Concession enquiry-Opposition to
grant of a Certificate of
ValidityBreach of covenant
between grantors and opposers-Breach
of contract of service between
claimant and opposers-Section
12 (3) of Concessions
Ordinance-Litigation in the Gold
Coast and in England arising out
of the same facts and
circumstances.
At the Enquiry held under
section 6 of the Concessions
Ordinance into the validity of
this concession the African
Selection Trust Limited applied
to be made a party to the
Enquiry for the purpose of
opposing the grant of a
certificate of validity. Their
application was successful, and
they filed the following grounds
of opposition :-
•• 1. The concession the subject
of this enquiry was obtained by
improper means in that the
claimant, whilst under agreement
to serve the opposers only and
in breach of the said agreement
and utilising for his own
benefit confidential information
of the opposers' business,
negotiated and obtained an
option for the same.
2. The said concession was
obtained by improper means in
that to the claimant's knowledge
the grantors thereof had
previously and for valuable
consideration covenanted with
the opposers not to grant
concessions over the area
comprising the said concession
without first offering such
concessions to the opposers, and
the claimant procured the breach
of the said covenant in that to
his knowledge no offer was made
to the opposers as required
thereby.
3. The said concession is
otherwise invalid."
The first two grounds of
opposition were based on section
12 (3) of the Concessions
Ordinance which reads as follows
:-No concession shall be
certified as valid if obtained
by fraudulent or improper
means"; the third ground of
opposition was never seriously
argued It was common ground that
Mr. Came had been an employee of
the Selection Trust in Akyem
Abuakwa under a written contract
of service, and that he made
contact with the Odikro of
Topiramang during his period of
service. He denied, however,
that he had committed any breach
of his contract of service.
After a lengthy enquiry before
Michelin,
J. the Court below held as
follows :-
1. That the persons to be
protected against" the
fraudulent and improper means"
mentioned in section 12 (3) of
the Concessions Ordinance are
the native chiefs granting the
concession and not third
parties, and
2. That the covenant which had
been broken by the grantors on
the alleged procurement of Mr.
Came was void as infringing the
rule against perpetuities.
On these findings the Court
below decreed the issue of a
Certificate of Validity, but
suggested that the Selection
Trust might have a remedy
against Mr. Came for the alleged
breach of his contract of
service with them elsewhere.
The
Selection Trust thereupon not
only appealed against this
decision but also commenced an
action against Mr. Came in
England in which they claimed
(inter alia) :-
(a)
A declaration that Mr. Came was
a trustee for them of this
concession.
(b)
An injunction to restrain him
from dealing with it save as
directed by them.
(e)
An account of all profits he
might have made by reason of his
having obtained the concession.
(d)
Damages for his having
wrongfully procured the grantors
to break their covenant with
them.
(e)
Alternatively, damages for
breach of his contract of
service with them.
The English Court of Appeal
eventually decided, by a
majority, that Mr. Came had
obtained this concession in part
by acts which were breaches of
his contract of service with the
Selection Trust and ordered an
enquiry as to damages before an
official referee. But all the
other claims put forward by the
Selection Trust failed. the
English Court of Appeal holding
that Mr. Came had neither actual
nor constructive notice of the
grantor's covenant with the
Selection Trust and did not
procure its breach. The validity
of the covenant itself was
discussed by Scrutton, L.J. who
came to the conclusion that it
did not infringe the rule
against perpetuities but was
void for uncertainty. Slener.
L.J. on the other hand treated
it as valid apd Greer, L.]. did
not deal with it in the course
of his judgment.
The appeal against Michelin,
J's. decision to grant a
Certificate of Validity came on
for hearing in the West African
Court of Appeal more than a year
after the English Court of
Appeal's judgment, and it was
unanimously held in the West
African Court of Appeal as
follows :-
1. That the" fraudulent and
improper means" mentioned in
section 12 (3) of the
Concessions Ordinance must be
construed as, and confined to,
such means when used against the
grantors,
2. That decisions of the English
Court of appeal upon the same
issues and between the same
parties are binding on the West
African Court of Appeal, and
therefore the second ground of
opposition, which alleged that
Mr. Came had procured the
grantors to break their covenant
with the Selection Trust, must
fail.
Per Deane, C.]. (I) Since the
Selection Trust were neither
natives nor competing
concessionaires the Court below
might properly have refused to
hear them at the Enquiry.
(2) As the Selection Trust had
obtained judgment in their
favour in the English Court of
Appeal, they could not ask the
West Atrican Court of Appeal to
give them additional relief in
respect of the same course of
action.
(3) Even if Mr. Came had
procured the grantors to break
their covenant with the
Selection Trust and grant him
this concession, that would not
in itself be any sufficient
ground for refusing to grant a
Certificate of Validity.
Per Aitkin ]. nothing has
occurred in these proceedings or
in the allied litigation in
England to felter the judgment
of the West African Court of
Appeal should it ever be called
upon to pronounce a decision on
the covenant relied on by the
Selection Trust in their second
ground of opposition.
In the result the decision of
the Court below granting a
Certificate of Validity
was unanimously affirmed.
G. Kingsford
and P. A. Renner for the
Opposers-Appellants.
J. Henley Coussey
and E. C. Quist
for the Grantors-Respondents.
K. Quartey Papafio for
the Claimant-Respondent.
The following judgments were
delivered :-
AITKIN, J .
This is, an appeal by the
African Selection Trust Limited
(now the Consolidated African
Selection Trust Ltd.) from a
judgment of the Eastern Province
Divisional Court of the Supreme
Court delivered by Mr. Justice
W. P. Michelin on the 2nd of
July, 1928, dismissing their
opposition to the grant of a
Certificate of Validity in
respect of a diamond mining
Concession known as the Amaw
Tributaries Concession Zone 1,
which was claimed by a Mr.
Richard Raymont Came.
