Viesa & Ors V. B. C. K. Asinor Of Kadjebi (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Native Lands—Acquisition by non-naiive without previous consent required by law.
The Administration (Togoland under British Mandate) Ordinance (Cap. 96), section 3 (3a).
The Administration (Togoland under British Mandate) (Amendment) Ordinance, No. 15 of 1940, section 3A (2).

Facts

Section 3 (3a) of the Administration (Togoland under British Mandate) Ordinance (Cap. 96), reads:—
“ (3) (a) In the case of any laws relating to the transfer of land which are in force in any part of Togoland under British Mandate under the terms of Article V or Article VI of the Togoland under British Mandate Order in Council, 1923, the provisions of any such law shall be construed together with and subject to the provisions of paragraph 2 of Article V of the British Mandate for Togoland; which paragraph is in the following terms:—

“No native land may be transferred, except between natives, without the previous consent of the public authorities, and no real rights over native land in favour of non-natives may be created except with the same consent.”

Section 3A (2) of the Administration (Togoland under British Mandate)
(Amendment) Ordinance, No. 15 of 1940, reads:—
“3A. (1) In the interpretation of this section, ‘ Native ’ means a person who belongs to a tribe indigenous to Togoland under British Mandate.
‘ Native of the Southern Section ’ and * Native of the Northern Section ’ respectively mean a person who belongs to a tribe indigenous to the Southern Section or the Northern Section, as the case may be.

“Provided that where a section of a tribe which is indigenous to Togoland under British Mandate, or to the Southern Section or to the Northern Section, as the case may be, does not belong to Togoland under British Mandate, or to the Southern Section, or to the Northern Section, as the case may be, a member of such section of the tribe shall not be a native within the meaning of this definition.”

The respondent had sold lands to the appellants and given them possession; but as the appellants, who were M non-natives ”, had not obtained the previous consent of the authorities required by law, they acquired no title or interest.

When sued by the respondent for the land, they lost, and they appealed, arguing that he was in pari delicto and that they ought in equity to be confirmed in their possession against him.

Held

Their contract of purchase being illegal and void by statute, there was no contract on which to found a right of possession.

Appeal dismissed.