Deprecated: mysql_connect(): The mysql extension is deprecated and will be removed in the future: use mysqli or PDO instead in /home/ghanalegal/domains/ghanalegal.com/public_html/engine/Drivers/mysql.php on line 101 AFRICAN WOODS LTD. v. ADMINISTRATOR OF STOOL LANDS CONCESSION ENQUIRY NO. 471 (ASHANTI) ASUKESE FOREST RESERVE TIMBER CONCESSION | GhanaLegal - Resources for the legal brains

AFRICAN WOODS LTD. v. ADMINISTRATOR OF STOOL LANDS CONCESSION ENQUIRY NO. 471 (ASHANTI) ASUKESE FOREST RESERVE TIMBER CONCESSION


  • appeal
  • 1962-07-10
  • SUPREME COURT
  • 2 GLR 24-30
  • Print

VAN LARE, SARKODEE-ADOO AND ADUMUA-BOSSMAN, JJ.S.C.


Summary

Land law and conveyancing?-Concessions?-Certificate of validity?-Final application?-Whether prescribed preliminaries completed?-Concessions Ordinance, Cap. 136, (1951 Rev.), s. 10 (1).Courts?-Jurisdiction?-Co-ordinate?-Whether judge competent to review order of judge of co-ordinate jurisdiction?-Whether order to be implemented was ex facie regular or valid.

Headnotes

It is provided by section 10 (1) of the Concessions Ordinance, Cap. 136 (1951 Rev.) that:"10. (1) Every concession other than an option, in respect of which compliance has been made with section 8 of this Ordinance, shall nevertheless on the expiration of two years from the date of such concession become null and void and all rights of the claimant with respect to such concession shall thereupon determine absolutely unless before the expiration of the said period of two years the claimant has?-(a) taken and completed all the necessary intermediate steps (including the making of cadastral plan of such concession where such has been ordered to be made);(b) produced evidence that the Minister responsible for lands is satisfied as to the matters mentioned in paragraph (10) of section 13 of this Ordinance; and(c) made final application to the Court for the grant of a certificate of validity:Provided that if within such period of two years specified in this subsection an application has been lodged with the Minister responsible for lands for the extension of the period so specified, the specified period shall be thereby extended to two years and four months."The claimants obtained two timber concessions under two instruments, both dated the 10th August, 1956. The usual notice in respect of the concessions was filed in court. Extension of time within which to obtain a certificate of validity was granted, expiring on the 9th December, 1958. A certificate from the Minister of his satisfaction as to the financial ability of the claimants to develop the concessions was filed in court on the 12th March, 1958.The claimants asked for a further extension of time in which to obtain a certificate of validity but this was not granted. On the 23rd August, 1958, a plan of the concessions was filed in court. Oppositions were filed and the registrar, proprio motu, referred the matter to the court for the oppositions to be investigated and determined. On the 6th December, 1958, the court ruled that the "oppositions succeed only to the extent of the areas claimed by the opposers. These areas are accordingly excised from Concession Enquiry No. 471 (Ashanti). A survey order is accordingly made under the provision of section 18 with respect to the unopposed area".On the 1st June, 1960, the claimants made a final application to D. E. Gwira, Esq., Commissioner of Assize and Civil Pleas for certificate of validity. The application was successful. Draft copies of the certificates were prepared but not signed following intervention by the Administrator of Stool Lands. [p.25]The matter came before Simpson, J. who ruled that section 10 of the Concessions Ordinance had not been complied with as the claimants had failed to make a final application to the court for a grant of certificate of validity within the prescribed period, i.e. before the 9th December, 1958. Simpson, J. said, "No final order for a certificate of validity to issue was made [on the 6th December, 1958] and Commissioner Gwira had no power to interprete [that order] as he purported to do . . . the proceedings before him were a nullity."The claimants appealed.

Judgement

APPEAL against a ruling dated the 9th December, 1960 (unreported), delivered by Simpson, J. sitting in the High Court, Kumasi, wherein, following intervention by the Administrator of Stool Lands, he declined to sign and issue formal certificates of validity in respect of the Asukese Forest Reserve Timber Concession.

JUDGMENT OF VAN LARE J.S.C.

Van Lare J.S.C. delivered the judgment of the court. This appeal is against a ruling dated the 9th December, 1960, delivered by Simpion, J. sitting in the High Court, Kumasi, whereby he declined to sign and issue formal certificate of validity in respect of the concession, the subject matter of the above-mentioned concession proceedings.

