344

Appeal Court

27 Nov., 1933

 

 

Accra, 27th November 1933.

IN THE MATTER OF THE CONCESSIONS ORDINANCE AND IN THE MATTER OF THE CERTIFICATES OF VALIDITY GRANTED IN CONCESSION ENQUIRIES Nos. 898, 903, 907, 909, 912, 919, 920, 944, 945, 946, 947 AND 948 (ACCRA). NAN A KW AKU AMOAH II, MANKRADO YAW EWUA AND ODIKRO KW AME KUMA OF ASAMANGKESE AND AKWATIA AND OPANYIN ANY AN

       TIBO OF         i\SAMANGKESE          AND

       OPANYIN     KO]O AMl\1AH OF

ASAMANGKESE •••

v.

               NANA                SIR            OFORI            ATTA, K.B.E.

OMANHENE OF AKYEM ABUAKWA AND THE CONSOLIDATED AFRICAN SELECTION TRUST LTD. THE HOLDERS OF THE ABOVE-

       MENTIONED CONCESSIONS ...... Respondents.

Concessions Ordinance-Enquiry into the validity of several con­cessions-Opposition from paramount chief claiming a one­third share of the rents-Condition inserted providing for the endorsation of the Paramount Chief's claim if and when established at law-Claim eventually established-Jurisdiction of Court to insert condition-Power of Court to order endorsation.

The representatives of the Asamangkese and Akwatia Stools, both of which are subordinate to the Paramount Stool of Akyem Abuakwa, granted a number of diamond mining concessions to the Consolidated African Selection Trust Limited. When the latter applied to the Concessions Court at Accra for the issue of Certificate of Validity in respect of these concessions the Omanhene of Akyem Abuakwa appeared to oppose the validation of each concession on the grounds (1) that the assent of the Paramount Stool of Akyem Abuakwa was necessary to any alienation of their lands by the Subordinate Stools of Asamangkese and Akwatia, and (2) that the Paramount Stool was entitled to a one-third share of the rents payable under each concession.

The Concessions Court, with a view tc' avoiding delay and at the instance of the Omanhene and the Sele-::tion Trust, decreed the issue of a Certificate of Validity in respect of each concession subject to the insertion therein of the following condition :-

" Nothing contained in this Certificate of Validity shall affect the rights or title of the Omanhene of Akyem Abuakwa on behalf of the Stool of.Akyem Abuakwa in respect of which he claims :-Firstly, that the assent of the said Omanhene was necessary for the valid alienation of the land comprised in the said concession which assent was duly obtained by the said claimants but the necessity thereof disputed by the said grantors; and secondly, that the said Omanhene is entitled to one-third part of all rents and profits reserved by and payable under the said concession which claim is disputed

Nana Kwak'lt Amoah II 6- ors. v. Nana Sir Ofori Atta 6- ors.

by the grantors. In the event of any of the said claims, or ~ny ~ther righ~s of the said Omanhene over or in respect of the land compnsed In the saId concession being hereafter finally declared in an action at law this Certificate of Validity shall be endorsed accordingly, and any rents and royalties to which the said Omanhene may be entitled shall be paid accordingly."

Although the representatives of the Asamangkese and Akwatia Stools 0I?posed the insertion of this condition in all the Certificates of Validity which were Issued, they did not appeal against its insertion in any single case.

The Omanhene commenced an action to establish the claims set out in the above " condition," but it was eventually discontinued by consent and the questions at issue therein along with several other questions at issue between his Stool and the Asamangkese and Akwatia Stools were referred to arbitration in the year 1929. After a lengthy arbitration the arbitrator (Hall, J.) awarde<;i and adjudged (inter alia) that although the Paramount Stool of Akyem Abuakwa IS not, according to custom, necessary for the valid alienation of lands held by the Asamangkese and Akwatia yet the Paramount Stool is, by the custom of Akyem Abuakwa entitled to receive one equal third share of all rents and profits of lands alienated by those stools or either of them.