This concession, which covers
some two square miles of
diamondiferous land at a place
in the Eastern Province of this
Native
Colony called Topiramang, is
dated the 15th of November,
1926, and consists of an
Indenture of Lease whereby the
land in question is demised to
the claimant for a term of 99
years by Nana Sir Ofori Atta,
the Omanhene of Akyem Abuakwa,
and Kofi Dakwa, the odokro of
Topiramang acting for themselves
and as representatives of the
elders and people of their
respective stools. It is quite
Aitkin,
J. unnecessary to set out the
terms and conditions of this
concession
as the grantors have expressed
themselves as satisfied with
them, and no objection has been
raised to any of them. They
appear to be reasonable and to
afford adequate protection to
the native owners and occupiers
of the demised area. The
consideration is also
substantial and satisfactory to
the grantors.
This concession was duly
registered in the Gold Coast
Land Registry on the 23rd of
December, 1926, and then the
usual steps were taken under the
Concessions Ordinance (now Cap.
27 of the Laws of this Colony)
to have it validated by the
Court. The provisions of section
11 of the Ordinance were duly
complied with, and the necessary
enquiry into its validity under
section 6 of the Ordinance was
set down for hearing at
Victoriaborg, Accra, on the 11th
of June, 1927. On the same day,
however, the Court was moved by
Counsel on behalf of the African
Selection Trust Ltd. for an
order that the said company be
made a party to the enquiry for
the purpose of opposing the
grant of a Certificate of
Validity, and on the 18th of
June, 1927, they were made a
party to the enquiry for that
purpose.
On the 23rd of June, 1927, the
African Selection Trust Limited
filed their grounds of
opposition which are as follows
:-
"1. The Concession the subject
of this enquiry was obtained by
improper means in that the
claimant, whilst under agreement
to serve the opposers only and
in breach of the said agreement
and utilising for his own
benefit confidential information
of the opposers' business
negotiated and obtained an
option for the same.
2. The said concession was
obtained by improper means in
that to the claimant's knowledge
the grantors thereof had
previously and for valuable
consideration covenanted with
the opposers not to grant
concessions over the area
comprising the said concession
without first offering such
concessions to the opposers, and
the claimant procured the breach
of the said covenant in that to
his knowledge no offer was made
to the opposers as required
thereby.
3. The said concession is
otherwise invalid."
No serious attempt has been made
to argue the third ground of
opposition either in this Court
or the Court below.
Now
the facts and circumstances out
of which this opposition arose
may be summarised as follows :-
By a written Agreement dated the
12th of August, 1924, the
African Selection Trust Limited
agreed to employ the claimant
Mr. R. R. Came, and he agreed to
serve them, as a mining engineer
and prospector in West Africa
for 12 months from the date of
his arrival in West Africa upon
certain terms and conditions.
Mr. Came is referred to in the
said agreement as " the
Engineer" and his employers as
"the Company," and the terms and
conditions material to our
purposes read as follows ;-
A. "The Engineer shall devote
the whole of his time, attention
and abilities to the discharge
of his duties and will not be
engaged or concerned directly or
indirectly in any manner
whatsoever in any mining or
prospecting work for any other
concern than the Company and
will be faithful to the Company
.... "
B. "The Engineer .... shall
devote the whole of his time and
attention to the service of the
Company or any Company or person
they may nominate and shall not
during the continuance of this
Agreement be interested either
directly or indirectly in any
business property or affairs ill
West Africa otherwise than for
and on behalf of the Company or
their nominees and shall well
and faithfully serve the Company
or their nominees and use his
be<;t endeavours to promote
their or his interests."
C. "The Engineer shall not
divulge or communicate to any
person or persons other than
officials of the Company or
their nominees any information
which he may receive or obtain
in relation to the business and
affairs of the Company or their
nominees."
At the date of this Agreement
the African Selection Trust
Limited were the holders of a
number of diamond mining
concessions in Akyem Abuakwa,
including one such concession
over a part of the Topiramang
Stool lands which immediately
adjoins the land comprised in
the claimant's concession.
This concession is known as the
Topiramang Blocks 1/3 Concession
and was granted to the African
Selection Trust Limited on the
22nd of January., by Nana Sir
Ofori Atta, the Omanhene of the
Paramount Stool of Akim Abuakwa,
with the advice and consent of
the Principal Elders and
Councillors of that Stool, and
by Kwasi Nyako, the then Odikro
of the Subordinate Stool of
Tnpiramang, with the advice and
consent of the Principal Elders
and Councillors of such Stool
acting for themselves and as
representatives of the people
of Topiramang. It is thus
apparent that both the African
Selection Trust's Topiramang
Blocks 1/3 Concession of the
23rd of January, 1923, and the
claimant's Amaw Tributaries Zone
1 Concession of the 15th of
November, 1926,
were granted by the Paramount
Stool of Akyem Abuakwa and the
Subordinate Stool of Topiramang
over two adjoining parts of the
Topiramang Stool lands.
Now the Afircan Selection
Trust's Topiramang Blocks 1/3
Concession, in respect of which
a Certificate of Validity was
issued on the 4th of June, 1926,
contains the following covenant
by the grantors (therein
referred to as "the lessors")
with the African Selection Trust
Limited (therein referred to as
" the leasee "):-
•• Not at any time during the
continuance of the term hereby
granted so long as the lessee
shall have observed all the
stipulations on his part herein
contained to demise or let any
mines or lands within the
boundaries of the said Stool of
Topiramang to any other person
or persons company or
corporation without previously
offering by notice in writing to
demise or let the same to the
lessee who shall have the option
of accepting the proposed demise
or letting at any time within
six months after the service of
such notice. If such option
shall be exercised the lessors
shall within six months of such
exercise execute a lease of the
said mines or lands to the
lessee on the same terms and
conditions as are herein
contained. If such option shall
not be exercised the lessors
shall be at liberty to demise
the aforesaid lands to any other
party, provided that such demise
or letting shall not be on more
favourable terms than the term~
for the same offered to the
lessee."