The material facts are briefly these. The claimants-appellants obtained two timber concessions under two instruments both bearing the date the 10th August, 1956, executed by the Kronti and Akwaboa stools of Ashanti respectively acting by their lawful customary representatives. On the 6th September, 1956, Messrs. Asafu-Adjaye Co., solicitors, of Kumasi, filed the usual notice in respect of the said concessions in court. Thereafter, according to the record of appeal, nothing further appears to have been done by or on behalf of the claimants, until [p.26] the 4th February, 1958, when the solicitors by a letter of that date applied to the Minister of Housing for extension of time within which to take the steps necessary for obtaining certificate of validity. By letter dated the 11th March, 1958, from the Minister in reply, they were notified that the time was extended "by four months to the 9th December, 1958." On the next day, the 12th March, 1958, the Minister further communicated to the solicitors a certificate of his satisfaction as to the financial ability of the claimants to develop the concessions and on the same date, the 12th March, 1958, this certificate was duly filed in court. From this stage Asafu-Adjaye Co. who initiated the proceedings appear to have stopped acting for the claimants and there was no further correspondence from them to the registrar of the court, but a new solicitor, Mr. Adade, appears on the scene who, by letter dated the 17th July, 1958, applied to the Minister for a further extension of time. He was asked by letter dated the 29th July, 1958, to indicate what period of extension he required and he replied by letter dated the 2nd August, 1958, praying for extension till the 31st December, 1959, but no further communication was addressed to him from the Ministry and it appears his application was tacitly refused. Thereafter nothing further happened till the 23rd August, 1958, when the new solicitor formally filed in court a plan of the concessions which had been "approved and issued by the Director of Surveys." After this filing of plan, the claimants again took no further step towards their objective of obtaining certificate of validity as appears from the record of appeal, till the 6th December, 1958. We find that the court constituted by Christian, Esq., Commissioner of Assize and Civil Pleas, delivered a ruling, the material portion of which is the following:

"The respective oppositions succeed only to the extent of the areas claimed by the opposers. These areas are accordingly excised from Concession Enquiry No. 471 (Ashanti). A survey order is accordingly made under the provisions of section 18 with respect to the unopposed area."

From this ruling it appears that shortly before the 6th December, 1958, there being oppositions referred filed against the grant of certificate of validity on the grounds that the area of the concessions encroached upon the respective areas of two earlier validated concessions, the registrar proprio motu referred the matter to the court for the oppositions to be investigated and determined. What is important to note is that there does not appear to have been any formal application for a final order filed to initiate the proceedings of the 6th December, 1958; and it is important to note that fact because the question has arisen as to what was the nature and substance of the proceedings of that date, counsel for claimants contending that it was a final application for certificate of validity upon which a final order to issue was made, whilst counsel for the Administrator of Stool Lands (hereinafter shortly called administrator) contends the contrary. The question will be dealt with in due course, but for the time being it seems necessary to continue with the narrative of events up to the stage when Simpson, J. made his order which is complained of. Continuing therefore with that narrative, the next event worthy of mention after the ruling of the 6th December, 1958, was the drawing-up and signing of a formal order for survey on the 28th February, 1959, by Mr. Commissioner Christian. Thereafter nothing further happened till the 1st June, 1960, when we find the court, now constituted by Gwira, Esq., Commissioner of Assize and Civil Pleas, entertaining a [p.27] final application by Mr. Franklin on behalf of the claimants for certificate of validity and granting it. The short proceedings are the following:

"Franklin for the holders. Certified plan put in marked. Certificate of financial ability produced and marked. Under the rule in Concession Enquiry No. 2481, Cape Coast, the final order for certificate of validity in this Concession Enquiry No. 471 (Ashanti) was made by Commissioner Christian on the 6th December, 1958. Let certificate of validity issue.

(Sgd.) D. E. Gwira."

