1934. Appeal from Court of Chief Commis­sioner,

Enquiry into validity of concession--ex facie order-Application for leave to oppose made before final order-Substitution of another application to oppose in representative capacity­ Motion adjourned pending determination of Suit concerning interest of Grantors and Opposer in property the subject of the concession-Final Order for Certificate of Validity made before hearing of motion or determination of Su-it.-Section 27 of Concessions Ordinance wrongly relied upon to protect Opposer's rights-Section 12 (2) of Ordinance imposes duty on Court to ascertain proper person.~ to grant concession-These issues subject of Suit and Motion.

Held: Appeal allowed. Order for issue of certificate set aside, Remitted to Court below for determination of motion.

A. Case-Hayford for Opposer-Appellant.

C. C, Carter for Claimant,

E. O. Asafu-.4djaye for Grantors,

The following judgments were delivered:--

ArrKEN, J.

On the 14th of December, 1931 Mr. Herbert Flintoft, the claimant, for the sum of £50, obtained from the grantors a gold and mineral concession, now known as the Beposo Lands Concession, over an area of approximately five square miles near Lake Bosumtwi at Beposo. Subject to the payment of a yearly rent of £12 until the commencement" of winning of gold or crushing of ore" and thereafter a yearly rent of £300, the concession was granted for a period of ninety-nine years provided that the claimant (his heirs exeeutors administrators and assigns) observed and performed certain not very onerous covenants. Other advantages were thereby conferred on the claimant (his heirs executors administrators and assigns) which it is not necessary to specify, though attention may be drawn to his right to determine the said term of ninety-nine years at any time by giving to the grantors " six calendar months notice in writing in that behalf".

Notice of this concession was filed on the 24th of December, 1931; the deed itself was duly registered on the 8th of January, 1932; and on the 25th of January, 1932 the documents on which the claimant relied in support of his right to the concession were filed.

On the 21st of February, 1933, the matter of this concession seems to have come before the Chief Commissioner's Court of Ashanti, Concessions Division, for the first time. The Court was then constituted by Mr. C. M. Barton, the Circuit Judge, and the enquiry was numbered 197.

The learned Judge ordered that the necessary enquiry into the validity of this concession should be held at Kumasi on the 27th of February, 1933, and we may safely assume that the provisions of section 11 of the Ashanti Concessions Ordinance were duly complied with.

On the 27th of February, 1933 the enquiry was held at Kumasi before Mr. C. M .. Barton, Circuit .Tudge. After hearing the evidence of the linguist to the Omanhene N ana Osei Agyeman Prempeh II and of the Registrar of the District Commissioner's Court at Kumasi, and after the concession deed itself had been admitted in evidence by consent, the learned Judge made the following order:-

" Certificate of validity in respect of Concession Inquiry "No. 197 to issue subject to the following " conditions:-

" (1) A cadastral plan of the concession to be prepared.

" (2) The Governor being satisfied that the financial " circumstances of the claimant are such as to ensure "that the concession will be sufficiently developed " and worked ".

It is to be observed that up to, and including, that 27th of February, 1933 no application for leave to oppose the grant of a certificate of validity had been made to the Chief Commissioner's Court, nor had any hint of opposition thereto reached the ears of the learned Judge so far as we know. In the circumstances his order was a perfectly proper one, but not being the final order for

the issue of the certificate of validity it left the way open for any person desiring to oppose the grant of such certificate to apply to the Court under section 14 (1) of the Ashante; Concessions Ordi­nance for leave to oppose.

On the 4th of August, 1933 Nana Kwabena Wusu, the Omanhene of Ejisu, filed a notice in the Chief Commissioner's Court that the Court would be moved by him on the 15th of September, 1933, for an order that he " be made a party to the " above concession (i.e., the Beposo Concession) opposing the grant " of certificate of validity to the grantees". I am here quoting the actual wording of his notice of motion, it was probably not drafted by learned Counsel. This notice of motion was duly served on the grantors and the claimant on the 10th of August, 1933, and there was an affidavit in support which was presumably served on the same parties along with the notice of motion.

On the said 15th of September, 1933 this motion came before' the Chief Commissioner's Court, which was then constituted by Mr. C. E. Woolhouse Bannerman, O.B.E., the acting Circuit Judge, and was adjourned to the 29th of the same month. On the latteI date it was withdrawn by Mr. A. Heward-Mills, who appeared on behalf of the would-be opposer, and it is to be observed that the motion thus withdrawn was one by Nana Kwabena Wusu, th0 Omanhene of Ejisu, in his personal capacity.

