ABABIO II AND ANOTHER vs. AKRO & CO., AND OTHERS RE PROPOSED BIMPONG FOREST RESERVE (TWIFU PORTION [1963]DLSC1822

ABABIO II AND ANOTHER vs. AKRO & CO., AND OTHERS RE PROPOSED BIMPONG FOREST RE... [1963]DLSC1822

Date	1963-02-27
Suit No.
Citation No.	[1963]DLSC1822

VAN LARE JSC

MILLS-ODOI JSC

OLLENNU JSC

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.

[1963]DLSC1822
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ABABIO II AND ANOTHER

[SUPREME COURT]

[1963] 1 GLR 1963

DATE: 27TH FEBRUARY, 1963.

</div>

COUNSEL:&nbsp;&nbsp;

<a name="_gjdgxs"></a>R. J. HAYFRON-BENJAMIN, SNR., FOR THE FIRST APPELLANT.

B.
J. DA ROCHA FOR THE SECOND APPELLANT.

D.
F. ANNAN, SENIOR STATE ATTORNEY, FOR THE CHIEF CONSERVATOR OF FORESTS.

</div>

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

</div>

&nbsp;

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 &amp; Co., on the grounds that the
whole of the area they claimed in the reserve is comprised within the area
claimed by Kwesi Akro &amp; Co., and N. K. Asamoah &amp; 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 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 &amp; 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 &amp; 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.