Thereafter on the 7th June, 1960, Mr. Franklin under cover of letter of that date submitted two copies of a draft certificate of validity to the registrar who in turn, in accordance with a long subsisting practice which has existed for a considerable time but has not received any express judicial sanction, transmitted the drafts to the Commissioner of Lands for perusal and approval. The registrar received a letter notifying him that the matter was receiving attention and that communication would be addressed to him in due course. Nothing, however, was heard from the Commissioner of Lands, in spite of a number of reminders, up to the 4th October, 1960, when by direction of Simpson, J. the registrar wrote to him that unless something was heard from him by the 15th October, 1960, it would be assumed that the draft was approved and certificate of validity would be signed and granted to the claimants. The 15th October, 1960, passed without any communication from the Commissioner of Lands but on the 3rd November, 1960, a telegram was received from him by the registrar to the effect that he would be grateful if action on certificate of validity would be withheld as the administrator proposed to intervene. The judge, however, had the matter set down for mention and it appears that Mr. Horrocks appeared for the administrator to argue against the signing and issue of the certificate of validity. After hearing the arguments of Mr. Franklin for the claimants and Mr. Horrocks for the administrator, the learned judge delivered his ruling refusing to sign and issue the certificate of validity which is challenged by this appeal. In his said ruling he referred to Mr. Commissioner Christian's order for survey made on the 6th December, 1958, then to Mr. Commissioner Gwira's interpretation of that order of the 6th December, 1958, as a final order for certificate of validity justifying him to make an order for certificate of validity to issue, then proceeded to consider the legal position disclosed by the whole concession proceedings, and came to a final conclusion declining to issue certificate of validity in accordance with the order made by Mr. Commissioner Gwira in the proceedings. He expressed his consideration of the legal position in these words:

"Section 10 of the Concession Ordinance provides that every concession shall become null and void after two years unless before the expiration of that period the claimant has: (a) taken and completed all the necessary intermediate steps (including the making of a cadastral plan where such has been ordered to be made); (b) produced a certificate of financial ability; and (c) made final application to the court for the grant of certificate of validity.

In this case the two years expired on the 9th August, 1958. An extension of four months was granted, i.e., the 9th December, 1958. The order was made by Commissioner Christian on the 6th December, 1958. At that time the claimant had failed to comply with section 10, and no further extension of time was granted. The concession therefore became null and void on the 9th December, 1958." [p.28]

He went on to express his views about the orders made respectively by the two commissioners by saying as follows:

"No final order for a certificate of validity to issue was made by Commissioner Christian, and Commissioner Gwira had no power to interprete the order of the 6th December, 1958 as he purported to do."

He finally held as follows:

"In my opinion the proceedings before him were a nullity and I am enable to issue a certificate of validity in accordance with an order made in such proceedings.?"

In this appeal the point has been strongly pressed that the learned judge had no right to question Mr. Commissioner Gwira's order for certificate of validity to issue, because it was not his place to sit on appeal or review the decision of one who was in effect a judge of co-ordinate jurisdiction. The learned judge acknowledged the general proposition that it was incompetent to him to review as on appeal or otherwise, the order of Mr. Commissioner Gwira; but he went on to point out that he was nonetheless bound to ascertain whether or not the order which he was asked to implement was ex facie regular or valid in the sense that the same was made when there was Jurisdiction to make it, since it is only in that event that the order would be binding on him to implement without questioning it. In that view of the matter we think he was right, so for example, in Mensah alias Kakraba v. Renner,1 where an appeal from the judgment of a native court in a case relating to ownership of land which should therefore have gone direct to the Land Court under the provisions of the native Courts Ordinance was erroneously taken to a magistrate's court and thence to a Divisional Court which then transferred it to the Land Court and the presiding judge of the Land Court without questioning the order of transfer heard the appeal, it was held that the order of transfer and the judgment consequent upon the transfer all constituted a nullity.

His own, as well as Mr. Commissioner Gwira's, jurisdiction to make an order in this concession proceedings, depended unquestionably upon whether or not the requirements of section 10 of the Concessions Ordinance had been complied with at the time each of them was called upon to make his particular order. So in Concession Enquiry No. 939 (Accra)2 Deane, C.J. (Gold Coast) referring to the Concession Ordinance, pointed out that:

"The legislature in fact enacted clearly that matters under this Ordinance should be dealt with strictly according to the Ordinance, and validation or invalidation is not a matter left to be dealt with at large in the discretion of the Courts; its action is limited by the power and jurisdiction conferred by the Ordinance.?"

