ADONKOSI & ANOR. v.

HOWUSU & ANOR

[1959] GLR 222

Division: IN THE HIGH COURT (LANDS DIVISION), ACCRA

Date: 12TH MAY 1959.
Before: OLLENNU J.

Appellate procedure—Duty of Court to hear both sides—Argument need not be oral—Proper entry on
record when a party relies on written argument only.

HEADNOTES
The present was a second appeal (Accra L.A. 87/1957). For the first appeal, heard by the Kpandu
District Native Appeal Court, the appellant had filed grounds of appeal which incorporated very fully
the arguments in support of the grounds. He was not heard orally. The Court of first appeal did not
record any statement by him that he relied upon the written argument, and did not wish to address the
Court.
Regulation 129 of the Native Courts (Southern Section of Togoland) Procedure Regulations provides
as follows:—
“If when an appeal is called on by a Native Appeal Court, both parties appear, each such party shall be
heard.”

Counsel at the second appeal argued that the omission of an oral hearing, and of any note that
appellant waived his right thereto, vitiated the first appeal.
Held:
(1) that if a party has submitted his argument in writing and fully, then, provided the Court has
considered what the party has written, the party has been “heard” within the meaning of the
Regulation, though he has made no oral submission to the Court;

[p.223] of [1959] GLR 222

(2) that where a party states that he relies on his written submissions only, this should be recorded
by the Court. If it be not recorded, the omission will not be fatal if it appears that his written
argument was fully set out, and was considered by the Court.

CASES REFERRED TO
(1) Krakani v. Agbenoto & anor. (Land Appeal No.86/57; judgment delivered on 28th April,
1959);
(2) Anago & ors. v. Avudega III (Land Appeal No.168/58; judgment delivered on 30th April,
1959).

COUNSEL
Apaloo for the appellant.
Boateng for the respondent.
JUDGMENT OF OLLENNU J.
On the merits there is no substance in this appeal.
The only ground of appeal which was seriously argued in this second appeal was the additional
ground filed on the 9th May, 1959, which reads:
“The judgment of the Native Court is a nullity as the appeal was not heard in accordance with law.”

In support of that ground, Counsel relied upon a judgment delivered by me on the 28th April, 1959, in
Land Appeal No. 86/57, entitled Krakani v. Agbenoto & anor., in which I interpreted Regulation 129
of the Native Courts (Southern Section of Togoland) Procedure Regulations to mean “that each party
must be given an opportunity if necessary to say anything he might wish to urge in support of or
against the appeal,” and, further, that where on the face of the record of proceedings it appeared that
judgment was given against a party to an appeal, whether appellant or respondent, non-compliance
with the provisions of the said regulation would make the proceedings before the Native Appeal Court
a nullity. Counsel in the present appeal accordingly asked the Court to declare the findings before the
Kpandu District Native Appeal Court null and void, as it does not appear that the appellant was given
a hearing before his appeal was dismissed.
There is, however, also the judgment delivered by me on the 30th April, 1959 in Land Appeal No.
168/58, entitled Anago & ors. v. Avudega III. In that case I stated:
“In my opinion the word ‘heard’ in the regulation should be interpreted to include ‘reading written
arguments’ as well as hearing oral arguments.”

The appellant therein having in fact filed exhaustive written arguments of his appeal, and the Native
Appeal Court having given due

[p.224] of [1959] GLR 222

consideration to those written arguments before dismissing his appeal, I held that there had been
sufficient compliance with the provisions of the said regulation.
In my opinion the present appeal cannot be distinguished from that case. The lengthy document filed
by the appellant went far beyond mere “detailed grounds of appeal;” it stated the detailed grounds of
appeal, and then argued each such detailed ground of appeal in full. Thus the appellant may properly
be said to have argued very fully and exhaustively in support of his appeal; and the respondent, on his
side, replied to those arguments in writing.
At the same time, where a party states that he relies upon grounds of appeal which he has filed and/or
upon written argument, and does not wish to make oral submissions, that fact should be recorded. But
the omission to make such a record will not be fatal to the judgment; it will only be a technicality if
on the face of the record it is clear that the party has fully submitted his arguments or submissions in
writing, and the Native Court appears to have considered them. In the circumstances of the present
case, although the record of proceedings does not contain a specific entry that the appellant stated that
he did not wish to make any oral submissions, I am satisfied that he was in fact heard in the sense in
which I have interpreted Regulation 129, and therefore there has not been a denial or miscarriage of
justice.

DECISION
The appeal is dismissed, with costs fixed at £17 1s.6d., including 10 guineas Counsel’s costs.