The representatives of the Asamangkese and Akwatia Stools moved the Divisional to set aside the award, and had judgment given against them. From that judgment they appealed without success to the West African Court of Appeal and then to the Privy Council. The award being thus upheld the Omanhene had it made an order of the Supreme Court and then moved the Concessions Court ex parte for an order that each Certificate of Validity should be endorsed Ivith a statement that his claim to a one-third share of the rent payable thereunder had been established. In doing so he relied on the condition set out above which had been inserted in each Certificate of Validity.

The Concessions Court made an order as prayed, and refused a motion by the representatives of the Asamangkese and Akwatia Stools to set it aside. The latter :tppealed from such refusal on the grounds (I) that the Concessions Court had no jurisdiction to insert the condition in any Certificate of Validity, and (2) that the Concessions Ordinance contained no provision under which such an order could be made.

Held (1) the question of the Concessions Court's jurisdiction to insert the above stated condition in the Certificates of Validity was res judicata and could not be considered in these proceedings.

Held (2) the Conc:essions Court had power to make the order for endorsation under the Rules of the Supreme Court which apply to proceedings under the Concessions Ordinance.

The appeal was therefore dismissed with costs.

W. E. G. Sekyi and W. Kojo Thompson for the Appellants.

E. C. Quist and J. Henley Coussey for the Respondent Nana Sir Ofori Atta.

G. Kn·utford for the Respondents the Consolidated African Selection Trust Ltd.

The following judgments were delivered :­DEANE, C.]. THE GOLD COAST COLONY.

In or about May, 1924, the Consolidated African Selection Trust Ltd., as grantees of a number of diamond concessions having applied to the Court under the Concessions Ordinance for Certificates of Validity of the same, opposition was entered to the issue of such certificates by the Omanhene of Akyem Abuakwa who claimed (1) that the land the subject matter of the concessions could not be alienated without his consent (2) that h~ was entitled to a third part of all rents and profits alleged to be payable to the grantors in respect of the said concessions. Before this opposition could he disposecl of the Ohene of Asamangkese and the Odikro of Akwatia as representing with others the Stools of Asamangkese aud Akwatia the grantors of the concessions themselves entered opposition to the issue of the Certificates of Validity for reasons other than those advanced by the Omanhene.

An enquiry was held under the Concessions Ordinance as provided by sections 11 and 12 of the Ordinance to determine the validity of the concessions, at the dose of which the last­mentioned opposition was dismissed with costs against the grantors. From the judgment in the matter which was delivered on 20th November, 1924, it appears that during the course of the enquiry to wit on 23rd Augu<'t, 1924-, Mr. COllssey of Counsel for the Omanhene withdrew his opposition to the issue of the certificates, a compromise having been arrived at between the grantees (Claimants) and the Omanhene, which compromise was approved of by the Court by which it was agreed that the Omanhene should withdrew his oppositio!l to the issue of the Certificates of Validity in consideration of a clause being inserted by the Court in the certificates to the effect that the certificates were issued on the condition that nothing in them should affect the right or title of the Omanhene in respect of any of his aforesaid claims pending the result of an action at law to be taken by the Omanhen€' agaiI1st the grantors to establish such claims, and that ill the event of the said claims or either of them being upheld by the Courts the said certificates should be endorsed accordingly and any rent of royalties to which the opposer might be declared entitled should be paid to the said Omanhene. This was done and the Certificates of Validity issued accordingly with the said condition attached to the issue by the Court purporting to act under section 14 of the Concessions Ordinance, in imposing such condition with respect to the issue of the' !'aid certificates.

The object of so disposing of the matter was clearly to facilitate the grantees who could not make use of the concessions until they obtained Certificates of Validity. The opposition of the grantors having failed they were entitled to the issue of the certificates, but for the dispute between the Omanhene and the grantors about the former's right, as to which they were in no way concerned since the amount of rents payable by them remained constant in any event. There was no valid reason therefore why the working of the concessions should be delayed pending the determination of those issues, especially as it would probably be a long business; the grantors rights also would not be in any way prejudiced since the arrangement would allow the claims raised against them by the Omanhene to be decided in the Courts, and in the meantime the grantors could draw two-thirds of the rent reserved under the concession the remaining one-third being retained by the Treasurer to whom it was first payable by the concessionaires pending the determination of the rights set up by the Omanhene. That the fear of delay was not fanciful is shown by what occurred. On 12th May, 1927, an action at law was instituted by the Omanhene in the Supreme Court against the grantors asking for a declaration