Rebus sic stantibus
the claimant arrived at Accra on
the 3rd of September, 1924, and
commenced his period of service
under his said Agreement with
the African Selection Trust
Limited. Next day he proceeded
to Akwatia, and after spending a
week there he went to Esuboni \vhere
he remained for the prospecting
work then going on in the
neighhourhood. In August and
September, 1925, shortly before
his period of service was clue
to terminate, the claimant
ohtained from Kofi Dakwa, the
then Odikro of Topiramang, and
some of his elders, two
documents dated respectively the
25th of August, 1925, and the
2nd of September, 1925, whereby,
in effect, the Odikro and his
elders purported to agree to
grant the claimant " prospecting
rights for diamonds or any other
minerals" in the Topiramang
Stoolland'i for a period of one
year from the day on which the
claimant should return from
England to the said lands, and
should he desire to take any
concession or concessions from
such stool lands after
prospecting them, to give such
concession or concessions on the
following terms :-
1/2 share of profits to "
the Promoter,"
1/2 share of profits to R.
R. Came,
1/2 share of profits to Mr.
Morgan Anamoah, and
1/2 share of profits to
the Odikro.
Although there has been some
conflict of evidence as to how
these two documents came to be
obtained there can be no
reasonable doubt, at the present
stage of this and allied
litigation, (1) that the
initiative came from the
claimant. (2) that he procured
an interview with the Odikro
with a view to getting something
in the nature of a written
licence to prospect and option
to acquire a concession, (3)
that he " both passively and
actively" concealed what he was
doing from his employers whom he
knew would object, and (4) that
his action in obtaining these
two documents constituted a
serious breach of his Agreement
of Service.
The claimant left the Gold Coast
for England on the 12th of
September, 1925, with these two
documents and two similar
documents he had obtained about
the same time from the Odikro of
Aclonkrono in his possession.
He arrived in England on the
26th of September, 1925, on
which date his employment by the
African Selection Trust Limited
came to an end and wa~ not
renewed.
Legally all these documents
obtained by the claimant from
the Odikros of Topiramang and
Adonkrono in or about August and
September, 1925, were worthless,
but commercially, as we now
know, they proved to be of some
considerable value to the
claimant in that they enabled
him to raise £705 in London in
April, 1926, for the purpose of
proceeding to the Gold Coast and
negotiating concessions over the
Topiramang and Adonkrono Stool
lands. The claimant lost no time
in returning to the Gold Coast
where he arrived on the 12th of
Mav, 1926; and on the 7th of
Tune. 1926, he obtained an
Agreement from N ana Sir Ofori A
tta, t.he Omanhene of Akyem
Abuakwa, and the two Odikros of
Topiramang and Adonkrono,
whereby it was agreed (1) that
he should have fnll liberty to
enter the Topiramang and
Adonkrono Stool lands for the
purpose of prospecting for
diamonds and other precious
stones; (2) that if he should
decide to take a concession in
respect of any area or portion
of land prospected by him he
should pay a further sum of £100
to the Omanhene and each Odikro
; (3) that in the event of a
concession being taken up by the
claimant the consideration money
and rents should be the same as
were paid by the African
Selection Trust Limited in
respect of their concessions
over the same Stool lands; and
(4) that the Omanhene should
receive a royalty of 7
t per cent of the nett profits
of working any such concession.
As one result of this Agreement
the claimant, on the 15th day of
November, 1926, obtained his
concession over the Topiramang
Stool lands known as the Amaw
Tributaries Concession Zone 1
into the validity of which we
are now enquiring. It could not
be denied that the Omanhene of
Akyem Abuakwa and the Odikro of
Topiramang did not make any
previous offer of a concession
over the same lands to the
African Selection Trust Limited
in accordance with the covenant
in the latter's Topiramang
Blocks 1/3 Concession which I
have already set out at length.
It was denied, however, that the
claimant had any knowledge of
this covenant when he obtained
his Amaw Tributaries Concession
Zone 1, and it was also denied
that the Omanhene and the Odikro
disregarded it on his
inducement. It was further
denied that any improper means
had been used to obtain the Amaw
Tributaries Concession Zone 1.
Although the grounds of
opposition were filed as early
as the 23rd of June, 1927, the
enquiry made no substantial
progress until the
11th of May, 1928.
Then, after a very full and
lengthy enquiry, we have Mr.
Justice ~onc~ssion W. P.
Michelin's careful judgment of
the 2nd of July, 1928, N~:~~l
dismissing the opposition
with costs and ordering a survey
of the (Accra) land in question
with a view to the grant of a
Certificate of Validity. g~m~
Att A great part of the learned
Judge's judgment is taken up
with Af~i~lan a stating the
facts of the case and setting
out the arguments of learned
Selection Counsel engaged
therein, all of whom ranged over
a very wide field Trust Ltd.
of legal topics.
Aitkin, J.
From a careful perusal of that
judgment I cannot discover any
finding of fact that the
claimant's action in ohtaining
the documents dated respectively
the 25th of August, 1925, and
2nd of September, 1925, from the
Odikro of Topiramang, was a
breach of his Agreement of
Service with the African
Selection Trust Limited, or any
explicit finding that his
obtaining the Amaw Tributaries
Concession Zone 1 constituted or
involved any breach of faith
with his former employers. On
the other h~md the judgment does
impute constructive notice of
the " first refusal" covenant in
tbe Topiramang Blocks 1/3
Concession to the claimant, and
contains the following passage
dealing with the first ground of
opposition.
" I shall now consider the law
in regard to the ohjections
which have heen raised on behalf
of the opposers.
As to the first ground: This
ground is based upon the
construction to be placed upon
section 12 (3) of the
Concessions Ordinance which
reads as follows :-
, No concession shall be
certified as valid if obtained
by fraudulent or other improper
means'."
