p>2. The trial judge rightly decided that the real issue was who was the headman and entitled to represent the Aboadzie community and dismissed the plaintiffs- appellants’ action. He further decided that he had no jurisdiction to determine this issue and came to the conclusion that the Shama State Council was the proper body to determine who had been lawfully appointed headman. From that decision dated the 4th December, 1951, there has been no appeal. The claimants to the headmanship are Kofi Kokro and Kofi Enum.</p><p>3. In due course, the Shama State Council determined the issue of headmanship at a meeting held on the 31st May, 1952, and the said Court was notified accordingly. The Shama State Council held that Kofi Enum the respondent was the headman.</p><p>4. Thereafter on the 16th June, 1952, the said Kofi Enum filed a motion on notice moving the Court for payment out of moneys collected and deposited in Court by the receiver appointed by the Court. Kofi Kokro per Jacob Afisara Yapkum opposed that application and filed an affidavit wherein he alleged that the appointment of Kofi Enum had not been properly made. In paragraph 6 of that affidavit, dated the 20th June, 1952, the deponent stated that “the State Council did not call us and we were not present when it is alleged the headmanship was conferred on Kofi Enum”.</p><p>The matter was argued before Mr. justice Hyne on the 21st July, 1952, when the appellant's counsel appeared before him. A full note of the argument was recorded by the learned trial judge and it is apparent that appellant’s counsel substantially repeated the arguments which had been raised at the original trial of the actions and to which I have referred. Hyne, j ,’s note contains no reference what whatsoever to any argument on the matters mentioned in paragraph 6 of the affidavit referred to above and we are satisfied that the point was not taken before him; consequently, that it was not considered is entirely the fault of the appellant's counsel, On the law, after dealing exhaustively, and, in my opinion, correctly with the legal issues before him he made the following findings (inter alia):-</p><p>“It follows therefore that while the State Council can perform the functions of the old Tribunal and can give decisions in disputes as to the appointment of a headman it cannot elect a headman for the village of Aboadzie and as I read Benson, Ag. j .'s judgment, he did not direct the Shama State Council to elect a headman. </p><p>“I agree that the Shama State Council is the proper authority to investigate the matter, but not as a matter of a constitutional nature, but as the highest authority in the State in all matters relating to the welfare of the State.”</p><p>5. I am in agreement with the ruling of Hyne, j., and it follows-therefore that the dispute as to the headmanship was properly referred to the Shama State Council, but it was not the duty of the State Council to elect a headman, but rather to decide who had been elected headman by the village and to exercise the former function of the Paramount Chief by confirming or rejecting that appointment.</p><p>6. On examining the minutes of the meeting of the State Council held on the ; 31st May, 1952, I observe that the respondent “ Kofi Enum “ is described as to being present as a member of the Council which met to determine the headman. <sup class='page-numbering' title='Page 315'>*Page 315</sup>ship, and there is nothing in the record of the meeting to show that he retired wile the appointment of the headman was determined. Furthermore it would seem from the record that the appellant was neither present nor represented by any person on his behalf and accordingly had no opportunity to present his case. </p><p>7. A decision reached in such circumstances is clearly untenable having been lade contrary to the principles of equity and natural justice. Both parties are titled to be represented and heard, and neither should sit in the Council during deliberation of their dispute. In my opinion, therefore the decision the Shama State Council must be set aside.</p><p>8. The case is remitted to the Divisional Court, Sekondi, for re-hearing of the lotion' after the matter has been referred back to the Shama State Council, which is required to determine who has been appointed headman on the lines ,t out in paragraphs 5 and 6 of this judgment. Costs of hearings before the Divisional Court to abide the result of the re-hearing. There will be no order as to costs on this appeal.</p><p>Foster-Sutton, P. I concur. Coussey, J.A. I concur.</p><p>Case remitted for re-hearing with directions.</p>