Accra, 13th November, 1940.

                                     COR. KINGDON AND GRAHAM PAUL, CJJ., STROTHER­STEWART, ].

                                                           EMMANUEL NELSON TAMAKLOE                   Plaintiff-Appellant.

                                 v.

                                              THE BASEL TRADING COMPANY  LIMITED .        Defendants-Respondents.

Claim for rent under a concession within the meaning of the Concessions Ordinance--l'ent payable governed by certificate of validity­section 29 debars Plaintiff-appellant from succeeding.

Held: It is impossible to ignore as neither good nor valid that part of the certificate of validity which governs the rent payable under the concession and the plaintiff-appellant accordingly must fail.

(2) (Following V.A.C. Ltd. v. James Eggay Taylor II IV.A.C.A. 71) no allegation of fraud can be entertained where it has not been definitely and clearly alleged in the pleadings.

The facts are fully set out in the judgment.

Frans Dove for Plaintiff-Appellant.

E. C. Quist for Defendants-Respondents.

The following joint judgment was delivered :-

KINGDON, CJ., NIGERIA, GRAHAM PAUL, C]., SIERRA LEONE AND STROTHER-STEWART, J., GOLD COAST.

The plaintiff-appellant in this case claimed as the owner of certain land and as the holder of a Certificate of Validity as from 30th September, ] 9:H, arrears of rent as from 2nd July, 1935, as per particulars filcd, a total sum of .£355. The defendants are the grantees under a concession granted under the Concessions Ordinance in respect of the land in question.

The facts which gave rise to the issue in this case are not seriously in dispute and they may be shortly stated. The original Indenture, the basis of the concession in question (Exhibit " A ") was dated 4th March, 1931. It was granted by Chief Badu II and another acting for themselves and as representing the Klevie Tribe in favour of Hans Schumann of Hamburg. It was a 99 years lease at an annual rent of £150-£300 being paid as rent in advance on the execution of the lease. On 16th April, 1932, a Certificate of Validity (Exhibit " D ") was duly issued by the Court under Section 6 of the Concessions Ordinance (Cap. 27) in respect of the original Indenture of lease, and the grantees occupied and paid rent accordingly.

By Indenture of 17th June, 1935, the said Hans Schumann assigned the original lease to the present defendants-respondents in whose favour a Certificate of Validity No. 478 was issued under the Concessions Ordinance.

 

 

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232

Tamakloe v.

Basel Trad. Co., Ltd.

Kingdon and Graham Paul, C.]]. and Strother­Stewart, ].

 

 

Tamakloe v. Basel Trad. Co., Ltd.

The Indenture of 17th June, 1935, was based upon and followed three Agreements dated respectively 21st March, 22nd March and 1st April, 1935, between the present defendants-respondents and the original grantors of the concession. The three Agreements are in the same terms and are signed separately by the original grantors of the concession. Taken together they constitute one Agreement between all the original grantors and the defendants­respondents and the purport of that Agreement may be very shortly stated. It gave to the defendants-respondents an option to take over the rights title and interest of Hans Schumann in the concession and in consideration of the defendants-respondents taking over the concessic:! and in consideration of their paying £5 to each of the original grantors it was agreed that the original rent under the concession should be reduced from £150 to £65 per annum (with a sliding scale for increase of rent in proportion to increases in the C.I.F. price of copra in Europe).

Accordingly, having ohtained their Certificate of Validity to the transfer hy Schumann, the defendants-respondents on 19th December, 1935, obtained from the Court an order under Section 31 of the Concessions Ordinance varying the Certificate of Validity so as to conform with the Agreements as to the reduction of rent.

In the meantime the plaintiff-appellant had heen litigating with the original grantors of the concession as to a sale of the grantQrs' rights in this land at which the plaintiff-appellant claimed to have 1?ought the original grantors' rights on 30th June, 1934. The litigation was protracted and was not finally concluded until 3rd June, 1938, when in this Court the plaintiff-appellant \\-as successful.

On 12th September, 193~,' on the joint application of the defendants-respondents, the original grantors, and the plaintiff­appellant the Court made an order under Section 29 of the Concessions Ordinance for the indorsement on the Certificate of Validity to the effect that" the land comprised in and referred to in the said Certificate of Validity No. 478 has become the property of Emmanuel Nelson Tamakloe (the plaintiff-appellant) as from the 30th June, 1934." That indorsement waS duly made.

There was no application to the Court made by the plaintiff­appellant at that time, or at all, to vary the Certificate of Validity as to the rent and so far as the orders and records under the Concessions Ordinance arc concerned the rent payable in respect of this concession is as fixed by the Court in varying the Certificate of Validity as regards rent on 19th December, 1935.

It is not disputed that the defendants-respondents have paid to the Treasurer under Section 32 of the Concessions Ordinance all rents due hy them under this concession on the hasis of the va:\,'iation made in the rent under the Court's order of 19th December, 1935. The amount claimed in the present suit is the difference hetween the rents paid under the reduction arrangement and the rents which would have been paid if there had not been such a reduction arrangement .

Tamakloe v. Basel Trad. Co., Ltd.

It is quite clear that the plaintiff-appellant is suing for rent under a" concession" within the meaning of the Concessions Ordinance. It is also clear that the defendants-respondents have paid in full the rent due according to the Certificate of Validity relating to this concession. Section 29 of the Concessions Ordinance provides as follows :-

•• A Certificate of Validity shall be good and valid from the date of such certificate as against any person claiming adversely thereto."

The plaintiff-appellant in this suit seeks to ignore a's neither good nor valid against him that part of the Certificate of Validity which governs the rent payable under this concession. He seeks to ignore the subsisting order of the Court of 19th December, 1935, varying the rent payable, It is obvious that the clear terms of Section 29 of the Concessions Ordinance make it impossible for the plaintiff-appellant's contention to succeed.

At the very close of the case in the Court below, even after defendants' Counsel had addressed the Court, Counsel for the plaintiff for the first time alleged fraud' on the part of the defendants­respondents and at that stage asked leave to aTIlend his pleadings by alleging fraud. This preposterous application was, of course, refused by the learned trial Judge but even in this Court the appellant's Counsel by his third ground of appeal and his arguments in I support of it claims that he is " entitled to .contend and now contends that there had been fralld on the part of the respondents," It is difficult to take this claim seriously but if it were taken seriously the complete and authoritative answer to it is to be found in the judgment of the Privy Council in the case of the United Africa Company, Limited v. James Eggay Taylor (II West African Court of Appeal Heports at page 71) where the following .passage occurs :-'--

•• In the opinion of their Lordships there is no rule which is less subject

. to exception than the rule that charges of fraud, and a fortiori charges of criminal malversation or felony, against a defendant ought not to be made at the hearing of an action unless, in a case where there are pleadings, those charges have been definitely and clearly alleged, so that the defendant comes into Court prepared to meet them,"

The appellant's Counsel founded upon the indorsement made by order of Court on 12th September, 1938, which is in the following terms :-

•• The land comprised in and referred to in this Certificate of Validity has become the property of Emmanuel Nelson Tamakloe of Keta as from 30th June, 1934."

But the effect of that indorsement is simply to put the appellant into the position of the grantor in regard to the concession in question and as such grantor he must accept and be bound by the terms (just as he can compel the respondents to comply with the terms) of the concession as certified in the subsisting Certificate of Validity.

The appeal is dismissed with costs assessed at £23 Gs.

 

 

233

Tamakloe v.

Basel Trad. Co., Ltd.

Kingdon and Graham Paul, C.Jj, and Strother­Stewart; J,