MORLAI v. SEDULA
SuPREME CouRT (Tejan, J.): January 21st, 1970
(Mag. App. No. 5/ 67)
 Civil Procedure-assessors-replacement of assessors during trial-replacement
possible at any stage with consent of parties and approval
of magistrate: Where a civil case is being heard with assessors in a
local court there must be two assessors throughout the hearing, but
the parties may, with the approval of the magistrate, replace one
assessor by another at any stage of the proceedings (page 7, line 33- 30
page 8, line 1).
 Courts-local courts-assessors-replacement of assessor during trial
-replacement possible at any stage with consent of parties and
approval of magistrate: See  above.
The parties sought a declaration in a local court as to the ownership
of certain land.
A dispute concerning the ownership of land was taken before a
District Appeal Court, consisting of a magistrate and two assessors.
During the trial one of the assessors was absent and the parties 40
selected a replacement with the approval of the magistrate. A
THE AFRICAN LAW REPORTS
decision was reached in favour of the respondent and the appellant
appealed to the Supreme Court on the grounds (a) that the court
was not properly constituted, having rendered itself incompetent to
hear the appeal, (b) that the decision was against the weight of
evidence, and (c) that the proceedings were irregular.
The appellant contended that since there was nothing in the Local
Courts Act, 1963 which entitled the court to replace an assessor siinply
by consent of the parties, the trial had been effectively heard by only
one assessor and the court was not properly constituted and its
proceedings irregular. He also contended that the decision was
against the weight of evidence.
The respondent maintained that in civil cases the rules of evidence
could be relaxed by consent of the parties and since both parties had
agreed to the replacement of the assessor and the magistrate had
approved, the proceedings had been heard by two assessors throughout
and the court was properly constituted.
Case referred to:
(1) fuxon-Smith v. R. , Si erra Leone Court of Appeal, unreported, distin-
Local Courts Act, 1963 (No. 20 of 1963), s.29(l):
The relevant terms of this sub-section are set out at page 7, lines
s.33(2) : The relevant terms of this sub-section are set out at page 9, lines
Buck for the appellant;
30 Yilla and Thompson for the respondent.
This appeal is from the decision of Mr. Hume, Senior Police
Magistrate, and two assessors forming the District Appeal Cqurt in
35 Kambia. The decision appealed against was given on December
Mr. Buck, who represents the appellant has appealed on three
grounds, namely, (a) that the court was not properly constituted; (b)
that the judgment is against the weight of evidence; and (c) that the
40 proceeding in the District Appeal Court was irregular. .
With regard to the first ground of appeal, Mr. Buck states that
:MORLAI v. SEDULA, 1970-71 ALR S.L. 5
the District Appeal Court was not properly constituted, had exceeded
its jurisdiction and rendered itself incompetent to hear the appeal. In
this c01mection, Mr. Buck refers to s.29 of the Local Courts Act, 1963.
In his argument Mr. Buck states that the learned magistrate selected
two assessors namely, Allie Tarawallie and Allie Morifoday, but that 5
at p.6 of the records, Mr. Allie Tarawallie was absent, and that both
parties selected one Mr. Hassan Kai to replace him. According to Mr.
Buck, there is no provision in the Act which entitles the court to
replace assessors with the consent of the parties and he then refers to
]uxon-Smith v. R. (I) where it was held by the Sierra Leone Court of 10
Appeal that where a procedure has been laid down, the provision must
be complied with. Mr. Buck stresses the point that in fact only one
assessor listened to the case of both parties.
In reply, Mr. Thompson for the respondent refers to Phipson on
Evidence, lOth ed., at 11 (1963) where it is said that: "In civil, but not 15
in criminal cases, the rules of evidence may be relaxed by consent or
contract of parties, or order of the cou1t." Mr. Thompson refers to
p.6 of the records where both parties selected a common replacement
which was approved by the magistrate.
I agree with Mr. Thompson that in civil cases, the parties may 20
relax the rules of evidence. It is quite clear from the records that
both parties themselves selected the replacement and it was not the
magistrate who selected the replacement. The case of ]uxon-Smith v.
R. cited by Mr. Buck is a criminal case, whereas the present case is a
civil case, and as such the ruling in that case has no application to 25
the present case.
Section 29(1) of the Local Courts Act, 1963 states:
"As from the commencement of this Act, there shall be
constituted a District Appeal Court which shall consist of the
Police Magistrate for each District sitting with two Assessors 30
selected by him from a list of experts in customary law drawn
up by the District Officer .... "
In this particular case, one of the assessors was absent. Both
parties, it appears to me, were desirous to proceed with the hearing of
the case, and they therefore selected another assessor who was 35
approved by the magistrate. The magistrate did not at any time
throughout the proceedings hear the case with one assessor. There
have been two assessors throughout the hearing of the case as provided
by s.29(1) of the Act; the replacement was done by the parties to the
action, and this being a civil case, the parties were entitled to choose 40
another assessor at any stage of the proceedings, with the approval of
THE AFRICAN LAW REPORTS
the magistrate. In the circumstances, I hold that the court was
For the purposes of convenience, I shall deal with grounds 2 and
3 together namely, that the judgment was against the weight of
5 evidence, and that the proceedings in the District Appeal Court were
Counsel for the appellant has referred me to p.l of the
proceedings and the passage of which counsel is complaining runs
10 "I asked the appellant why he had trespassed and he said
the bush was his. I summoned the appellant to the late
Paramount Chief Kandeh Kolleh. He visited the bush. He
decided that the Bramaia people (i.e. the appellant) had trespassed
on the Shekaia land. From that time, he ruled that the Maligie
15 stream was to be the undisputable boundary between us. He
then returned to Kukura. One Alikali Momoh of Bramaia
insisted that an oath should be taken to find the true owner of
the disputed land. The bush in dispute was the one the appellant
brushed when he came across the Maligie stream to Shekaia
20 land. Alikali Momoh took oath on the Holy Koran. As a result,
the Paramount Chief gave him the disputed bush for the Bramaia
According to the appellant's counsel, the learned magistrate and
the two assessors ought to have accepted the above passage, but they
25 failed to do so and the verdict was against the weight of the evidence.
I entirely disagree with appellant's counsel. This is a question of fact,
and it is the function of the magistrate to determine questions of fact.
Moreover, at the same p.l of the proceedings, there is this piece of
30 "Before Alikali died, he realised that he had falsely claimed
the bush and he returned it to me. One Brima and another
Lamina Sillah (both called and identified) were present. There
was one Elder Foday whom Alikali Momoh selected to be chief
witness of the handing over."
35 It appears to me that the magistrate and the assessors accepted this
piece of evidence, and accordingly decided in favour of the respondent.
Counsel for the appellant also complained that the proceedings
before the magistrate were irregular, and in this connection, he
repeated substantially the argument he pursued under ground 1. I
40 have already ruled that there was no irregularity, but even if there
was irregularity, the appellant is debarred from complaining under
HEDJAZI v. FAHS, 1970-71 ALR S.L. 9
s.33(2) of the Local Courts Act, 1963, which reads thus:
"Notwithstanding that the Appeal Court is of the opmwn
that a point raised on appeal might be decided in favour of the
appellant no process or proceedings of a Local Court shall be set
aside or declared void by reason of any defect in procedure or 5
want of form or any other reason of a purely technical nature . .. . "
I agree entirely with the findings of the magistrate and assessors.
I accordingly dismiss the appeal with costs assessed in the sum of Le