ABABIO II AND ANOTHER v. AKRO & CO., AND OTHERS RE PROPOSED BIMPONG FOREST RESERVE (TWIFU PORTION) [1963] 1 GLR 195

DIVISION: IN THE SUPREME COURT

DATE: 27TH FEBRUARY, 1963

BEFORE: VAN LARE, MILLS-ODOI AND OLLENNU JJ.S.C

NATURE OF PROCEEDINGS

APPEAL from a judgment of the Reserve Settlement Commissioner delivered on the 11th November, 1959, upon his appointment under section 5 (1) (c) of the Forests Ordinance Cap. 157 (1951 Rev.). Each of the appellants, two of the claimants in the enquiry, in exercise of the right of appeal provided in section 16 of the said Ordinance, filed notice of appeal to the court. Erroneously thinking that the notice of appeal filed by each constituted separate appeal proceedings, the registrar of the Court of the Reserve Settlement Commissioner had two different sets of the one and the same proceedings before his court compiled and forwarded them to the Supreme Court as if there were two separate appeals. Upon the [p.196] of [1963] 1 GLR 195 matter coming before the Supreme Court the error was discovered and rectified, and the appeal was accordingly renumbered as single appeal No. 45–46/1962. The facts are fully set out in the judgment.

COUNSEL

R. J. Hayfron-Benjamin, Snr., for the first appellant.

B. J. da Rocha for the second appellant.

Olaga for the first respondent.

Ampofo for the second respondent.

D. F. Annan, Senior State Attorney, for the Chief Conservator of Forests.

JUDGMENT OF OLLENNU J.S.C

Ollennu J.S.C. delivered the judgment of the court. The proceedings in the Court of the Reserve Settlement Commissioner have had a very chequered and unfortunate career. It commenced with Gazette Notice published on the 4th November, 1937, given under section 5 of the Forests Ordinance,1 constituting the forest reserve, and appointed Mr. H. C. Ellershaw, Reserve Settlement Commissioner to hold the enquiry. For some reason or the other not disclosed, Mr. Ellershaw did not start the enquiry; he was later replaced by Mr. Sutherland as by notice in Gazette No. 35 of 1939; Mr. Sutherland too was replaced by Mr. Pullen as by notice No. 618 published in Gazette No. 31 of 1951. Mr. Pullen opened the enquiry on January 20, 1953, but did not complete it, and by notice No. 742, published in Gazette No. 21 of March 12, 1955, Mr. P. M. Riley was appointed in his place; it was he who concluded the enquiry. It appearing at the early stages of the enquiry before him that the claims made by the parties conflicted, and therefore raised a dispute of ownership of land within the proposed forest reserve, Mr. Pullen, by order dated the 10th March, 1954, made under section 9 (2) of the Ordinance, referred the said dispute to the Denkyira Confederacy Grade “A” Native Court which was the appropriate native court. In the said order the commissioner directed the native court, in addition to determining the ownership, to determine also the price paid by each of the purchaser-claimants for the portion of land which the native court might find to be theirs and that as soon as they had given their decision on the matters referred, and upon prior notice to the forestry officer, Cape Coast, to have the respective areas awarded to the parties or any of them, demarcated in the reserve in their presence.

Pursuant to the said order of the commissioner, the native court heard the case, and in their judgment delivered on the 2nd July, 1954, found against the second appellants, Atua Kwadjo & Co., on the grounds that the whole of the area they claimed in the reserve is comprised within the area claimed by Kwesi Akro & Co., and N. K. Asamoah & Co., and that since the grant the said second appellants relied upon to sustain their claim was made two years subsequent to the grants relied upon by the other two groups of claimants, their, i.e. the second appellants’, said [p.197] of [1963] 1 GLR 195 grant is null and void, their grantor, the Morkwa stool, having by the two earlier grants divested themselves of the whole of the said area.After taking evidence in the case, but before delivering judgment, the native court, at the request of Nana Kwesi Kenin Ababio II, the first appellant, made an order for inspection of the land, and ordered the parties to deposit certain fees for that purpose. Atua Kwadjo and his company were the only people who made the deposit as directed by the native court—none of the others paid any deposit; therefore the native court had to deliver the judgment without inspecting the land.

The respective areas claimed by the parties were delineated on a plan tendered as part of the proceedings before the native court, and marked exhibit K. Examination of that plan makes it abundantly clear that there is a large area of land claimed by Atua Kwadjo & Co., in the reserve which was not claimed by any of the other two purchaser-claimants. This fact completely shattered the findings made by the native court that the whole of the land claimed by Atua Kwadjo & Co., is entirely comprised in the land claimed by the other two claimants together.

Again, the native court, after giving their decision in the matter, failed to have the respective areas demarcated in their presence as they had been directed to do in the order of reference made by the commissioner.