On the 16th of December, 1933 a notice was filed to the effect that the Chief Commissioner's Court would be moved on the 18th of December, 1933 by Counsel for Nana Kwabena Wusu, Omanhene of Ejisu, on behalf of himself and of all other the people of the stool of Ejisu, for an order that the said N ana Kwabena Wusu, Omanhene of Ejisu, on behalf of himself and of all other the people of Ejisu, be made a party to the enquiry into the Beposo Lands Concession for the purpose of opposing the grant of a certificate of validity therein. An affidavit in support appears to have been filed on the same date. Mr. Asafu-Adjaye, on behalf of the grantors, sought to argue that one application by the Oman.hene of Ejisu for leave to oppose having been withdrawn, he could not make another. It was pointed out to him, however. that the first of these two applications was made by the Omanhene in his personal capacity, whereas the second of them was made by him as representing himself and the people of the stool of Ejisu. He felt no difficulty whatever in holding that the withdrawal of the first application was no bar to the second, and Mr. Asafu­Adjaye appeared to acquiesce in our decision.

On the 18th of December, 1933, this motion came before the Chief Commissioner's Court constituted by Mr. C. E. Woolhouse Bannerman, O.B.E., the acting Circuit Judge, and was adjourned to the 18th of .January, 1934, apparently because service thereof on

the claimant had not been effected. It next came before the Chief Commissioner's Court, constituted by the same learned Judge, on the 19th of January, 1934, and the learned Judge's notes of what then took place read as follows:-

" IN THE MATTER OF THE ORDINANCE.

" CONCESSION ENQUIRY No. 197 (AsHANTI).

" A motion on notice for an order of this Court to join " the Omanhene Chiefs and Elders and Councillors " of the Stool of Ejisu.

"Affidavit of Joseph Kenneth Botchey of Ejisu "(Registrar) of the 'l'ribunal of the Omanhene of " Ejisu filed herein the 16th day of Decembel', 1933, " in support of motion.

Motion is read.

" Mr. Albert Heward-Mills moves. " Mr: Asafu-Adjaye opposes.

"Mr. Albert Heward-Mills informs the Court that he " has served copy of the affidavit and motion paper " on Mr. Flintoft and that he has seen Mr. Carter of " Giles Hunt & Co. That Mr. Carter has informed " him that he has no objection to this motion being " heard.

'fhe Court points out that there is already an action " pending before this Court between the applicants " on the one hand and the lessors and lessees on the " other; that this motion is not necessary and the " issues will be tried in the substantive action.

'Mr . .Albert Heward-Mills applies for the motion to " stand adjourned sine die pending the hearing and " determination of the substantive action.

" Mr. Adjaye has no objection.

" By the Court-

" Motion stands adjourned sine die until after the " hearing of the suit"

Mr. Carter has stated to us that he was never approached by Mr. Heward-Mills in regard to the hearing of this motion on the said 19th of ,January, 1934, and that he never informed the latter that he had no objection to the' motion being heard on that date. It is indeed regrettable to find the learned counsel at issue over a personal question like this, especially as :Mr. Heward-Mills was not before us to give his version of the incident; but no application was mane to the learned Judge to set aside his order adjourning the motion until after the hearing- of the suit between the opposers and the grantors, nor was any attempt made to appeal against it; consequently that order remains in full force and effect. It is obviously of considerable value to the opposers because, if they do succeed in establishing their claim to be joint owners of the Beposo lands together with the grantors (see paragraph 7 of the affidavit of John Kenneth Botchey filed in the Chief Commissioner's Court on the 16th of December, 1933), they will be in a strong position to press their views as to the inadequacy of the consideration for the Beposo Lands Concession on the claimant. I am aware, of course, that Mr. C.B. Pearson, the Acting Circuit Judge, who purported to grant a certificate of validity of that concession on the 28th of May, 1934, ignored this or0.er made by his predecessor in office on the 19th of January, 1934, but I am clearly of opinion that he was bound by that order and had neither power to rescind it nor to disregard it. There is now only one way of getting rid of it, and that is with the consent of the would-be 0pposer.

