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 W. P. Michelin's careful judgment of the 2nd of July, 1928,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. great part of the learned Judge's judgment is taken up with 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.

         From a careful perusal of that judgment I cannot discover any finding of fact that the claimant's action in obtaining 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 constituted or involved any breach of faith with his former employers. On the other hand the judgment does impute constructive notice of the " first refusal" covenant in the 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 objections which have been 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 natives 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."

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 of 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 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 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 resulting to the Trust from the Amaw Tributaries Concession Zone 1.

The learned 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 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 terms.

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 those 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 differ, are conclusive 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 subject has not been fully argued before us it appears to be better to say nothing at all. I do, however, venture to assert that nothing whatever has occurred either 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 claimant's hand~, and see whether they. are sufficiently clean to perm1t of h1m applying to a Court of Equity; 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 difficulty 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;

(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 resulted in two or more concessions being granted over the same area, a secondary object was the regulation of the competing rights of those concessionaires inter se. Everything obviously turns on the construction of sub-section (3) of section 12 (formally 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,

It was said that this Court is a Court of equity, and that every person venturing to claim 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 promoter 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 on  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.

These 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 with Costs.

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 over 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 Colony.

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 commended 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 over such land, but inasmuch as they 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 towards " B." He cannot on 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, they instituted proceedings in England claiming damages for this very breach. They have now  succeeded in obtaining a judgment in their favour, and having obtained this judgment they cannot now ask this Court to give them additional relief in respect of the same cause of action in respect of which they have already obtained relief in another Court. (Accra)

Ground 2 reads "The said concession w s 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 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 of 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 England not only negated the plea put forward by the opposers that the claimant procured the breach of the .• first refusal" 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.