Concessions Ordinance
Certificate of Validity Claim
for rent of
Appeal from
land- Jurisdiction-Section
48 (2) (c) of Native
Administration Ordinance Cap.
76-Question of ownership-res
judicata. Court.
This was a claim by the
purchaser of land subject to a
concession for the refund of
rents wrongfully collected on
his land by appellant as agent
of the original grantors. the
other defendants. Judgment was
given for plaintiff. It was
contended
inter alia
that this was a suit for rent of
land between parties subject to
the Native Administration
Ordinance and was an action
relating to ownership possession
or occupation of land and as
such cognizable by a Native
Tribunal.
Held: That the question of
ownership was
res judicata
and the fact that the money
claimed had been rent of land
was an accident: that as it was
not necessary for the trial
Judge to adjudicate 1Ipon any
matter relating to the ownership
possession or occupation of
land he had jurisdiction.
Solomon v. Vanderpuye
(28-6-34: unreported) :
Djabertey v. Benkumhene Antwi
Awua
4 V,'.A.C.A. 202:
Amuakwa v. Kwamin Anyan
3 W.A.C.A. 22 distinguished.
Held also: That a purchaser is
entitled to enforce his rights
against the grantor of a
concession even if there has
been no endorsement of the
Certificate of Validity by tie
Concessions Court with the fact
that a person other than the
original grantor has become
owner of land subject to
concession.
C. S. Acolatse for
Appellant. R. E. Phipps
for Respondents.
The following judgments were
delivered :DOORLY, J.
The appellant, who was the 4th
defendant at the trial, appeals
against the judgment of Cooper,
Ag.
J. by which on the 24th August,
1939, he gave judgment against
the appellant and two other of
his co-defendants jointly and
severally for £250 with costs to
be taxed. The co-defendants have
not appealed.
The
admitted facts of the case are
as follows :-
All the defendants, except
present appellant, were
representatives of the Klevie
tribe and as such were the
grantors of the Attiteti (Copra)
Concession of which one Hans
Schumann was the holder. A
certificate of validity was
obtained on 31st May, 1932.
Subsequently the Basle Trading
Co. Ltd. became the holders of
the concession.
On the 31st December, 1934, the
first respondent was declared by
a Certificate of Purchase of the
Tribunal of the Paramount Chief
Awuna State in the Eastern
Province to be the purchaser of
the right title and interest of
the defendants (other than the
present appellant) in the land
comprised in the Attiteti
(Copra) Concession and the
certificate also states that the
property was sold to the 1st
respondent on the 30th June,
1934.-
On the 12th August, 1937, the
1st respondent conveyed his
rights to the 2nd respondent.
From the 2nd respondent's
evidence it appears that he
merely put up the 1st respondent
to buy on his behalf and that he
in fact was the real purchaser
at the sale in execution.
The validity of this certificate
of purchase was attacked by some
of the appellant's co-defendants
in a suit and the respondents'
title 'a~ owner was upheld.
On the 20th March, 1935, the
representatives of the Klevie
tribe gave an authority to the
appellant to draw the rents
of-the concession on their
behalf and on the 13th January
and the 31st March, 1936, he
drew £215 and £35 being the
rents of the concession from the
2nd July, 1934 to the 2nd July,
1936.
It is in respect of this sum
amounting in all to £250 that
the appellant with two of his
co-defendants has had judgment
given against them jointly and
severally.
On the 12th September, 1938, the
certificate of validity of the
Basle Trading Company1s
concession was endorsed by the
Court under the provisions of
section 29 of the Concessions
Ordinance as follows :-
•• The land comprised in and
referred to in this Certificate
of Validity has become the
property of Emmanuel Nelson
Tamakloe (the 2nd respondent) of
Keta as from the 39th day of
June, 1934 .•
(Sgd.)
J. M. ST. JOHN YATES,
Judge."
Four grounds of appeal were
filed originally and an
additional ground was admitted
by leave of this Court at the
hearing of the appeal.
The first three grounds of
appeal are on fact and will be
dealt with last. The fourth
ground is to the effect that the
last amendment to the writ was
embarrassing inasmuch as it
introduced a new cause of
action-an action in tort-in
addition to a claim for judicial
relief.
The additional ground of appeal
is in these terms :-
•• That the £250 being a claim
for rent, the Court below had no
jurisdiction to II1a.ke any
pronouncement thereon;"
It was pointed out by the Court
that this additional ground had
no substance unless the words "
of land" were added after "
rent" and Counsel for the
appellant was allowed to argue
as though those words had been
included. This argument was to
the effect that a suit for rent
of land between parties subject
to the Native Administration
Ordinance was an action relating
to the ownership, possession or
occupation of land and was
cognizable by a Native Tribunal
and therefore one in which the
Court should have referred the
parties to the appropriate
Native Tribunal under the
provisions of section 48 (2)
(c)
of the Native Administration
Ordinance. In support of this
contention Counsel for the
appellant cited the decision of
Sir George Deane in
Solomon v. Vanderpuye
dated 28th June, 1934, in the
Divisional Court (unreported).