From what I have already said it will be realised that Mr. Carter, for the claimant, had an impossible case to argue. Nevertheless he made a valiant attempt to argue it, and it seems only courteous to deal with that attempt before I close. Mr. Carter put forward two arguments. :First he submitted that Barton, J.'s Order of the 27th of February, 1933, which I have quoted in full, must be regarded as a final order for the issue of the certificate of validity and therefore as barring the way to any subsequent application for leave to oppose: see section 14 (1) of the Ordinance. The answer to this argument is that the order of the 27th of February, 1933 is very obviously and ex facie not a final order. Next Mr. Carter argued that the proceedings before Mr. C. B. Pearson, Acting J. on the 28th of May, 1934 must be regarded as a hearing of the would-be opposer's application for leave to oppose and as a refusal thereof from which, by virtue of the provisions of section 14 (1) of the Ordinance, there can be no appeal. Certainly the learned Judge referred to the motion in opposition in the course of those proceedings and read the affidavit in support, but I cannot gather from his notes that he ever regarded himself as hearing that motion and, indeed, no one ever asked him to hear it. He simply seems to have looked at it and then, literally and metaphorically, to have pushed it aside. Whatever the effect of that may be, I do not think that it can amount to a judicial hearing and determination of the questions at issue between the parties; more6vBr, as I have already pointed out, Mr. C. B. Pearson was bound by Mr. C. E. Woolhouse Bannerman's Order of the 19th of January, 1934, and that prevented him from hearing the would-be opposer's motion until the determination of the suit between him and the grantors unless, of course, the would-be opposer should consent to an earlier hearing. In other words Mr. C. B. Pearson had no power to hear and determine the would-be opposer's motion on the 28th of May, 1934, whatever his intentions may have been, and no power to grant a certificate of validity until that motion was heard and disposed of. In the result this appeal must be allowed and the order of the 28th of May, 1934, granting a certificate of validity in respect of the Beposo lands Concession, must be set aside. The matter is hereby remitted to the Court of the Chief Commissioner of Ashanti, to deal with the would-be opposer's application for leave to oppose in due course of law and with due regard to Mr. C. K Woolhouse Bannerman's Order of the 19th of January, 1934.

DEANE, C.J., GOLD COAST.

I have had the advantage of reading the judgment of Mr.

Justice .Aitken and agree with the conclusion at which he has arrived. I should, however, like to say shortly how the case presents itself to me.

There was nothing in my opinion to prevent the opposer from making his motion to the Court to be made a party to an enquiry for the purpose of opposing the grant of a certificate of validity to the holder. That right was conferred on him by section H (1) Cap. 5 of the Laws of Ashanti which enacts" Any person desiring " to oppose the grant of a certificate of validity of a concession " may apply to the Court for leave to oppose at any time before " the date of the final order for the issue of such certificat.e; and " the Court may, in its discretion, after hearing the application, " either grant or refuse such leave, and no appeal shall be allowed " from a decision of the Court under this section" .

The date of the final order for the issue of the certificate which was issued on. the application of the attorney for the holder was the 28th day of May, 1934. The date of the application for leave to oppose was 16th day of December, 1933. The opposer was thus well within the time allowed him to enter opposition and it was only after due hearing that that application could be refused by the Court. The opposer in his motion had set out the grounds on which he claimed to be heard and it was only therefore after due consideration of his case advanced in support of those grounds that the Court could exercise its judicial discretion and refuse the right to him to appear as a party to oppose.

Now what occurred? On 18th December, 1933, the motion came on for hearing before Mr. Bannerman, then Acting Circuit Judge, Mr. Heward-Mills appearing to represent the opposer, Mr. Asafu-Adjaye for the grantors. Mr. Plintoft did not appeal'­ though served, but Mr. Heward-Mills stated that he had seen his solicitor, Mr. Carter, and he had 'no objection to the matter being heard. This Mr. Carter denies, but it is significant that he does not claim that his client was not served, and I have come to the conclusion in view of his argument in this Court that he did not appear because he considered that in view of the order made by Mr. Barton his client could afford to regard the matter as only a fight between two lots of natives about the rent reserved in the lease with which he was not concerned. That this was an entirely wrong view I hope to make clear later. However that may be on 18th December, with the consent of Mr. Heward-Mills and Mr. Asafu­Adjaye for the grantors; the motion was adjourned by the learned Judge sine die pending the determination of a suit then pending between the opposers on the one side and the grantors and the holder on the other in which the same claim raised by the motion viz: a claim by the opposer that he and his people were co-owners of the concession land with the grantors, was in issue. It is to be noted that the learned Judge himself pointed out that owing to the action already pending the motion was, in his opinion, unnecessary since the issues set up by it would be tried in a substantive action, from which we may perhaps infer that he also believed that the opposers stood to gain nothing from the lessee by their opposition. He however agreed, on the application of Mr. Heward-Mills, that the motion should stand adjourned sine die pending the hearing and determination of the substantive action.

