Con Enq. No 939 (Accra) Came Ofori Atta Afircan Selection Trust Ltd (1933)

LawGlobal Hub Judgment Report – West African Court of Appeal

Concession enquity–Opposition to grant of a Certificate of Validity—Breach 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 :–

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 Loncessions 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 sssployee 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 at service. He denied, however, that he had committed any breach of his contract

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, :ant criggested that the Selection Trust might have a remedy against Mr.- Came tie the alleged breach of his contract of servicewith them elsewhere.