Dissatisfied with the decision of the native court, Atua Kwadjo & Co., appealed to the Land Court, Cape Coast. Their said appeal was however dismissed; they then appealed to the Ghana Court of Appeal which dismissed the same as not being properly before the court on two grounds: (1) that there was no right provided under the Forests Ordinance or under any other ordinance to appeal from a decision of a native court exercising jurisdiction under section 9 (2) of the Forests Ordinance, to the Divisional Court (Land Court); and (2) there was no provision in the Forests Ordinance, or the Court of Appeal Ordinance2for appeals from the decision of the Divisional Court (Land Court) in forest reserve enquiries to the Court of Appeal. Proceedings taken in a native court (local court) in pursuance of reference made to it by a Reserve Settlement Commissioner, form part of the proceedings before the Reserve Settlement Commissioner. The provisions of section 16 of the Ordinance are the only provisions in the Ordinance which give a right of appeal, and that right is to appeal only against a judgment given by the commissioner finally determining the whole of the proceedings before his court.

The reasons for the judgment of the Court of Appeal were given on the 23rd March, 1959, and the enquiry was resumed on the 6th August, 1959. At that date Mr. Peter Myles Riley had been appointed, by virtue of powers vested in the Governor-General by section 5 (2) of the Ordinance, to succeed to Mr. Pullen who had retired. Mr. Riley continued the enquiry where Mr. Pullen had left off, he did not start de novo, and delivered the judgment from which this appeal has been taken.

[p.198] of [1963] 1 GLR 195

The proceedings before the native court upon reference made to it under section 9 (2) of the Forests Ordinance, are part of the proceedings before the commissioner, and therefore unless anyone who was a claimant at the institution of the enquiry voluntarily withdraws his claim, each claimant remains a party to the enquiry until the final determination of the proceedings before the commissioner’s court. Upon the resumption of the enquiry, Mr. Riley, finding that the order made by Mr. Pullen that areas which the native court would find the parties or any of them to be entitled to should be demarcated in the reserve had not been carried out by the native court, made the following order:

“BY COURT: The enquiry is now adjourned so that the delineation of the boundaries as ordered by the Denkyira Confederacy Native Court ‘A’ on 23rd July, 1954, and which delineation has not yet been effected, should be carried out according to the court’s order.

The survey will be undertaken by the Forestry Department in the presence of the alienation claimants, i.e. the representatives of the Kwesi Akro and N. K. Asamoah Companies also the Ohene of Morkwa and Odikro of Pewudie. At least one member of the bench which gave the native court judgment is to be present and he is to indicate the boundaries which the court awarded. At the next sitting of this enquiry a plan is to be produced which will show the boundaries as surveyed for each of the two alienation claimants. A description of the boundaries is also to be given and the site of the fetish Bepo Ben marked.” In compliance with that order two of the members of the said native court, the third having died, attended the survey but were unable to point out to the surveyor any area they had awarded to any party by their decision. Giving reasons for their said inability to point out any area, one of them, Chief Kyei Barfuo, gave evidence as follows:

“I am one of the three chiefs who gave the judgment in the Denkyira Native Court ‘A’ in 1954, one of the members is dead, i.e. Yaw Agyaben, but the other Yaw Amoah is here today. We decided that the Kwesi Akro Company and Asamoah Company had land in the reserve but that the Atua Kwadjo Company had no land in the reserve. xxd. BY COURT: We did not inspect the land but the parties produced plans. I could not read these plans neither could the other members. The court registrar told us the description of the boundaries as shown on the plans and we gave our judgment according to those descriptions. Yes the descriptions that we gave of the boundaries are the same as those just given by the forestry officer.”

Another of the members of the native court, Chief Yaw Amoah, also said in his evidence “I agree with all the last witness has said about the case judgment, and boundary descriptions and have nothing to add.” The legal effect of this will be discussed presently.

Counsel for both appellants drew our attention to the proceedings at the enquiry before Mr. Riley, and pointed out that from the moment he (Mr. Riley) took up the enquiry to the close of it, the said commissioner

[p.199] of [1963] 1 GLR 195 treated the appellants Atua Kwadjo & Co., as having ceased to be parties to the enquiry, and although their representative attended the enquiry, he was not given the opportunity to take any part in it; for example, the commissioner called each of the other claimants to give evidence on their behalf, and made each of them to call witnesses and to cross-examine other claimants and their witnesses, but denied Atua Kwadjo & Co., that right. Again in his order for demarcation of the areas quoted above, he also excluded Atua Kwadjo & Co. Counsel for all the respondents conceded those glaring facts.