Learned Counsel for the opposers
contended that the conduct of
the claimant in visiting Bodua
whilst he was in the employ of
the opposers and in then
entering into an agreement with
the Odikro of Topiramang to take
up a concession on his return to
the Colony in respect to lands
adjoining lands over which the
opposers already held certified
concession, amounted to bad
faith on behalf of the claimant,
and that the concession granted
in pursuance of this agreement
was consequently an improper
grant within the meaning of
section 11 (3) of the
Concessions Ordinance.
I am unable, however, to agree
with that contention.
In the judgment of the Privy
Council in the case of the
Wassaw ExPloring Syndicate
Limited v. African Rubber
Company Ltd. 1914) A.C. 626,
to which my attention has been
drawn.
Lord Shaw in delivering their
Lordships' judgment stated
inter alia as follows ;-
" Generally speaking, one may
say that the object of this
legislation is for the
protection of the nathves and
the native Chiefs, for the
validation by the Court, upon
enquiry, of concessions granted
of mining rights, rights of
competing concessionaires by
establishing priority among them
inter se."
312
Concession Enquiry No. 939
(Accra) Came Gfori Atta African
Selection Trust Ltd.
Aitkin,
J.
Con. Enq. No.
939 (Accra) Came Ofori Atta African Selection Trust Ltd.
Although, undoubtedly, the
opposers have their remedy in
damages for any breach of the
agreement entered into between
the claimant and themselves, 1
do not consider that the
fraudulent or improper means
contemplated by section 12 (3)
can be construed to have
reference to any other persons
than the actual parties to the
said concession. The persons to
be protected from, such
fraudulent or other improper
means are, in my opinion, the
Native Chiefs who are granting
the concession, and not third
parties.
According to the evidence of the
grantors, they are quite
satisfied with the terms cf the
concession and it cannot be
contended therefore that they
were induced to grant this
concession by fraudulent or
improper means used towards
them. This being my view of the
construction to be placed upon
this subsection, this ground
fails, and it will not be
necessary for me to consider the
various authorities cited by the
learned Counsel for the claimant
as to the reasonableness of the
terms of the agreement.
In regard to the second ground
of opposition the learned Judge
appears to have assumed that the
claimant did, in fact, procure
the grantors to break their
"first refusal" covenant in the
Topiramang Blocks 1/3
Concession, but went on to hold
that section 29 (I give its
present number) of the Cop
cessions Ordinance did not
operate to prevent him from
c0l1sidering "the legal
construction to be placed on "
that covenant, and then
eventually decided that it
created a limitation of land
which was void and unenforceable
as infringing the rule against
perpetuties. As regards the
original covenantors he came to
the conclusion that this " first
refusal" covenant was valid and
enforceable as a personal
contract, but that the breach of
that personal contract by the
original covenantors did not
affect the validity of the
claimant's Amaw Tributaries
Concession Zone 1.
The third ground of opposition
was not argued before the
learned Judge, and is therefore
not considered specifically in
his judgment. The African
Selection Trust Limited were not
long in appealing from this
judgment and obtained final
leave to do so on the 29th of
September, 1928, but in the
meantime on the 21st of August,
1928, they had commenced
proceedings against the claimant
in the High Court of Justice in
England, and those proceedings
raised several of the same
issues which had been raised by
the grounds of opposition in
this case As one consequence of
those proceedings the hearing of
this appeal appears to have been
stayed by the consent of all
parties pending their
determination, and after that it
seems to have been stayed for
about another 1 t years for some
reason or other which lias not
been disclosed to us. Thus more
than six years have elapsed
since the enquiry into the
validity of the claimant's Amaw
Tributaries Concession Zone 1
commenced, and the judgment of
this Court may not bring
finality! In the interest of
those parties to this enquiry
who have not millions of pounds
of capital behind them it is to
be hoped
Con. Enq. No.
939 (Accra) Came Olori AUu
African Selection Trust Ltd.
that it will. We have been
furnished with a copy of the
pleadipgs in the action brought
by the African Selection Trust
Limited against the claimant in
England, and in order to
understand the judgments of the
learned Lord Justices of
Appeal-for the case eventually
finished in the Appeal Court-it
appears to be necessary to set
out what the African Selection
Trust Limited claimed in that
action. Their claim is set out
in the writ of summons and
repeated, iPsissimis verbis,
in the statement of claim.
In both of these documents the
African Selection Trust Limited
is referred to as •• the
plaintiffs" and the claimant in
this pnquiry as •. the
defendant," and their claim
against him is set forth as
follows :-
(a)
A declaration that the defendant
was and is a Trustee for the
plaintiffs of a lease dated the
15th November, 1926, of land
known as the Amaw Tributaries
Concession Zone I in the Stool
of Topiramang in the Gold Coast
Colony.
(b)
A declaration that the defendant
was and is a trustee for the
plaintiffs of a Concession dated
the 29th May, 1928, in respect
of land situate in the Stool of
Adonkrono which adjoins the said
Stool of Topiramang in the Gold
Coast Colony.
(c)
An injunction rdtraining the
defendant his servants or agents
from selling mortgaging charging
pleading or in any manner
whatsoever disposing of or
dealing with the said lease or
the said Concession or the lands
or rights thereby conferred upon
the defendant except in such
manner and for such purposes and
to such persons firm or company
as the plaintiffs may direct.
(d)
An account of all profits
whatsoever which the defendant
may have made or to which he may
be entitled by reason of his
having obtained the said lease
and the said Concession
respectively.
(e)
Damages for wrongfully procuring
the Omanhene of the Paramount
Stool of Akim Abuakwa, the
Odikro of Topiramang and the
Odikro of Adonkrono all in the
Gold Coast Colony to commit
breaches of covenant or
contract.
(f)
Further or alternatively damages
for breach of an agreement in
writing dated the 12th August,
1924, and made between the
plaintiffs of the one part and
the-deIepdant of the other part.