This was an action for an
injunction to restrain the
defendant from interfering with
plaintiff collecting rents and
letting certain premises. The
learned Chief Justice held that
he could not grant an injunction
without going into the question
whether plaintiff owned the land
and whether the tenants were the
plaintiff's tenants-questions
which related to the ownership
and occupation of lands. He
therefore directed the parties
to the competent Native
Tribunal. Study of the writ in
that action shows that the
plaintiff was suing as successor
of a deceased African subject to
native customary law and the
land in respect of which the
injunction was sought was
alleged to be part of the
deceased's estate. It is clear,
therefore,. that the learned
Chief Justice was correct in
that he would have had to decide
first 'whether the land formed
part of the estate of the
deceased before he could grant
the injunction sought.
The judgment of a majority of
the West African Court of Appeal
in
Djabartey v. Benkumhene Antwi A
wua II
delivered on 15th December,
1938, and not yet *reported was
also cited. This decision was
that an action for damages
amounting to £500 for breach of
an implied covenant in a sale of
land by native custom by the"
defendant to the plaintiff for
undisturbed possession by the
plaintiff was a suit relating to
the possession of land.
Further, the judgment of the
West African Court of Appeal in
Kojo Amuakwa v. Kwamin Anyan
was cited. (3 W.A.C.A. p. 22).
By that judgment the Court
pronounced that an action for
rent between landlord and
tenant, both being persons
subject to the Native
Administration Ordinance, was an
action within the jurisdiction
of a Native Tribunal and that
the Supreme Court should have
referred the case. That is an
obvious conclusion; with the
other conclusions of the Court
in that action I am not at
present concerned.
Turning to the present action I
find that the original writ in
the action out of which this
appeal arises, so far as it
claimed against the present
appellant is as follows :-
*Now reported at
4 W.A.C.A. p. 202.
The plaintiff Attipoe claims
against all the defendant.';
jointly and severally .... an
order of t4is Honourable Court
directing the payment out to the
said plaintiff of the sum of
£250 now in Court and paid in by
the defendant. J. B. Amegashie
in Suit No. 75{1936 being rent
of the said concession accruing
due between the 30th d, Y of
June, 1934 and the 11th day of
August, 1937."
That writ was amended by leave
of the Court on the 14th
September, 1938, but not in so
far as it affected the
appellant. Later, on the 23rd
June, 1939, after pleadings had
been filed and some of the
plaintiffs' witnesses had given
evidence, leave was given for a
further amendment of the writ by
the following addition :-
•. Against all the defendants
.... the sum of £250 being money
had and received to the use of
the plaintiff."
This last amendment has been
criticised by Counsel for the
appellant as one which ought not
to have been made and this
criticism will be considered
later. For the present purpose
all that is necessary is to set
out the claims made at one time
or another by the plaintiffs
against the present appellant.
It is to be seen that both refer
to a sum of £250; at first there
was a prayer for an order of
Court for payment out of £250
paid into Court by the appellant
in another case. This claim was
presumably dropped and was
clearly impossible of success.
Later, a claim for £250 money
had and received to the use of
the plaintiffs was substituted.
From the admitted facts which
have already been recapitulated,
it is clear that the plaintiffs'
case against the present
appellant was that from the 30th
June, 1934, the plaintiffs were
by their certificate of title
and by the judgment of a
competent Court entitled to the
rents of the concession, that on
the 13th January and 31st March,
1936, the rents of that
concession amounting to £250 for
a period due after the 30th
June, 1934, were received by the
Appellant and that the appellant
was liable to refund that
amount.
In order to adjudicate upon that
case, it was not necessary for
the trial Court to adjudicate
upon any matter relating to the
ownership, possession or
occupation of land. The question
of ownership was
res judicata
and the fact that the money
claimed had been rent of land
was a mere accident. For the
purposes of this action it might
as well have been money due to
the plaintiffs from any other
source.
For this reason, I find that the
cases cited by Counsel for the
appellant can easily be
distinguished from the action
under discussion and I hold that
the action against the appellant
was not a suit relating to the
ownership, possession or
occupation of land.
The trial Court in my opinion
had jurisdiction and, indeed,
was the only Court with
jurisdiction to try the action.