The principal question for consideration in the appeal is therefore whether the requirements under the proviso to section 10 of the Ordinance had been complied with on the date when Mr. Commissioner Gwira made his order for certificate of validity to issue. The learned commissioner it will be observed purported merely to be implementing a final order alleged to have been made by Mr. Commissioner Christian within time, and it falls therefore to ignore back and consider that order of the 6th December, 1958, in the light of the contentions of the parties in respect of it. As already indicated, while counsel for the claimants contends that it was [p.29] "a final application for certificate of validity," counsel for respondent contends it was not. Considering the respective contentions it will be observed in the first place that the proceedings before the learned commissioner did not originate in any formal application made by the claimants, but was in fact a reference by the registrar to the court to determine the two outstanding oppositions to the claimants' concession. In such proceedings we are of opinion that the primary issue or question for determination must necessarily be the question of whether the opposer who is made plaintiff and made to assume the onus of establishing his case against the claimant as defendant, succeeds or fails to establish his case. If the opposer succeeds, of course the whole concession proceedings instituted by the claimant by the filing of notice of concession crumples to the ground. If he fails in whole or in part, however, it would not necessarily mean there is nothing more to be done before the claimant is in a position to make final application for certificate of validity. There may arise, as in this case, the necessity for ordering a survey, to obtain a final accurate demarcation and plan of the exact area of land comprised in the concession. Even the formal enquiry as to the validity of the concession when the grantor or his representative attends to give formal evidence of the grant and of his satisfaction with the terms of the concession may not have taken place before the investigation of an opposition, so that it is only after the determination of the opposition that it becomes necessary for the court to make the formal enquiry as to the validity of the concession. At any rate, if at the stage when an opposition is determined, all that needs to be done has been done and the claimant is in a position to make final application for certificate of validity we would expect the claimant formally to make such final application and have it recorded, and the court to make a final order ordering certificate of validity to issue, to put the matter beyond a shadow of doubt.

On this question counsel for the claimants has pointed to and expressed strong reliance on the decision of the Ghana Court of Appeal Concession Enquiry No. 2481 (Cape Coast); Renewed Amponsaso Timber Concession3 where in a concession matter in which the court held an enquiry into an opposition and upheld the same as established in respect of the whole area, but on appeal it turned out that the opposition was valid only in respect of a portion of the Concession area, it was held that:

?"The court should not have refused the application for a certificate of validity in respect of the area as a whole simpliciter. In view of the opposers' success as to a portion of the area, the proper order which the judge should have made is that the application for certificate of validity was good in respect of the remaining area."

Learned counsel for claimant contends in effect that the appeal court meant that every reference to the court, as in this particular case of his clients, for the court to investigate and determine an opposition is a final application for certificate of validity, so that if the result of the investigation is that the opposition is dismissed in whole or part, there is no further need to make "a final application" as clearly contemplated by section 10 of the Ordinance. We are unable to subscribe to such a view. It is clear that in that case, the court assumed that everything which has to be done had been completed before the judgment which came on appeal, and that the learned judge of the court did in fact deal with a final application. Learned counsel expressed reliance also on another decision of the Ghana [p.30] Court of Appeal, Concession Enquiry No. 2449 (Cape Coast); Taylor v. Ministry of Housing.4 The facts of that case show that a final application by motion for a grant of certificate of validity after all preliminaries had been completed, was filed within the statutory period, but was not dealt with until after the statutory period had expired and the Court of Appeal therefore held that time ceased to run as from the date of the filing of the final application for a grant of certificate of validity. It is this feature about that case, i.e. the filing of a final application which distinguishes that case from the instant case in which it appears that the preliminaries prescribed in section 10 of the Ordinance had not been completed.

From the foregoing therefore it seems to us to be reasonably clear that the decision on the main question of fact in controversy in this case as to whether the proceedings before Mr. Commissioner Christian on the 6th December, 1958, was a "final application" for certificate of validity or not must be decided adversely against counsel for the claimants in that the proceedings did not originate in and was at no stage a "final application" for a final order for the issue of certificate of validity. There is nothing in the record of appeal to show that by that date (6th December, 1958) the court had even made the formal enquiry as to the validity of the concession prescribed by section 13 of the Ordinance. Moreover, Mr. Commissioner Christian did not in fact make a final order for the issue of certificate of validity even if he meant to do so, and that was why a necessity arose for the subsequent application to Mr. Commissioner Gwira. It follows therefore that the learned judge of the court below was right in his view of the nature and effect of the orders made by the two commissioners respectively which he was asked to implement, and that his final conclusion that there was no valid order for the issue of certificate of validity, i.e. one made in compliance with the requirements of the Ordinance, is correct and sound. We accordingly dismiss this appeal.

Decision

Appeal dismissed.

Plaintiff / Appellant

H. V. A. Franklin

Defendant / Respondent

I. A. Aidoo with him Ofori

Referals

(1)  Mensah alias Kakraba v. Renner (1951) 13 W.A.C.A. 342

(2) Concession Enquiry No. 939 (Accra) (1933) 1 W.A.C.A. 305

(3) Concession Enquiry No. 2481 (Cape Coast); Renewed Amponsaso Timber Concession, Court of Appeal, February 18, 1959, unreported

(4) Concession Enquiry No. 2449 (Cape Coast).  Reported sub nom.  Taylor v. Ministry of Housing [1959] G.L.R. 85, C.A.

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