(g)
Such further or other relief as
to this Honourable Court shall
seem just.
The statement of claim further
charges the defendant with
having (1) secretly and in bad
faith and in breach of his
agreement of service with the
plaintiffs obtained from the
Odikro of Topiramang the two
documents dated respectively the
25th of August, 1925, and the
2nd of September, 1925, to which
I have already referred in
detail. It also charges him with
having secretly and in bad faith
and in breach of his agreement
of service with the plaintiffs
and d the fiduciary duty which
he owed to them as his former
employers .... procured the
Omanhene of Akim Abuakwa and the
Odikro of Topiramang to enter
into the agreement of the 7th of
June, 1926, which I have already
set out in sufficient detail. It
further charges him with having,
in pursuance of the said s~cret
Agreements of the 25th of August
and 2nd of September, 1925, and
the 7th of June, 1926, procured
the said Omanhene and the said
Odikro of Topiramang to grant to
him, in breach of his duty to
the plaintiffs and of their duty
to the plaintiffs nnder the
Topiramang Blocks 1/3
Concession, the Amaw Tributaries
Concession Zone 1, without the
said Omanhene or Odikro having
313
Concession Enquiry No. 939
(Accra) Came Ofori Atta African
Selection Trust Ltd.
Aitkin,
J.
314
Con. Enq. No.
939 (Accra) Came Gfori Atta
African Setection Trust Ltl
"
i"
Concession Enquiry No. 939
(Accra) Came Ofori Atta African
Selection Trust Ltd.
Aitkin, J.
previously given notice or
offered the same to the
plaintiffs. The defence may be
summarised, for the purposes of
this appeal, as a complete
denial of any breach of the
Agreement of Service, bad faith
or breach of fiduciary duty on
the part of the defendant,
coupled with a further
allegation that the "first
refusal" clause in the
plaintiffs' Topiramarg Blocks
1/3 Concession is invalid. The
defendant also denied that he
had had any notice, actual or
constructive of the said clause.
It will thus be seen that the
following four issues raised in
this enquiry were also raised
before the Lord Justices of the
Appeal Court in England, viz.:-
1. Was the Amaw Tributaries
Concession Zone 1 Obtained by
the claimant in bad faith and in
breach of any duty that he owed
his former employers the African
Selection Trust Limited;
2. Did the claimant procure the
Omanhene of Akyem A buakwa and
the Odikro of Topiramallg to
break their " first refusal"
covenant in the Topiramang
Blocks 1/3 Concession;
3. Had the claimant actual or
constructive notice of that "
first refusal" covenant at the
time it was broken; and
4. Is that" first refusal"
covenant valid and enforceable.
On the first of these Issues
Lord Justice Scrutton came to
the conclusion that the
claimant's Amaw Tributaries
Concession Zone 1 was obtained
in part by acts and funds which
were not breaches of the
claimant's agreement of service
with the African Selection
Trust, Limited, but in part by
acts which were breaches of such
agreement.
The learned Lord Justice
considered that the documents
dated respectively the 25th of
August and 2nd of September,
1925, which the claimant
obtained from the Odikro of
Topiramang in breach of his
agreement of service, though
legally worthless, did enable
him to raise money in London for
the purpose (amongst others) of
negotiating a concession over
the Topiramang Stool lands, and
did, in point of fact,
facilitate these negotiations.
Lord Justice Slesser came to the
same conclusion, pointing out
that the money raised in London
on the strength of those two
documents of the 25th of August
and 2nd of September, 1925, was
the money with which the
claimant purchased the option of
the 7th of June, 1926, and thus
obtained priority over the
African Selection Trust Limited.
In those circumstances he
thought there is a direct nexus
between the claimant's breach of
his agreement of service and the
damage resultinb to
the Trust from the Amaw
Tributaries Concession Zone 1.
The leamed Lord Justices were
not, however, in accord on this
issue, Lord Justice Greer
agreeing with the trial Judge,
Mr. Justice Horridge, that the
possession of the documents of
the 25th of August and 2nd of
September, 1925, had in no way
assisted the claimant in
obtaining his option of the 7th
of June, 1926, and his
Can. Enq No. 939
(Accra) Came Ofori Atta African
Selection TrustLtd.
315
Amaw Tributaries Concession Zone
1 of the 15th of November, 1926,
and that his wrongful conduct
had nothing to do with the
obtaining of that concession.
On the second of these issues it
is dear that the three Lord
Justices all came to the
conclusion that the claimant did
not procure the Omanhene and
Odikro to break their" first
refusal" covenant in the
Topiramang Blocks 1/3
Concession, though they express
that conclusion in somewhat
different t~nns.
On the third of these issues the
three Lord Justices all held
that claimant had neither actual
nor constructive notice of that"
first refusal" covenant at the
time it was broken, Lord Justice
Slesser holding, in addition,
that constructive notice was not
sufficient in a case like this.
On the fourth of these issues,
Lord Justice Scrutton held that
the rule against perpetuities
did not apply to the" first
refusal" covenant, and that it
was valid and would be
enf(j)rceable did it not provide
for rent to be paid for an
undefined area of landundefined
in quantity and position. In
that respect the learned Lord
Justice considered that the
covenant only amounted to an
agreement to make an agreement,
and was therefore unenforceable.
I must confess that I find some
difficulty in following the
learned Lord Justice's reasoning
on this last point, but for
reasons which will subsequently
appear I have decided to pursue
that topic no further.
Lord Justice Greer appears to
agree with Lord Justice Scmtton
on this issue, but
sub silentio.
He does not deal with this"
first refusal" covenant
specifically, but towards the
end of his judgment he says" It
\\-ill be seen that I agree with
three-fourths of Lord Justice
Scrutton's judgment but the
point on which I differ is vital
to this appeal." That point of
difference is the first of these
issues I am now considering.