(1) that the assent of the plaintiff as occupant of the Paramount Stool of Akyem Abuakwa was necessary for the valid alienation of lauds in the division of Akyem Abuakwa including lands held by the defendant stools (2) that the plaintiff was entitled to one equal third pa.rt of all rents and profits of lands alienated in Akyem Abuakwa aforesaid inclucting lands alienated by the defendants. Pleadings were ordered in the adion but on its coming on for hearing it was by leave of the Court discontinued on the parties agreeing to have their differences enquired into and determined by Mr. Justice Hall sitting as an Arbitrator under the provisions of the Arbitration Ordinance 1928. In the event the Arbitrator held that although by native custom the assent of the Omanhene was not necessary for the alienation of the land by the grantors, he was nevertheless entitled to one-third of the rel1ts of all lands alienated by the stools of Asamangkese and Akwatia or either of them. The grantors thereupon moved in the Divisional Court to set aside the award of the arbitrator: their motion was dismissed. They then appealed to the West African Court of Appeal, which dismissed the appeal, and again to the Privy Council when their appeal was again dismissed by a judgment delivered on the 21st November, 1932. Thereupon the award of the arbitrator confirmed by the judgment of the Privy Council having been made an order of the Court, the Omanhene applied that in accordance with the condition contained in the Certificate of Validity the said Certificates should be endorsed with a statement that his claim to one-third of the rent. payable under them had been sustained.

The motion was made ex parte as it. merely requested the Court to do something which it has already ordered should be done on the happening of an event which had now occurred, and an order was obtained that the endorsation should be made as prayed, but the Court in making the order also ordered that it should be served upon the grantors in order that they might if so advised move to set it aside. This they did by motion which came on for argument on 22nd April, 1933, but the learned Judge after hearing them fully, confirmed his previous order and refused to set it aside. It is against this refusal that this appeal has been brought.

The appellants now contend that the order for endorsation of the certificates could not properly be made under section 14 of the Concessions Ordinance as they say it was. They point to a note made by the learned Judge who heard the motion to endorse, which appears on page 8 of the supplementary record containing the proceedings which took place on the hearing of the ex parte motion and which reads, "Mr. Coussey moves the Court under section 14 of the Concessions Ordinance (Cap. 27)," as showing that the application was made under this section and contend that the section is not applicable. On behalf of the respondent it is contended that the learned Judge misapprehended Mr. Coussey who no doubt referred to the Certificates of Validity with the conditions attached to them as having been made under the section, and as forming the basis of his application, and asked that the right of the Omanhene to have the said certificates endorsed as in them should be implemented. As this latter contention is entirely in accord with the wording of the motion before the Court, which was to use its exact words " for an order that the above­mentioned certificates be modified as therein provided by the endorsement thereon of a declaration that one-third of all rents and profits reserved thereby and payable thereunder by the Consolidated African Selection Trust Ltd ..... is payable to the Paramount Stool of Akyem Abuakwa," it seems to me that the objection, which at best is of a highly technical nature, cannot be sustained. The real question to be determined is whether or no the Omanhene was entitled to ask, as he did, to have the rights reserved to him under the certificates implemented; and if he was so entitled it can make no difference even if his counsel did make a mistake (I do not think he did) in thinking that the motion could be made under section 14 of Cap. 27. By section 6 of the Concessions Ordinance every proceeding under the Concessions Ordinance is a matter within the meaning of the Supreme Court Ordinance, and subject to the provisions of the Concessions Ordinance the Supreme Court Ordinance is to be read and construed with it, and 1 do not see how it can be reasonably contended that such an application, which is not provided for in the Concessions Ordinance where no provision is made as to what is to be done in case of unavoidable delay in determining the destination of rent payable under a Concession, as to which a Certificate of Validity is applied for, cannot be made in accordance with the ordinary rules governing applications in the Supreme Court. 1 think it could be so made and that the Court on hearing all the circumstances would have power to grant the prayer of the motion in this case.

