Michael Anarfi & Ors. V. The Conservator of Forests (1938)
LawGlobal Hub Judgment Report – West African Court of Appeal
Reserve constituted under the Forests Ordinance—Claims for assessment of lump sum amounts for commutation of rights rejected by Reserve Settlement Commissioner—On appeal, claims remitted for assessments to be made—Claims heard by different Commissioner and so-called judgment upon them delivered without prior submisison to Governor for approval or rejection.
Held : (1) Judgment of Appeal Court remitting claims had the effect of setting aside in tote the original judgment of the Reserve Settlement Commissioner.
(2) The Governor’s decision upon the assessment being a condition preoedent to the delivery of another final judgment, the so-called judgment upon the claims is no judgment at all, and there is therefore no final judgment extant against which an appeal lies. Appeals struck out.
Obiter dictum: It is prudent either that the original Commissioner should decide the question of lump sum assessments, or, if a different Commissioner is appointed, that he should re-hear the whole matter.
The facts are sufficiently set out in the judgment.
Wei Awere for first Claimants-Appellants.
- H. Coussey for second Claimant-Appellant.
- A. Bowman for third and fourth Claimants-Appellants. T. A. Brown, Crown Counsel, for the Conservator of Forests. The following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND WEBB, C.J., SIERRA LEONE.
As a preliminary it should be mentioned that throughout this judgment the references to the Forests Ordinance are to that Ordinance as it stood prior to 1938.
the Gazette of the 19th October, 1935, Gazette Notice No.
Anarfi826 was published notifying that the Governor proposed to
ors.
constitute the Auro River Forest Reserve and appointing William
P‘
Hugh Beeton to be Reserve Settlement Commissioner.
The
Conner-Mr. Beeton duly conducted the inquiry and on the 2nd
vator ofMarch, 1936, delivered his judgment and by Order dated 18th
Forests.July, 1936, issued under section 15, the area was duly constituted
a forest reserve.
Kingdon,
C.J.,The four present claimants-appellants were claimants before
Petrides,him and he did not exercise in their favour the power vested in him
C.J.,under section 11 (1) of the Forests Ordinance (Cap. 63) to assess
andlump sum amounts for the commutation of their respective rights.
Webb, C.J.
They all appealed to this Court against the judgment and on the 17th December, 1936, this Court gave the following judgment :—
” All parties and the Court being agreed that in this ease ” the Reserve Settlement Commissioner should have exercised ” his powers under section 11 (1) of the Forests Ordinance in ” favour of the claimants, the appeals are allowed and it is ” ordered that the claims be remitted to the Reserve Settle” ment Commissioner for him to do so. ‘ It is ordered that ” the fees paid by the claimants in respect of these proceedings
be refunded to them.”
In pursuance of that judgment Mr. Beeton sat and heard argument; after several adjournments he adjourned the inquiry on the 3rd September,. 1937, until the 24th September, 1937. Before that date, namely by Gazette Notice No. 983 dated the 16th September, 1937 and published in Gazette of 18th September, 1937, the Governor in exercise of the powers vested in him by section 5 (2) of the Ordinance appointed Henry Christopher Ellershaw ” to act in succession to the said William Hugh Beeton.”
In pursuance of that appointment Mr. Ellershaw sat on the 24th September, 1937 and on subsequent dates. The submission was immediately made to him that, inasmuch as this Court had remitted the claims to the Reserve Settlement Commissioner and not to the Court, it was only Mr. Beeton who could deal with the matter, or alternatively that if a new man were appointed it would be necessary to hear all the evidence again and visit the land. This submission was overruled and the claimants thereupon took no further part in the proceedings. Mr. Ellershaw proceeded to hear evidence and on the 18th November, 1937, delivered a so-called judgment assessing the respective lump sums payable for the commutation of the claimants’ rights.
Those assessments, so we are informed by counsel on behalf of the Conservator of Forests, have not been submitted to th,, Governor for his approval or rejection under section 11 (1) of th,
Ordinance, and no other judgment on the whole enquiry has been Michael delivered. But the four claimants and the Conservator of Forests Am”
have appealed to this Court against the assessments.& ors.
v.
We think that these appeals are premature for the following The reasons :—Coneer-
First of all we do not agree with the suggestion which has vator of been made that these appeals are merely a continuation of the F“este” appeals formerly brought against Mr. Beeton’s judgment. Those Kingdon, appeals were finally dealt with and allowed by the above-quoted C.J., judgment of this Court on the 17th December, 1936. Although Petrides, that judgment does not say so in so many words, we think that c.j., the effect of it was to set aside Mr. Beeton’s judgment in toto, and
necessitating the delivery, in due course, of another complete Webb, C.J. judgment under section 13 of the Ordinance. The reason for this
is that the order for lump sum assessments puts the enquiry back into an unfinished state. In order to finish it not only have the assessments to be made but the Governor’s decision whether to approve or reject them has to be sought and obtained; and the final judgment will vary in accordance with the Governor’s decision. The position at present is that Mr. Ellershaw has made the assessments, but the Governor’s decison thereon has not been obtained nor has a final judgment been delivered upon completion of the enquiry under section 13 of the Ordinance. Mr. Ellershaw’s so-called judgment is therefore in reality no judgment aj all and inoperative until it is finally incorporated in a final judgment under section 13. As it is only against such a final judgment that an appeal lies to this Court under section 14, it follows that these appeals are not properly before the Court and must be struck out. Before striking them out, however, there is one point which may usefully be mentioned. We have heard argument at length as to whether the procedure followed by Mr. Ellershaw in merely hearing evidence and giving a decision to supplement the former judgment of Mr. Beeton was correct or whether he ought to have re-opened and re-heard the whole enquiry. In view of our decision that the appeals are not properly before us, we are not called upon at present to give a definite decision upon this point and any opinion which we may express can only be by way of obiter dictum. But since Mr. Beeton’s judgment no longer stands, a new complete judgment must be delivered by someone upon the whole case when the enquiry is completed, and the question arises—who will be in a position to deliver such a judgment? Mr. Ellershaw unfortunately has died; there remains either Mr. Beeton or an entirely different Commissioner whoever may be appointed. Now whilst we are not prepared to go so far as to say that there can never be a case one portion of which might not be heard and determined by one person and another by another person, we incline to the view that the provisions of section 5 (2) of the Ordinance are not such as to override the fundamental principle that, except by consent of all parties, a man cannot give
judgment in a case which he has not heard. It follows that it will be prudent either that Mr. Beeton should be re-appointed and should himself enquire into and come to his own conclusion upon the question of lump sum assessments or that if a different Commissioner is appointed he should re-hear the whole matter.
The appeals are struck out and it is ordered that the fees paid by all the appellants in respect of their appeals be refunded to them.
