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DORYUMU II & ORS. v. ABABIO II


  • appeal
  • 1959-03-23
  • COURT OF APPEAL
  • GLR 137-140
  • Print

KORSAH C.J., VAN LARE J.A. AND OLLENNU J.


Summary

Forests Ordinance?-Reference to Native Court by Reserve Settlement Commissioner?-No appeal therefrom to Land Court.

Headnotes

(In reading the following headnote, it should be borne in mind that the Forests Ordinance was amended as on and from the 27th November, 1954 in various respects relevant to this case).Disputes having arisen as to the ownership of land within the area which it was proposed to constitute as the Bimpong Forest Reserve, on the 10th March, 1954 the Reserve Settlement Commissioner (acting under the pre-amendment provisions of sec. 9(2) of the Forests Ordinance) referred the dispute to the Native Court of Denkyire Confederacy (Grade ?"A?") for their decision of six issues stated by him. Section 9(2) provided that ?"upon such reference it shall be deemed for all purposes to be a civil suit before such Native Court.?"The Native Courts (Colony) Ordinance , which was then in force, provided by sec. 47 that ?"Any party aggrieved by the decision or order of...a Grade A Native Court in a land cause... may appeal to the Land Court.?" ...?"Land Cause?" was defined by sec. 2 of the last-named Ordinance as meaning ?"a cause or matter relating to the ownership, occupation or possession of land.?" ?"Cause?" was defined in the same section as including ?"any action, suit or other original proceedings between a plaintiff and a defendant and also any criminal proceedings;?" ?"Matter?" was defined in sec.2 as including ?"any proceeding in a Court or Native Court not in a cause.?"Sec. 52(2) of the Native Courts (Colony) Ordinance dealt with interlocutory appeals. It provided that (a) ?"where the Native Court against whose interlocutory order or decision it is desired to appeal is the Court authorised to sit as the Native Appeal Court for the area; or(b) where there is no Native Appeal Court for the area, the appeal shall lie only to the Magistrate?'s Court.?"Sec. 9(6) of the unamended Forests Ordinance contemplated the possibility of the hearing and determination of an appeal from the judgment of the Native Court prior to the delivery of judgment by the Reserve Settlement Commissioner?-?"the Reserve Settlement Commissioner shall accept and adopt the judgment of the Native Court . . . or, in the case of an appeal from such judgment, the judgment of the Appellate Court, for all the purposes of the enquiry and of his judgment.?" Equally the Ordinance as amended requires the Commissioner to adopt the Native Court of Appeal?'s judgment where there has been an appeal to such a Court.The Denkyire Native court on the 2nd July, 1954 reached its decisions on the issues submitted to it. One of the claimants, being dissatisfied with the Native Court?'s decision, filed on the 27th September, 1954, Grounds of Appeal in the Land Court, Cape Coast. [p.138] On the 27th November, 1954 the Forests (Amendment) Ordinance, 1954, came into operation. Section 9(5) of the principal Ordinance (as amended) now provided that there should be no appeal from the judgment of a Native Court on a reference to it by the Reserve Settlement Commissioner, other than to a Native Appeal Court in certain circumstances or under sec. 16 of the Ordinance. The latter section, as amended, provided for an appeal to the West African Court of Appeal from the Commissioner?'s judgment, including the judgment of the Native Court incorporated in it.The appeal to the Land Court, which was still pending on the 27th November, 1954 should thus have abated on that date. On the 30th December, 1954, however, the Land Court (Acolatse J.) dismissed it on its merits. On the 22nd October, 1955, the Land Court granted special leave to appeal to the West African Court of Appeal (?" any party who is aggrieved by a decision of the Land Court exercising its original or any appellate jurisdiction, may appeal to the West African Court of Appeal in like manner and subject to the like conditions as if the appeal were an appeal to the West African Court of Appeal from a Divisional Court.?"-sec. 26 of the Courts Ordinance) The co-claimant appealed (Civ. App. No.69/58).

Judgement

JUDGMENT OF VAN LARE J.A.

Van Lare J.A. delivered the judgment of the Court:

We give our reasons for dismissing this appeal on the 3rd March, 1959.