Here again, however, we find
that the learned Lord Justices
are not unanimous in their
conclusions, because we have
Lord Justice Slesser describing
this" first refusal" covenant as
both valid and enforceable:
truly the law is a chancy affair
even when the best legal minds
are brought to bear on its
problems I
The net result of all these
judgments is that the African
Selection Trust Limited failed
in all their claims against the
claimant except that for damages
for breach of his agreement of
service with them. In regard to
tho~e damages the Lord Justices
ordered an enquiry before one of
the Official Referees, but we
are told that the enquiry has
been stayed pending the
determination of this appeal. I
do not know whether the African
Selection Trust Limited regard
the judgments they obtained as
really helpful, but it is
obvious that we in this Court
must be grateful for the
guidance and assistance they
afford. Constituting, as they
did, a Court of concurrent
jurisdiction it seems to me that
their judgments, where
unanimous, and the judgments of
the majority where they
Concession Enquiry No. 939
(Accra)
Came Ofori Atta African
Selection Trust Ltd.
Aitkin,
J.
:n6
Can. Enq. No.
939 (Accra) Camc Ofori Aita
African Selection Trust Ltd.
.1
I"
-
Concession Enquiry No. 939
(Accra) Came Ofod Atta African
Selection Trust Ltd.
Aitkin,
J.
differ, are conclusivc upon the
first three, at any rate, of the
four issues which were raised
before them and are raised here,
in each case between the same
parties.
As to the fourth issue, whether
or no the "first refusal"
covenant is valid and
enforceable, it does not seem to
me that a decision npon that
issue was strictly necessary for
a determination of the questions
before the learned Lord
Justices; and in view of their
conclusions on the second and
third issues, which for the
reasons given I regard as
binding on this Court, I do not
think we are under any necessity
of attempting to detcrmine its
validity or enforceability now.
I fuI1y realise how important it
is to many interests and persons
in this Colonv and Ashanti that
an authoritative decision on the
true interpretation, validity
and enforceability of this
covenant should be given, hut
unfortunately anything we might
say on that difficult and
fascinating topic on this
occasion could only amount to
obiter"dicta,
and as the subjcct has not been
fully argued before us it
appears to be bettcr to say
nothing at all. I do, however,
venture to assert that nothing
whatever has occured eithcr in
these or any other proceedings
to fetter the judgment of this
Court if and when it is caI1ed
upon to pronounce a decision on
this " first refusal" covenant.
The way would now be dear for me
to consider the grounds of
opposition in this case but for
Mr. Qllartey Papafio's
contention that the African
Selection Trust Limited, having
treated the claimant's Amaw
Tributaries Concession Zone 1 as
valid in their action against
him in the English High Court,
cannot be al10wed to impeach the
validity of that concession in
this Court.
I admit the force of his
argument, which appeals to my
sense of natural justice, equity
and good conscience. It does
seem contrary to those
conceptions to allow a company
to treat a concession as valid
in Court " A " and ask that
Court to declare the holder a
trustee of it for them, and
then, having failed to persuade
that Court to do anything of the
kind, to apply to Court " B " to
declare that concession invalid
and so deprive the holder of its
benefits in another way.
During the course of the
argument we have been asked to
inspect the state of the
c~aima~t's hand~, and see
whether they. are sufficiently
clean to perm1t of h1m applymg
to a Court of EqUlty; but what
about the hands of those
opposing him? Are the standards
of conduct permissible to an
immensely rich company
non-applicable to a poor snitor
who happens to have crossed that
company's path?
I t is only with great diffiulty
that I have overcome my sympathy
with that contention, but I have
decided to reject it for the
following reasons :-
(1) The question of validity
does not depend on the conduct
of the opposers;
Can. Enq. No. 939
(Accra) Came Ofori Atta African
Selection Trust Ltd.
317
(2) The relevant provisions of
the Concessions Ordinance must
be complied with, and if the
claimant has acted in
contravention
01 any ~f them we must give
effect to the Jaw even though
the conduct of the person
calling our attention to that
breach does not commend itself
to us; and
(3) The African Selection Trust
Limited may have sustained some
damage owing to the claimant or
his representatives having been
in active possession of the Amaw
Tributaries Concession Zone 1
for at least the last six years
even if a Certificate of
Validity be refused.
And now at long last the way is
clear for me to deal with the
grounds of opposition, which are
still precisely the same as
those filed so long ago as the
23rd of June, 1927, though an
imposing superstructure of
elaborate argument has been
raised on their foundation.
As to ground 1, I have already
indicated my opinion that we
must deal with it on the footing
that Amaw Tributaries Concession
Zone 1 was obtained in part by
acts which were breaches of the
claimant's agreement of service
of the 12th of August, 1924,
with the African Selection Trust
Limited. That being so, we are
in much the same factual
position as that assumed by Mr.
Justice Michelin when he came to
deal with this ground of
opposition. I may as well,
therefore, say at once that I
entirely agree with what the
learned Judge said on this point
in the Court below. It cannot be
honestly disputed that the main
object of the Concessions
Ordinance, which was enacted in
1900 when the first gold boom
was attracting capital and
adventurers to these shores, was
the protection of the native
land owners from the
blandishments of none too
scrupulous concession hunters.
Seeing that those blandishments
not infrequently re.sulted in
two or more concessions being
granted over the same area, a
secondary object was the
reguJation of the competing
rights of those concessionaires
inter se. Everything
obviously turns on the
construction of sub-section (3)
of section 12 (fonnally 11),
which reads" no concession shall
be certified as valid if
obtained by fraudulent or other
improper means."