Nor is the complaint that the order was made ex parte one of substance.

The grantors have been fully heard on the motion to set aside the order, which was essentially one which could be made ex parte. 1 have stated this appeal is against a refusal to set aside an order that certain endorsations should be made upon the Certificates of Validity of Concessions in accordance with a clause inserted in the certificates when they were issued which was some time in 1924. Now the appellants seeks to attack the jurisdiction of the Court to insert the said clause as part of the certificates.

But there has never been an appeal against the order validating these concessions; on the contrary the grantors have adopted it having been receiving for some time two-thirds of the rent payable under the certificates and acquiescing in the retention by the 1reasurer of the other one-third pending the determination of the litigation between the Omanhene and themselves. It is now too late in my opinion to raise any such issue, and in any case it seems to me that they are precluded from doing so by       section 29 of the Concessions Ordihance which provides that a certificate shall be good and valid from the date of such certificate as against any person claiming adversely thereto. The certificate has the effect of a judgment and cannot be disputed so long as it stands.

The supplementary order made by the learned Judge providing that the order made ih the premises should be brought to the notice of the Treasurer was, it seems to me, an entirely natural and proper order to make.

This appeal should be dismissed with costs £29 Is.

WEBBER, C.J. SIERRA LEONE.

I concur.

AITKEN, J.

This is the third appeal which has come before this Court as a result of Mr. Justice (as he then was) Hall's award on the various differences and disputes between the Paramount Stool of Akyem Abuakwa on the one side, and the Subordinate Stools of Asamangkese and Akwatia on the other side, which were referred to him as arbitrator by a deed of submission dated the 18th of June, 1929. By that award, which appears to have been published on the 9th September, 1929, he awarded and adjudged (inter alia) that although the assent of the Paramount Stool is not, according to custom, necessary for the valid alienation of lands held by the Stools of Asamangkese and Akwatia yet the Paramount Stool is, by the custom of Akyem Abuakwa, entitled to receive one equal third part of all rents and profits of lands alienated by those Stools or either of them.

In order to connect that finding with the Concessions Ordinance and the Certificates of Validity now under consideration, it is necessary to go back to the three Enquiries Nos. 898, 903 and 907 respectively into Concessions granted by the Subordinate Stools of Asamangkese and Akwatia to The Selection Trust Ltd. (now the Consolidated African Selection Trust Ltd.) which were held before the Divisional Court at Accra during the year 1924. Nana Sir Ofori Atta (then Nana Ofori Atta) was made a party to each enquiry for the purpose of opposing the grant of a Certificate of Validity on the grounds-

(a) that the assent of the Paramount Stool of Akyem Abuakwa was necessary to any alienation of their lands by these subordinate stools, and

(b) that the Paramount Stool was entitled to a one-third share of the rents (and apparently other monetary considerations) payable by the holder, that is, the Selection Trust Ltd.

1\s soon as the Omanhene was thus made a party to these enquiries the grantors, that is the Subordinate Stools of Asamangkese and Akwatia, also applied for and obtained leave to oppose their own grant apparently on the grunods that, since they recognised no rights in the Paramount Stool over their lands, they would never have granted any concession to which Nana Sir Ofori Atta, as the Omanhene of the Paramount Stool, could be made a party or under which he could receive any benefit in that capacity.

It was certainly a curious situation to find the grantors opposing their own grant, and it would seem that they were prepared to forego all the very considerable monetary benefits to flow from those concessions rather than admit that the Omanhene had any right to join with them as a grantor or to share in such benefits.

During the course of the enquiry, to be precise on the 23rd of August, .1924, the Omanhene withdrew his opposition on certain terms which were arranged between' him and the Selection Trust Limited, apparently without any reference to the grantor~, that is, the representatives of the Asamangkese and Akwatia Stools, and it was part of the arrangement that these terms should be embodied in the Certificates of Validity (if and when granted). The enquiry thus continued with the grantors as the only opposers-it seems clear that they never withdrew their opposition, and on the 20th of N ovem ber, 1924, the Court decreed the issue of a Certificate of Validity in respect of each concession and dismissed the grantors' opposition thereto in each case.

