Herbert Flintoft & Ors V. Nana Kwabena Wusu & Ors (1934)
LawGlobal Hub Judgment Report – West African Court of Appeal
Enquiry into validity of concession—ex facie order—Application for leave to oppose made before final order—Substitution of another application to oppose in representative capacity—Motion adjourned pending determination of Suit concerning interest of Grantors and Opposer in property the subject of the eow.ession—Final Order for Certificate of Validity made before hearing of motion or determination of Suit.—Section 27 of Concessions Ordinance wrong!y relied upon to protect Opposer’s rights—Se.-tio:t 12 (2) of Ordinance imposes duty on Court to ascertain proper persons to grant concession—These issues subject of Suit and Motion.
Held : Appeal allowed. Order for issue of certificate set aside. Remitted to Court below for determination of motion.
A. Case-Hayford for Opposer-Appellant. C. C. Carter for Claimant.
E. 0. Asafn-Adjaye for Grantors.
The following judgments were delivered :— AITKEN, J.
On the 14th of December, 1931 Mr. Herbert Flintoft, the claimant, for the sum of £50, obtained from the grantors a gold and mineral concession, now known as the Beposo Lands Concession over an area of approximately five square miles near Lake Bosumtwi at Beposo. Subject to the payment of a yearly rent of £12 until the commencement ” of winning of gold or crushing of
are ” and thereafter a yearly rent of MOO, the concession was granted for a period of ninety-nine years provided that the claimant Ads heirs executors administrators and assigns) observed and performed certain not very onerous covenants. Other advantages were thereby conferred on the claimant (his heirs executors administrators and assigns) which it is not necessary to specify, though attention may be drawn to his right to determine the said term of ninety-nine years at any time by giving to the grantors
six calendar months notice in writing in that behalf “.
Notice of this concession was filed on the 24th of December, 1931; the deed itself was duly registered on the 8th of January, 1932; and on the 25th of January, 1932 the documents on which the claimant relied in support of his right to the concession were riled.
On the 21st of February, 1933, the matter of this concession seems to have come before the Chief Commissioner’s Court of Ashanti,. Concessions Division, for the first time. The Court was then constituted by Mr. C. M. Barton, the Circuit Judge, and the enquiry was numbered 197.
The learned Judge ordered that the necessary enquiry into the validity of this concession should be held at Kumasi on the 27th of February, 1933, and we may safely assume that the provisions of section 11 of the Ashanti Concessions Ordinance were duly complied with.
On the 27th of February, 1933 the enquiry was held at Kumasi before Mr. C. M. Barton, Circuit Judge. After hearing the evidence of the linguist to the Omanhene Nana Osei Agyeman Prempeh II and of the Registrar of the District Commissioner’s Court at Kumasi, and after the concession deed itself had been admitted in evidence by consent, the learned Judge made the following order :—
” Certificate of validity in respect of Concession Inquiry ” No. 197 to issue subject to the following ” conditions :—
- A cadastral plan of the concession to be prepared.
- The Governor being satisfied that the financial ” circumstances of the claimant are such as to ensure ” that the concession will be sufficiently developed ” and worked “.
It is to be observed that up to, and including, that 27th of February, 1933 no application for leave to oppose the grant of a
rtificate of validity had been made to the Chief Commissioner’s Court, nor had any hint of opposition thereto reached the ears of the learned Judge so far as we know. In the circumstances his girder was a perfectly proper one, but not being the final order for
are ” and thereafter a yearly rent of MOO, the concession was granted for a period of ninety-nine years provided that the claimant Ads heirs executors administrators and assigns) observed and performed certain not very onerous covenants. Other advantages were thereby conferred on the claimant (his heirs executors administrators and assigns) which it is not necessary to specify, though attention may be drawn to his right to determine the said term of ninety-nine years at any time by giving to the grantors
six calendar months notice in writing in that behalf “.
Notice of this concession was filed on the 24th of December, 1931; the deed itself was duly registered on the 8th of January, 1932; and on the 25th of January, 1932 the documents on which the claimant relied in support of his right to the concession were riled.