To my mind that expression
"fraudulent or other improper
means" must be construed as, and
confined to, such means when
used against the grantor. Not
only does the main object of the
Ordinance and the surrounding
provisions of section 12
indicate quite dearly that
construction, but commonsense
seems to require
it. Why should the Court deprive
the native landowner of the
benefits of a concession,
perfectly satisfactory and
obviously beneficial to him,
because the concessionaire may
have committed some tort
against, or breach of contract
with, a third person? The latter
has his remedy at common law or
equity and must seek it there;
the argument that his possible
wrongs should enable him to
inflict what might be
irreparable injury on an
innocent native landowner seems
to me to be both fantastic and
absurd,
K
Concession Enquiry No. 939
(Accra) Came Ofori Atta African
Selection Trust Ltd
Aitkin,
J.
318
Concession Enquiry No. 939
(Accra) Came Ofori Atta. African
Selection Trust Ltd.
Aitkin, J.
Con. Enq. No.
939 (Accra) Came Ofori Atta
Africa1! Selection Trust Ltd.
It was said that this Court is a
Court of equity, and that every
person venturing to cJaim a
concession before it must come
with clean hands. But is not.
the Court of Chancery in England
a Court of Equity, and does it
inspect the hands of the prr>ffioter
or promoters when considering
whether a limited company is
duly constituted or not? The
answer is surely in the
negative. Companies in England
depend for their validity on a
due observance of the provisions
of the Companies Act, 1929, and
on nothing else, and
pari passu concessions in the
Gold Coast must depend solely
OIl a strict observance of the
provisions of the local
Concessions Ordinance. I can now
pass to the second ground of
opposition, in regard to which I
have already stated
my opinion that we must accept
the unanimous findings of the
learned Lord Justices in England
that-
1. The claimant did not procure
the breach of the " first
refusal" covenant in the
Topiramang Blocks 1/3
Concession, and
2. He had neither actual nor
construction notice of that
covenant at the time it was
broken.
The~e findings seem to me to
shatter this second ground of
opposition to bits, and to
relieve us of any necessity to
pronounce on the true
interpretation, validity or
enforceability of the " first
refusal" covenant to which it
refers.
I only desire to add that in my
opinion there is nothing in
section 29 (formally 26) of the
Concessions Ordinance to prevent
this Court pronouncing on the
true interpretation, validity
and enforceability of that
clause should the occasion for
such a pronouncement ever arise,
and in this connection section
17 (1) of the Ordinance is
directly in point.
Remains the third ground of
appeal which was not argued
before us until Mr. Renner, in a
last gallant effort from the
corner into which he had been
driven, appealed to us to refuse
a certificate of validity on the
ground that the Omanhene of
Akyem Abuakwa and the Odikro of
Topiramang had broken their
"first refusal" covenant with
the African Selection Trust
Limited when they granted the
claimant his Amaw Tributaries
Concession Zone 1. But how can
any such breach on their part
invalidate a concession which
admittedly they were fully
empowered to grant and which,
equally admittedly, they have
granted in the correct form and
by the use of the appropriate
expressions? If the African
Selection Trust Limited d~sired
to prevent the Omanhene and
Odikro from granting that
concession their proper remedy
was to apply for an injunction
restraining them from doing so,
and if they wish to punish them
for having done so the
appropriate remedy appears to be
an action for damages for breach
of covenant.
But those questions concern us
not at all here: the opposition
of the African Selection Trust
Limited to the grant of a
Certificate of Validity has
failed and this appeal must be
dismissed wit4 CQsts.
Con. Enq. No. 939
(Accra) Came Ofor£ Atta African
Seler;tion Trust Ltd.
31 g
DEANE, C.]. THE GOLD COAST
COLONY.
I have had the advantage of
seeing the learned judgment of
Mr. Justice Aitken, in which he
relates at length the facts
hearing on this case and the
course of the litigation that
has taken place in connection
with those facts, including the
litigation in England between
the present opposers and Came
the claimant, the proceedings
in which were by consent placed
before this Court to be taken
into account in deciding this
appeal.
I do not therefore propose to go
o\"er the same ground, but will
confine myself to a short
statement of the reasons which
have led me to the conclusion
that this opposition cannot be
sustained and that the appeal
from the decision of the learned
trial Judge should be dismissed.
The opposition, it should first
be noticed is entered under the
Concessions Orc1inance Cap. 27
of the Laws of the Gold Coast
CoJonv.
By section 6 of that Ordinance
the Court is given power and
jurisdiction to certify as valid
or invalid any concession except
so far as otherwise provided in
the Ordinance, and such power
must be exercised in accordance
with the provisions of the
Ordinance. The matter is to be a
matter under the Supreme Court
Ordinance, but that last
Ordinance is to be read always
subject to the Concessions
Ordinance, and rules may be made
under section 87 of the Supreme
Court Ordinance to provide for
the working of the Concessions
Ordinance.
The legislature in fact enacted
clearly that matters under this
Ordinance should be dealt with
strictly according to the
Ordinance, and validation or-
invalidation is not a matter
left to be dealt with at large
in the discretion of the Court;
its action is limited by the
power and jurisdiction conferred
by the Ordinance.
That this view of the law
conunended itself to the
opposers appears from a
consideration of the grounds of
opposition on which they relied,
since it is clear from the
wording of the first two grounds
of opposition that their
objection to the grant of a
Certificate of Validity is based
on section
12 (3) of the Ordinance which provides that no concession shall be valid
if obtained by fraudulent or
other Improper means.
Now in the judgment of the Privy
Council in the case of the
Wassaw ExPloring Syndicate Ltd.
v. African Rubber Co. Ltd.,
(19]4) A.C.
626, Lord Shaw said" Generally
speaking one may say that the
object of this legislation" by
which is meant the Concessions
Ordinance, "is for the
protection of the natives and
the Native Chiefs, for the
validation by the Court upon
enquiry of concessions granted
of mining rights, rights of
cutting trees, etc. and for the
regularising of the rights of
competing concessionaires by
establishing priority among them
inter se."
The opposers might therefore, in
my opinion, as being holders of
concessions over neighbouring
land have been heard if they had
alleged that this concession
infringed their concessions ov~r
such land,
but
inaimuch as they
Concession Enquiry No. 93g
(Accra) Came Ofori Atta African
Selection Trust Ltd.