Certificates of Validity were duly issued in pursuance of this decree, and amongst the limitations, modifications and conditions imposed by the Court the following are to be found :-

" Nothing contained in this Certificate of Validity shall affect the rights or title of the Omanhene of Akyem Abuakwa on behalf of the Stool of Akyem Abuakwa in respect of his claims':- " brstly that the assent of the said Omanhene was necessary for the valid ;;lienation of the land comprised in the said concession which assent was duly obtained by the said claimants but the necessity thereof disputed by the said grantors; and secondly that the said Omanhene is entitled to one-third part of all rents and profits reserved by and payable under the said concession which claim is disputed by the Grantors .

•• In the event of any of the said claims, or any other rights of the said Omanhene over or in respect of the land comprised in the said CDncession being hereafter finally declared in an action at law this Certificate of Validity shall be endorsed accordingly, and any rents and royalties to which the said Omanhene may be entitled shall be paid accordingly."

I have thought it best to set out the exact words used in the Certificate of Validity itself although, for the understanding of the same, it must be stated that-

(a) The expression "The said Concession" means the Concession which was being validated;

(b) The expression "The said Claimants" means the Selection Trust, Limited, and

(c) The expression "The said Grantors" means the representatives of the Asamangkese and Akwatia Stools.

The precise wording of these particular modifications or conditions-I will henceforth refer to them as conditions-may be some importance.

Now it is to be observed that no appeal was lodged against the decision 6f the Divisional Court in these Concessions Enquiries, so that it seems rather late in point of time to object that the Court had no jurisdiction to impose those conditions. In point of fact they were imposed by the name Divisional Court in respect of all the other Certificates of Validity which are before us in this appeal, apparently without any active opposition on the part of the repre­sentatives of the Asamangkese and Akwatia Stools. Had an appeal been prosecuted against them it seems to me that it might have succeeded on the following grounds :-

(a) That section 14 of the Concessions Ordinance only empowers the Court to impose modifications or conditions in the interests of the native owners of the land or of competing concessionaires, and

(b) That at the time of imposing the same the Paramount Stool of Akyem Abuakwa had established no such interests: in point of fact it never did succeed in establishing them.

In the absence of any such appeal, however, it seems to me far too late to agitate those questions atthe'Present day.

To my mind all these Certificates of Validity must be taken as they stand, and we must regard the inclusion of these conditions as res judicata. In other words it is impossible to scrutinise their validity now.

The real question before us appears to be this :--can the Divisional Court give effect to the findings of the learned arbitrator in regard to the Omanhene's claims which I have already set out in full at the commencement of this judgment. (It is true that these findings occur in an award and not in an action at law, but in point of fact the Omanhene of Akyem Abuakwa did commence an action at law for the purpose of deciding his claims and that action was, by consent, withdrawn in order that the issues raised thereby might be considered and dealt with by the learned arbitrator. I think we must accept his findings as equivalent to a judgment of the Court).

I cannot say that I feel entirely free from doubt in the matter, but it seems to me that the Court would be stultifying itself if it refused to give effect to conditions which it had itself imposed without any party to the enquiry taking any steps to set them aside. As to whether or no the procedure adopted by the Omanhene to get these Certificates of Validity endorsed with the claim he has succeeded in establishing is in accordance with any particular section of the Concessions Ordinance seems to me to be a matter of trifling importance, and such procedure can be supported under Order V rule 2 of the Supreme Court Rules though I think a motion on notice to the grantors would have been better than a motion ex parte. But be that as it may be, the Omanhene has got an award in his favour with respect to his one-third rents and profits claim which the Privy Coun61 has refused to set aside, and which has been made an Order of the Supreme Court of this Colony.

 

 

351

Nana Kwaku Amoah II & ors.

v.

Nana Sir Ofori Atta & ors.

Aitken. J.

 

 

2