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KWAO KUM, ETC.
V.
THE CHIEF CONSERVATOR OF FORESTS
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
11TH DAY OF FEBRUARY, 1954
LEX (1954) – XIV WACA 435-437
OTHER CITATION(S)
2PLR/1954/58 (WACA)
(1954) XIV WACA PP. 435-437
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
WINDSOR-AUBREY, J.
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BETWEEN:
IN THE MATTER OF THE PROPOSED ESEN-EPAM (BLOCK WEST) FOREST RESERVE
AND
IN THE MATTER OF KWAO KUM, SUCCESSOR OF JOSEPH ANKRAH FOR HIMSELF AND ON BEHALF OF JOSEPH ANKRAH’s COMPANY OF FARMERS – Appellant
AND
THE CHIEF CONSERVATOR OF FORESTS – Respondent
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ORIGINATING COURT(S)
Appeal by claimant: No. 92/53.
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REPRESENTATION
Bossman — for Appellant
Battcock, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ENVIRONMENTAL AND NATURAL RESOURCES LAW:- The Forests Ordinance (Cap. 122) of the Gold Coast, sections 7, 9(1) and 13 – Proposed Forest Reserve – Enquiry into claims – Division of Proposed Reserve into parts for enquiry – Time for making claims – Separate judgment on a part of Reserve – Claim put in after judgment — Finality of separate judgment
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CASE SUMMARY
It being proposed to constitute a Forest Reserve, the Reserve Settlement Commissioner published a notice under section 7 of the time within which claims to land should be made, and later began his enquiry, for the purposes of which he divided the proposed Reserve into two parts. After he delivered judgment on one part, he was notified of a claim relating to that part and ruled that the claim could not be entertained; and the claimant appealed.
Section 9 (1) enables the Commissioner to “divide the proposed Forest Reserve into … portions … and make a separate enquiry and determination … “; and section 13 provides for the extinction of rights not claimed within the time notified unless the Commissioner allows the claim to be made before judgment.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
Once the Commissioner has delivered judgment on a portion the enquiry is concluded as regards that portion and no claim relating to it can be entertained.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
This is an appeal against a judgment of Arthur Philip Pullen, Esq., Reserve Settlement Commissioner, given in an Enquiry held under the provisions of The Forests Ordinance (Cap. 122). The enquiry was held as a result of the publication in the Gazette of the Governor’s proposal to constitute the Esen-Epam Forest Reserve. The notice is dated 11th June, 1936, and was published in the Gazette as Notice No. 38 of 1936. The Reserve Settlement Commissioner then took the action required by section 7 of the Ordinance and fixed a period of three months from the 15th September, 1936, within which any person or native community claiming any right affecting the land or rights over the land which it was proposed to constitute a Forest Reserve should send in a written statement of his or their claim to the Reserve Settlement Commissioner or appear before him and state orally the nature and extent of his or their alleged rights. Section 7 of the Ordinance has since then been amended by section 6 of Ordinance No. 21 of 1949, extending the period within which claims should be submitted or made from “not less than three months” to “not less than six months”, but the period given at the time was in conformity with the provisions of the Ordinance.
The Commissioner commenced his enquiry on the 25th September, 1951, and for the purpose of such enquiry he divided the proposed Forest Reserve into two parts, namely Block East, in connection with which there were, at that time, no disputes as to ownership of land, and Block West, in connection with which there were disputed claims which he referred to the Akim Native Court “B” for determination. The order making the reference is dated 13th December, 1951.
The Commissioner then completed his enquiry as to Block East and delivered his judgment on that enquiry on the 12th February, 1952.
The land we are concerned with on this appeal is situate in Block East.
The appellant’s claim to ownership of an area of land in Block East was first brought to the Commissioner’s notice on the 29th August, 1952, by an undated letter written by the appellant which was forwarded to the Commissioner by Mr. Jack, Assistant Conservator of Forests.
The enquiry on Block West was resumed by the Commissioner on the 4th September, 1952, and during the course of that enquiry he ruled that the enquiry on Block East having been closed, and judgment delivered, he could not entertain the appellant’s claim to ownership of land in that area.
Mr. Bossman, on behalf of the appellant, submitted that an enquiry continues until the Commissioner has given a decision on the whole area comprised in the proposed Forest Reserve, that a decision on a portion of such area does not finalise the matter, and that the Commissioner erred in ruling that he could not entertain the appellant’s claim. He contended that the Commissioner was required to enquire into the appellant’s claim by the provisions of the last sentence of sub-section (1) of section 9 of the Ordinance, as amended by section 8 of Ordinance No. 21 of 1949. The sub-section reads as follows:-
“Save as is otherwise provided in this section, the Reserve Settlement Commissioner shall enquire into and determine the existence, nature and extent of the rights in respect of which he has received any claim under section 7 of this Ordinance, and for the purpose of such enquiry he may divide the proposed Forest Reserve into as many portions of land as he may deem expedient and make a separate enquiry and determination in respect of each such portion. If in the course of any enquiry any other rights affecting the proposed Forest Reserve are alleged to exist or are brought to his notice, the Reserve Settlement Commissioner shall enquire into and determine their existence, nature and extent.”
The sub-section empowers the Reserve Settlement Commissioner, for the purpose of his enquiry, to divide the proposed Forest Reserve into as many portions as he may deem expedient and to make a separate enquiry and determination in respect of each portion, and in my view once the Commissioner has closed his enquiry in respect of any portion and delivered judgment thereon the enquiry must be held to be concluded as regards that portion.
It seems to me that the words “separate enquiry and determination” mean what they would ordinarily imply, that determination means judgment, and if I am right in this conclusion section 13 of the Ordinance, which reads:-
“Every right in or over any land in respect of which no claim has been made under section 7, or of which no knowledge has been acquired at any enquiry, shall be extinguished, unless the claimant shall have satisfied the Reserve Settlement Commissioner before the delivery of his judgment that he had good reason for not preferring his claim within the period fixed under section 7; in which event the Reserve Settlement Commissioner may defer his judgment until he has decided such claim concludes the matter.”
It follows that, in my opinion, the ruling of the Commissioner ought to be upheld. I would accordingly dismiss this appeal with costs fixed at £18 19s. 0d.
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COUSSEY, J. A.
I concur.
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WINDSOR-AUBREY, J.
I concur.
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Appeal dismissed.
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