What is the legal effect of this? Since Mr. Riley did not begin the enquiry, but was appointed under section 5 (2) in substitution for Mr. Pullen who had started it, his jurisdiction to continue it depended entirely upon the consent of the parties as provided in the said subsection (2) of section 5 which is as follows:

“Where the Reserve Settlement Commissioner has, prior to such appointment, begun to hold, but has not completed, an enquiry under the provisions of section 9 of this Ordinance, the person appointed to act on his behalf or in succession to him shall not be obliged to begin the enquiry de novo but may, if he so thinks fit, and with the consent of all the parties thereto, continue and complete the enquiry so begun but not completed.”

Without that consent he is void of jurisdiction, and he should not have continued the enquiry. Where jurisdiction is to be conferred by consent, such consent should be express, precise and unambiguous; it must not be presumed.

In this case the commissioner merely noted that be could continue where Mr. Pullen left off, provided there was no objection. He said: “Mr. Pullen has now retired and by notice 742 published in Gazette 21 of 12th March, 1955, I was appointed Reserve Settlement Commissioner in his place and I propose, provided there is no objection, not to start proceedings de novo but to continue the Enquiry started by Mr. Pullen. This action is provided for by section 5 (2) of Cap. 157.”

In the first place the commissioner misdirected himself when he said that he could continue the enquiry provided there is no objection. The Ordinance says “with the consent of all the parties,” which we interpret to be the express, not presumed, consent of each of the parties before the court. Now the record of proceedings shows that the commissioner did not obtain the consent of any of the parties; there is nothing to show that he even read out to them the notes he made as to his presumption that he could continue if no objection was raised. He appears to have assumed that if no objection was raised he became vested with jurisdiction. But even if tacit and not express, consent is what is required, jurisdiction under the subsection could not be conferred by some only of the parties; it could only be conferred, in the language of the subsection, by the consent of all the parties. Definitely the proceedings disclose that the commissioner did not think that the consent, tacit or express, of Atua Kwadjo & Co., was [p.200] of [1963] 1 GLR 195 necessary to give him jurisdiction, hence he ruled them out of the proceedings.

Therefore since one at least, indeed all the parties, did not give consent to Mr. Riley continuing the enquiry from where Mr. Pullen had left off, the whole of the proceedings before him are null and void as without jurisdiction. There is one other important matter. In addition to drawing the court’s attention to the absence of jurisdiction in the commissioner as aforesaid, counsel for the appellants Atua Kwadjo & Co., argued the following ground of appeal: “That the Reserve Settlement Commissioner having found that the Denkyira Native Court ‘A’ ‘had simply given their judgment according to what the registrar of their court told them,’ should have held that the said judgment of the native court is not a judgment which he should have accepted and adopted.” We agree that section 9 (6) now repealed and replaced which says:

“The Reserve Settlement Commissioner shall accept and adopt the judgment of the Native Court or the Supreme Court, as the case may be, 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 under section 15 of this Ordinance” makes it obligatory upon the Reserve Settlement Commissioner to “accept and adopt” the judgment given by a native court to whom he had referred a dispute in compliance with section 5 (2) of the Ordinance. But we are of the opinion that the term “judgment” must be interpreted to mean judgment given in due exercise of jurisdiction, not a judgment which is a nullity, void ab initio.

The duty of the court is to decide a case upon the evidence before it, not upon any extra judicial information it may receive. Again, a court has to base its judgment upon its own conviction formed from the facts proved in evidence before it; it should not be influenced by any outsider or outside information. Any judgment given based upon extra judicial information or knowledge acquired by the court outside the court, is null and void; so is a judgment which is influenced by someone who is not a member of the court, for example, a clerk of the court.

Applying this principle to this case we say that upon their own confession, the members of the native court did not form their own opinion on the facts proved before them. They merely acted upon information given to them by the registrar of the court that the whole of the area claimed by Atua Kwadjo & Co., is covered by the areas claimed together by the two other purchaser-claimants; and since as shown by the plan exhibit K they were completely misled by the said registrar in that regard, and since that fact was made known to the Reserve Settlement Commissioner, he, the said commissioner, should have held that the alleged judgment is no judgment at all, and therefore that he was under no legal obligation to accept and adopt it; at that stage the commissioner should [p.201] of [1963] 1 GLR 195 have referred the dispute as to ownership back to the native court particularly as he himself said that he found the judgment unsatisfactory. That alleged judgment of the native court being itself null and void, the judgment of the commissioner based upon it by virtue of section 9 (6), cannot be allowed to stand. For these reasons we allow the appeal, set aside the whole of the proceeding before the Reserve Settlement Commissioner, including the judgment of the Denkyira Confederacy Native Court, and remit the matter to the Court of the Reserve Settlement Commissioner for the enquiry to be re-opened de novo.

DECISION

Appeal allowed.

J. D.