On the 21st of February, 1933, the matter of this concession seems to have come before the Chief Commissioner’s Court of Ashanti,. Concessions Division, for the first time. The Court was then constituted by Mr. C. M. Barton, the Circuit Judge, and the enquiry was numbered 197.
The learned Judge ordered that the necessary enquiry into the validity of this concession should be held at Kumasi on the 27th of February, 1933, and we may safely assume that the provisions of section 11 of the Ashanti Concessions Ordinance were duly complied with.
On the 27th of February, 1933 the enquiry was held at Kumasi before Mr. C. M. Barton, Circuit Judge. After hearing the evidence of the linguist to the Omanhene Nana Osei Agyeman Prempeh II and of the Registrar of the District Commissioner’s Court at Kumasi, and after the concession deed itself had been admitted in evidence by consent, the learned Judge made the following order :—
” Certificate of validity in respect of Concession Inquiry ” No. 197 to issue subject to the following ” conditions :—
- A cadastral plan of the concession to be prepared.
- The Governor being satisfied that the financial ” circumstances of the claimant are such as to ensure ” that the concession will be sufficiently developed ” and worked “.
It is to be observed that up to, and including, that 27th of February, 1933 no application for leave to oppose the grant of a
rtificate of validity had been made to the Chief Commissioner’s Court, nor had any hint of opposition thereto reached the ears of the learned Judge so far as we know. In the circumstances his girder was a perfectly proper one, but not being the final order for
lands together with the grantors (see paragraph 7 of the affidavit of John Kenneth Botchey filed in the Chief Commissioner’s Court on the 16th of December, 1933), they will be in a strong position to press their views as to the inadequacy of the consideration. for the Beposo Lands Concession on the claimant. I am aware, of course, that Mr. C. B. Pearson, the Acting Circuit Judge, who purported to grant a certificate of validity of that concession on the 28th of May, 1934, ignored this order made by his predecessor in office on the 19th of January, 1934, but I am clearly of opinion that he was bound by that order and had neither power to rescind it nor to disregard it. There is now only one way of getting rid of it, and that is with the consent of the would-be opposer.From what I have already said it will be realised that Mr. Carter, for the claimant, had an impossible case to argue. Nevertheless he made a valiant attempt to argue it, and it seems only courteous to deal with that attempt before I close. Mr. Carter put forward two arguments. First he submitted that Barton, J.’s Order of the 27th of February, 1933, which I have quoted in full, must be regarded as a final order for the issue of the certificate of validity and therefore as barring the way to any subsequent application for leave to oppose: see section 14 (1) of the Ordinance. The answer to this argument is that the order of the 27th of February, 1933 is very obviously and ex facie not a final order. Next Mr. Carter argued that the proceedings before Mr. C. B. Pearson, Acting J. on the 28th of May, 1934 must be regarded as a hearing of the would-be opposer’s application for leave to oppose and as a refusal thereof from which, by virtue of the provisions of section 14 (1) of the Ordinance, there can be no appeal. Certainly the learned Judge referred to the motion in opposition in the course of those proceedings and read the affidavit in support, but I cannot gather from his notes that he ever regarded himself as hearing that motion and, indeed, no one ever asked him to hear it. He simply seems to have looked at it and then, literally and metaphorically, to have pushed it aside. Whatever the effect of that may be, I do not think that it can amount to a judicial hearing and determination of the questions at issue between the parties; moredver, as I have already pointed out, Mr. C. B. Pearson was bound by Mr. C. E. Woolhouse Bannerman’s Order- of the 19th of January, 1934, and that prevented him from hearing the would-be opposer’s motion until the determination of the suit between him and the grantors unless, of course, the would-be opposer should consent to an earlier hearing. In other words Mr. C. B. Pearson had no power to hear and determine the would-be opposer’s motion on the 28th of May, 1934, whatever hi, intentions may have been, and no power to grant a certificate of validity until that motion was heard and disposed of. In the result this appeal must be allowed and the order of the 28th of May, 1934, granting a certificate of validity in respect of the Beposo Lands Concession, must be set aside
