Division: IN THE COURT OF APPEAL
Date: 23RD MARCH, 1959
Before: KORSAH C.J., VAN LARE J.A. AND OLLENNU J.
ARGUMENT OF COUNSEL
Mrs. Mark for appellant argued the native court decision on its merits, and thereafter submitted that the Forests (Amendment) Ordinance, 1954 did not come into force till the 27th November, 1954. Prior to that date there was a right of appeal to the Land Court.
Swanzy for respondent not called on to argue.
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] of [1959] GLR 137
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] of [1959] GLR 137
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
We therefore dismissed the appeal as not properly before the Court.