Thus the matter stood when on 26th May, 1934 one Christian, a clerk of the holder's solicitors, who purported to be the attorney of the holder, made a verbal application to }1r. Pearson then occupying the bench of the Circuit Court for an order that the certificate of validity should issue for the concession. Mr. Heward-Mills and Mr. Asafu-Adjaye appear to have been in Court at the time, and Mr. Heward-:Mills at once called the learned Judge's attention to Mr. Bannerman's order adjourning his motion, pending the hearing of the case between the parties, and pointed out that if the order asked for was made that would deprive his client of the rights he claimed, while Mr. Asafu-Adjaye remarked that there was authority for granting subject to right of others interested in the grant. 'l'he matter then stood over to 28th May, 1934, when the learned Acting Circuit Judge, who in the meantime had looked at the papers, stated that while he appreciated Mr. Heward-Mills' contention he was of opinion that time was running against" that valuable concession" which it was to the interest of all parties should not be lost, and further that the interests of Nana Kwabena Wusu anel others (the opposers) were sufficiently protected by the provision in section 27 of Cap. 5, and he therefore, after taking the evidence of Christian, who produced the cadastral survey ordered by Barton, J. and a certificate by the Colonial Secretary that His Excellency the Governor was satisfied as to the financial status of the client, ordered the issue of the certificate.

Now it is clear that the idea that the interests of the opposers were sufficiently protected by section 27 of Cap. 5 seems to have been a rooted obsession in the minds of everyone who had to do with this matter except }Ir. Heward-Mills, Mr. Bannerman, Mr. Pearson, Mr. Carter and Mr. Asafu-Adjaye all apparently thinking that the interests of the opposers were sufficiently protected by section 27. If, however, the section is looked at it will be seen that, after providing that a certificate of validity shall be good and valid from the date of such certificate as against any person claiming adversely thereto, it goes on to enact that in the event of the land therein referred to or any portion thereof becoming or being declared to be the property of any person other than the grantor mentioned in such certificate, the Court shall make such order as it deems just with reference to the payment or apportion­ment of rent, and the Court shall cause to be sent to the Treasurer an office copy of such order.

1£ the terms of this section are regarded it will be seen that, so far from the opposer's interests being protected or unaffected by it, it completely extinguished his interests vis-a-vis the lessee once the certificate was signed as from the date of the certificate, and only allowed the Court, in case he established thereafter rights to the land as against the grantor, to make orders as to how the rent reserved under the certificate was payable. The section, however, is quite inapplicable in this case since when the opposer's motion was made no certificate had been signed: he was objecting to the issue of the certificate, and his claim was made long before the issue of the certificate, the issue of which, as we have seen, would deprive him entirely of his right to object to the lease or its terms. His motion was adjourned, and the points raised in it reserved for determination, and later 011 it was disregarded entirely because the Court thought it did not matter at all. In my opinion it mattered greatly and the reason given for disregarding the elementary principle of natural justice not to take away a man's rights without hearing him, which is jealously preserved in section 14, is not a good one, and the determination of the matter without hearing appellant's case was illegal.

In my opinion, moreover, it was illegal for another reason.

By section 12 (2) of the Concessions Ordinance it is provided that no concession shall be certified as valid unless the Court is satisfied that the proper persons were parties to the concession, and that it may be reasonably presumed that they understood the nature and terms thereof. Inasmuch as in his reasons for asking to be allowed to oppose the opposer had set up a reason which, if true, would entitle him to be a party to any concession dealing with the land in question, it is quite clear that the learned Acting Circuit Judge could not be satisfied before he had examined into the truth of the claim who were the proper persons to be made parties to the concession. Mr. Barton had issued a provisional order for a certificate of validity so long ago as 27th February, 1933, but the opposition had been entered to a final order being issued on 16th December, 1933, and accordingly when in May, 1934 the application for a final order was made the situation had entirely changed, a new enquiry had been instituted, and the Court was bound, before granting the final order for the certificate, to hear and determine the opposition motion before it, otherwise it could not be satisfied as to the proper persons being parties to the concession, and if it was not satisfied was prohibited from issuing the order for the certificate of validity.

The Court in fact was enjoined by section 14 not to issue the certificate before hearing and determining the opposing motion: it was prohibited from issuing the certificate under section 12 (2)