Deane. C.].
I
~
320
Concession Enquiry No. 939
(Accra) Came Ofori Atta African
Selection Trust Ltd.
Deane, C.].
Con. Enq. No.
939 (Accra) Came Ofori Atta African Selection Trust Ltd.
did not claim to be heard on any
such ground, and as they are
clearly not natives, it seems to
me that, strictly speaking they
had no right at all to be heard.
The power given to the Court
under section 11 to order notice
to be given to " any such other
person as the Court may direct"
is clearly intended to be used
by the Court for the purpose of
bringing before it any person
belonging to the classes above
referred to, and the sole object
of the Ordinance, apart from
settling priorities among
concessionaires, is to protect
natives. It was, in fact, never
passed for the purpose of
protecting Europeans who might
consider they had some
contractual rights conferring no
interest in the land, against
one of the parties to the
concession.
In this case the opposers were
not summoned by the Court to
appear but came forward
themselves, purporting to do so
under section 12 (3). Could they
do so? It seems to me they could
not, since they did not appear
as competing concessionaires or
as natives. The Court might, I
think, have refused to hear
them.
If further we turn to the
grounds on which they based
their opposition what do we
find? Ground 1 reads "The
concession the subject of this
enquiry was obtained by improper
means in that the claimant,
whilst under agreement to serve
the opposers only and in breach
of the said agreement and
utilising for his own benefit
confidential information of the
opposers' business, negotiated
and obtained an option of the
same." It is clear to my mind
that in alleging that, by the
means indicated, the claimant
obtained the concession by
improper means, the opposers are
labouring under a confusion of
thought. A man may get a
concession from "A" by
perfectly proper means, giving
him fair consideration, and
acting straightforwardly and
above board with him, while it
may be thought by " B" and
others that by obtaining the
concession he was acting
improperly to':/ards " B." He
cannot OIl that account in any
sense be said to be obtaining
the concession from" A " by
improper means, since the means
by which he obtained the
Concession from" A " were in no
sense improper.
Even, therefore, if the claimant
was guilty of breach of a
contract with the opposers in
obtaining this concession from
the grantors, it cannot in any
reasonable sense of the words'be
said that he obtained the
concession from the grantors by
improper means when all the
evidence shows that he obtained
it for good consideration and
with due regard to the rights of
the grantors. The objection in
my opinion must necessarily, for
this reason, fail.
Further I am of opinion that in
any case the opossers cannot now
rely upon this ground. After the
judgment of the learned trial
Judge, apparently accepting his
view that their remedy was by an
action for breach of contract,
ther instituted proceedings in
England claiming damages for
this very breach. They have now
~qcceeded in obtaining a
judgment in their favour, and
having
Con. Enq. No. 939
(Accra) Came Ofori Atta African
Selection Trust Ltd.
321
obtained this judgment they
cannot now ask this Court to
give ~nc~ion them additional
relief in respect of the same
cause of action in
N~:~;:l
respect of which they have
already obtained relief in
another Court.
(Accra)
Ground 2 reads "The said
concession w s obtained by g~:~
Atta improper means in that to
the claimant's knowledge the
grantors
Africa!! thereof had previously
and for valuable consideration
covenanted i~~~t~~d.
with the opposers not to grant
concessions over the area
comprising
--
the said concession without
first offering such concessions
to the Deane, C.}. opposers and
the claimant procured the breach
by the grantors of
the said covenant in that to his
knowledge no offer was made to
the
opposers as required thereby."
With regard to this ground also,
in my opinion, the same
considerations apply as I have
mentioned in dealing with the
form of the first objection. The
obtaining from the grantors,
before it can be objected to
under the Concessions Ordinance,
must be an obtaining by improper
means used towards the
grantor-some fraud or deceit
practised by the claimant on the
grantor for the purpose of
obtaining the concession. The
fact that by obtaining the
concession from the grantor the
claimant or the grantor may have
given a right of action to a
third party is not, it seems to
me, a good reason for
invalidating the concession.
Supposing, however, that I am
wrong as to this and that it
should be held that, in order to
prevent multiplicity of suits,
the Concessions Court should
deal with the matter on general
grounds, it is clear that the
opposition must fail since
knowledge of the covenant cannot
be proved against the claimant,
nor can it be fairly held on the
evidence that he procured a
breach by the grantor of his
covenant-(see Judgments of the
Court of Appeal). For these
reasons I am of opinion that the
appeal should be dismissed with
costs.
WEBBER, c.J SIERRA LEONE.
I have had the benefit of
reading the very exhaustive
judgment of my brother Aitken,
J., and I agree with the
conclusions he has arrived at in
dismissing this appeal.
As to the first ground of
opposition, namely, that the
concession was obtained by
improper means in that the
claimant, whilst under agreement
to serve the opposers only and
in breach of his agreement and
using for his benefit
confidential information of the
opposers' business, negotiated
and obtained an option for same,
I am in agreement with the Court
below that such a breach cf
faith as alleged is not a valid
ground for opposing a claim
under section 12 (3) of the
Concessions Ordinance. The"
fraudulent and improper means"
are directed to means when used
against the grantor and not to
some wrong committed by a
grantee in his dealing with
another concessionaire.
The second ground also fails in
that the Lords Justices in
Enffland not only negated the
plea put forward by the opposers
that the claimant procured the
breach of the .• first refusal"
2
322
Concession Enquiry No. 939
(Accra) Came Ofori Atta African
Selection Trust Ltd.
Con. Enq. No.
939 (Accra) Came Ofori Atta African Selection Trust Ltd.
covenant in the opposer's
concession (Topiramang Blocks
1/3) but found also, as a fact,
that he the claimant had neither
actual nor constructive notice
of that covenant at the time it
was broken.
I agree that the appeal should
be dismissed.
|
