“The trial judge, however, without referring what he thought was a discrepancy to the parties for their explanation, took upon himself to decide the issue he created for himself on his own examination and inspection of the plans. With respect we think it was a mistake on the part of the learned trial judge to take that course of his own accord and to give judgment upon matters on which the parties or their counsel were not heard or on which there was no evidence before him. In the case of The United Africa Company Ltd. v. The Commissioner of Police (WACA 2889-2924, July and October 1948, cyclostyled WACA Reports, p.72) the West African Court of Appeal (Sir Henry Blackall P.) in similar circumstances made the following observations: “At the hearing of the appeals it was submitted on behalf of the appellant company that while the company was admittedly liable for the acts of its servants, the learned Judge should not have taken upon himself to consider the entries which so largely contributed to his conclusions without giving the company an opportunity of being heard, the issue as to the policy of the company never having been an issue during the hearing. The appellant company therefore sought leave to call additional evidence on these matters.” The West African Court of Appeal thereafter granted leave in that case to call additional evidence and observed further as follows: “It is entirely contrary to the usual practice that the Court should after the close of the trial, and in the absence of either party, raise an entirely fresh issue based upon the examination of certain documents tendered for another purpose, and, without summoning the parties again before him, proceed to determine this issue for the purpose of assessing the penalties to be imposed. When as the result of further consideration of the evidence the judge reached a conclusion which would of necessity affect his view of the gravity of the offence, and consequently of the appropriate penalty, he should in our view have indicated to the appellants the nature of the issue thus raised and afforded them an opportunity of giving further evidence in relation thereto.”
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