ODIKRO ESIAM V. JOSEPH SAM BREW OF ASAFA

 Foster-Sutton, P. It was conceded by both Mr. Hayfron-Benjamin, for the appellant, and Mr. de Graft Johnson, for the respondent, that the only question for determination on this appeal is whether Lingley, J., was right in holding that there was nothing “pending” in the Native Appeal Court of Ayan-na- Breman Confederacy, Cape Coast District, which could be transferred for determination by the Land Court.

The appeal first came before the Native Appeal Court for hearing on the 14th of April, 1948. The appellant was present, but the respondent appeared by an agent who produced a letter asking for an adjournment. Pursuant to that request the hearing of the appeal was adjourned until the 27th April, 1948. On that day the respondent again failed to appear, and the bailiff of the Court intimated that he had been unable to find the respondent to serve formal notice of the date of hearing on mm. The Native Appeal Court then decided to proceed with the appeal and after a long and careful hearing, which terminated on 3rd May, 1948, they allowed the appeal and set aside the judgment of the Native Court “B”.

On the 28th June, 1948, the unsuccessful respondent made an application to the Native Appeal. Court, by motion, asking it to set aside its decision and re-hear the appeal on the ground that the hearing took place ex parte. After hearing argument the Court granted the applicant respondent's request and fixed the appeal for re-hearing on the 27th July, 1948, by a fresh panel. After that the appeal came before the Native Appeal Court on two occasions on neither of which did the respondent put in an appearance. In those circumstances the Court withdrew its consent to the re-hearing of the appeal, at the same time intimating that their judgment delivered on the 3rd May, 1948, remained effective.

Finally an order was made on the 2nd May, 1949, transferring the case to the Lands Division of the Supreme Court.

It follows from the foregoing that the real question for determination is whether it was competent for the Native Court of Appeal to re-open the case after their judgment of 3rd May, 1948. The respondent was fully aware of the proceedings before the Court. He filed a detailed “Reply to Appellant's Grounds of Appeal”, pages 54 and 55 of the record, and he must, in my view, be deemed to have had notice that his application for an adjournment had been granted and that the hearing of the appeal had been fixed for the 27th April, 1948, because it is clear from the record that the agent he sent to ask for the adjournment was fully informed of the Court's decision by the President of the Native Appeal Court. While it is true that the appeal was heard in his absence it cannot, I think, be said that he was unaware of the position.

Apart, however, from the question as to whether the appeal was heard ex parte in the sense the term has been interpreted in this case, the Native Courts of Appeal are expressly authorised, by regulation 127 of the Native Courts (Colony) Procedure Regulations, 1945, inter alia, to proceed to hear an appeal ex parte in the absence of the appellant or respondent.

In my opinion, once the Native Appeal Court had dismissed the appeal it was functus officio, section 51, of the Native Courts (Colony) Ordinance, 1944. I does not apply and the Court, therefore, had no power to re-open the matter.

For the reasons I have given, I am of the opinion that there was nothing “pending” which was capable of being transferred to the Land Court for adjudication. That being so, in my view, this appeal should be dismissed with costs.

Coussey, J. I concur. Korsah, J. I concur.

Appeal dismissed.