The proceedings in this matter originated under, and are governed by, the Forests Ordinance. During the course of an enquiry into claims in connection with the Bimpong Forest Reserve certain disputes arose between the parties in this appeal as to the ownership of land lying within the proposed Reserve. On the 10th day of [p.139] March, 1954 the Reserve Settlement Commissioner, acting under section 9(2) of the Ordinance, referred certain issues to the Native Court of the Denkyire Confederacy Grade ?"A?" for determination. There could be no doubt that the decision of the Native Court was to be merely interlocutory, as its decision had to be otherwise implemented. The boundaries of the land found to be owned by the respective parties had to be delineated, and a survey had to be undertaken to enable a written description of the boundaries of each plot ascertained to be recorded, and to be produced and given in evidence at the Court of the Reserve Settlement Commissioner at the resumed enquiry. The Reserve Settlement Commissioner was enjoined by section 9(6) of the Ordinance to accept and adopt the judgment of the Native Court in his own judgment upon completion of the enquiry; and a right is given by section 16 to appeal from that decision directly to this Court.

Although the law provided that upon such reference it shall be deemed for all purposes to be a civil suit brought before such Native Court, and shall be tried and determined accordingly, nowhere in the Ordinance was provision made giving a right of appeal from a decision of the Native Court upon such reference. It is commonplace that no appeal lies as of right against the order of any court unless given by statute. Nevertheless the appellant in this Court, being aggrieved and dissatisfied with the decision of the Native Court, appealed to the Land Court, Cape Coast, which dismissed his appeal on the 30th December, 1954. It is against that judgment or order dismissing the appeal that the appellant obtained special leave to appeal to this Court.

With respect, the learned Judge of the Land Court, Cape Coast, erred twice, but on each occasion in favour of the appellant. Firstly, he failed to consider whether the appeal lay at all to his Court from the decision of the Native Court upon such reference; in our opinion it did not lie. Secondly, he granted special leave to appeal from his own decision, though from it no appeal lies in law to this Court.

Section 16 of the Forests Ordinance, as amended by No. 45 of 1954 on the 27th November 1954, provides as follows:-

?"Any person who has made a claim under section 7, 9 or 14 of this Ordinance, and the Chief Conservator of Forests, may within six months from the date of judgment delivered by the Reserve Settlement Commissioner under the provision of section 15 of this Ordinance appeal from such judgment to the West African Court of Appeal and such appeal may relate to such part of the judgment as was incorporated therein under the provisions of sub-section (2) or (4) of section 9 of this Ordinance.?" [p.140]

It is obvious that the law does not contemplate any intermediate appeal to the Land Court on any issue that may be incorporated in the judgment of the Reserve Settlement Commissioner, from whose Court appeal lies straight to the Court of Appeal. In our view, therefore, the judgment appeal from is a nullity, and the decision of the Native Court remains unaffected.

Be that as it may, even if we were to treat the Land Court?'s decision as within its jurisdiction, an appeal could lie to this Court only under section 4 of the Court of Appeal Ordinance, 1957. Upon the authorities, such as Shippi anor. v. Adjin (12 W.A.C.A. 472); Dompreh v. Marfo (12 W.A.C.A. 349), the words in the section ?"where an appeal lies therefrom under any Ordinance?" are of the utmost significance in deciding whether an appeal lies to this Court from the decision of a Divisional or Land Court given on appeal from the decision of a Native Court in a civil case. It is well established law that the true construction of section 4 is that if an appeal is to lie to this Court from a decision of a Land Court in its appellate jurisdiction, as in this case, it must lie subject to the provisions of the section. As there is no provision in the Forests Ordinance for appeals to this Court from the decisions of the Land Court given in its appellate jurisdiction, by virtue of section 4 of the Court of Appeal Ordinance no appeal lies in this matter to this Court.

Decision

<P>We therefore dismissed the appeal as not properly before the Court.</P>

Plaintiff / Appellant

Mrs. Mark

Defendant / Respondent

Swanzy

Referals

(1)  Shippi and anor. v. Adjin (2 W.A.C.A. 472);

(2)  Dompreh v. Marfo (12 W.A.C.A.349).

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