The next ground of appeal to be
considered is that the
last amendment to the
plaintiffs' claim was
embarrassing in that it
introduced a new cause of
action, one in tort, in addition
to a claim
for judicial relief. In this
connection it has already been
pointed out in this jud€,ment
that the only change in the case
against the appellant is the
substitution of a claim for
£2.50 money had and received to
the plaintiffs' use for a prayer
for an order for payment out to
the plaintiffs of a sum of £250
paid into Court by the appellant
in a case to which the
plaintiffs were not parties. It
seems certain that the
plaintiffs could not have
succeeded in that claim and it
may well be that if Counsel for
the appellant had, before the
last amendment was made, applied
to the Court to strike out the
claim against the appellant that
application would have been
successful. No such application,
however, was made and when
application was made for the
last amendment of the writ,
there is nothing on the record
to show that any objection was
taken by Counsel for the
appellant. He appears to have
acquiesced and the trial
continued to the conclusion of
the plaintiffs' case and the
whole of the defendants' cases
were proceeded with on the new
claim which indeed became the
only issue in the trial. It
appears to me that there was
nothing embarrassing in the
amendment unless it be
embarrassing to a party to have
substituted for a claim on which
he could not fail one on which
he might lose. In my opinion it
is too late to take this
objection. In essence the
amendment was not embarrassing.
Another ground of objection to
the amendment is that, at the
time the writ was issued, the
plaintiffs could not have
succeeded on their amended
claim. This contention is based
on the proposition that, until a
certificate of validity has been
endorsed by the Concessions
Court the fact that a person
other than the original grantor
has become or been declared to
be the owner of the land, the
subject of a concession, that
person has no right to make any
claim as such owner. The section
dealing with these endorsements
was at the relevant date section
29 of the Concessions Ordinance
(Cap. 27 of the 1928 Laws), the
Ordinance under which this
Certificate of Validity was
obtained. That section provides
that the holder of the
concession shall make the
application for endorsement and
make~ no provision for such an
application to be made by the
person who has become or been
declared to be the owner of the
property. The situation might
easily arise in which the holder
of a Certificate of Validity
might neglect or might even
refuse to make such an
application. Still more likely
is the case where the holder of
the Certificate of Validity held
his hand until the parties
contending for the rights as
owner had settled their
differences or had had their
differences adjudicated upon.
The present appears to be a case
of the latter kind. To hold that
a person who has a certificate
of purchase of land subject to a
concession must wait upon the
sweet will of the holder of a
Certificate of Validity before
he can seek to enforce his
rights would amount, in my
estimation, to a denial of
justice and I do not think that
that is the law.
As soon as a purchaser of land
subject to a concession in
execution of the decree of a
competent Court obtains the
certificate of that Court that
he is the purchaser of the right
title and interest
of the grantor of a concession,
the purchaser in my estimation
is entitled to enforce his
rights, and that was the case of
the plaintiffs in this action.
It is true that by section 32 of
the Concessions Ordinance the
Treasurer receives the rents of
concessions and he is not bound
to payout those rents to any
person unless that person
appears either in the original
Certificate of Validity or by a
subsequent endorsement as the
person entitled to those rents
or any other person authorised
to receive the rents by such
person in accordance with rules
made under the Ordinance. That,
however, is a mere matter of
machinery devised to ensure
first that rents of concessions
are punctually paid and secondly
that they are received by the
proper person. There is nothing
in this legislation, as I read
it, which disentitles the owner
of land subject to a concession
to claim his rights before his
name has been endorsed on the
Certificate of Validity other
than the right to receive rents
from the Treasurer.
For these reasons I consider
that at the time of the issue of
the writ the plaintiffs were
entitled to sue the appellant
for the rents of the concession
which he had received and to
which they were entitled.
The other grounds of appeal are
on fact and consist of
variations of the proposition
that the appellant was the agent
of the original grantors of the
concession to collect the rents
and that while acting within the
scope of his agency he was not
liable.
On these matters the learned
trial Judge held that the
principle to be applied was that
those who with notice of an
adverse claim by another choose
to receive money must account
for it as money received for the
use of that other if the latter
proves himself legally entitled,
and in particular, as regards
the appellant, he found as a
fact that about August, 1934,
the plaintiff gave appellant
notice that he had bought the
land. He also found that the
appellant was not a mere servant
or agent but had identified
himself with his so-called
principals in the litigation
with full knowledge of the
facts.
With the principle enunciated by
the learned Judge I am in entire
agreement and I see nothing in
the evidence to induce me to
disagree with his findings on
fact. It therefore follows that
at the time the appellant
received authority to draw rents
from the Treasurer on behalf of
his co-defendants, viz. on 20th
March, 1935, he already had
notice that his principals were
not entitled to receive those
rents. It follows that the
authority given to him under the
guise of agency could not
protect him from liability.
For these reasons I think the
judgment of the trial Judge was
correct and I would dismiss the
appeal with costs assessed at
£35 13s.
M'CARTHY, J.
I concur.
FUAD, J.
I
concur.
