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DONKOR v. TEXAS PETROLEUM COMPANY


  • appeal
  • 1961-03-17
  • SUPREME COURT
  • 1 GLR 167-169
  • Print

KORSAH, CJ, VAN LARE AND SARKODEE-ADOO, JJ.S.C.


Summary

Concession?-Lease of land in Ashanti made prior to enactment of Concessions Ordinance, Cap. 36?-Whether law applicable is the law in force at the date of trial?-Concession Ordinance Cap. 5 (1928 Rev.); Concessions Ordinance Cap. 136 (1951 Rev.), s.2.

Headnotes

A lease of land in Kumasi, dated the 23rd December, 1930, purported to convey to the lessee over five acres of land ?"for the purpose of farming, erecting buildings or anything whatsoever as the lessee may think fit.?" The question to be determined by the Supreme Court was whether the lease upon which the plaintiff relied was a concession.

Judgement

APPEAL from the judgment of the Land Court, Kumasi, (Murphy J.) delivered on the 23rd March, 1959 in an action for trespass to land, recovery of possession and mesne profits. The facts are set out in the judgment of the Supreme court.

JUDGMENT OF VAN LARE J.S.C.

Van Lare J.S.C. delivered the judgment of the court. The plaintiff brought this action before the Land Court, Kumasi, against the defendants, who had entered upon land, the subject-matter in dispute, and started erecting a petrol-filling station thereon, for wrongful entry, recovery of possession and mesne profits. He relied entirely on a lease dated the 23rd December, 1930, and made between the stool of Amakom and his predecessor Kojo [p.168] Fori, whereby a large area of land comprising more than five acres, including the trespassed area, was demised and became vested in the plaintiff?'s said predecessor. The trial came before Murphy J., on the 23rd day of March, 1959, who conceding to the argument that the lease relied on by the plaintiff was in fact a concession, and finding that it had not been dealt with as required by the Concessions Ordinance, held that it did not give a valid title since the requirements of the Concessions Ordinance Cap. 5 of the Laws of Ashanti1 were not complied with.

The case of Bissoe v. Ntah Aithie2, is the well-known authority for the proposition that if a lease, conveyance or other instrument in respect of interest in or to land comprising at least five acres, which is a concession within the meaning of the Concessions Ordinance, has not been dealt with under the said Ordinance, then such lease, conveyance or other instrument is null and void and consequently all rights of the claimant with respect to such concession, shall be deemed to have been determined absolutely. The main question for determination in this appeal is whether the lease on which the plaintiff relied for his title is a concession. We came to the conclusion that it is, as it conforms with the interpretation of ?"concession?" in the Concessions Ordinance, Cap. 1363, of our laws of which section 2 reads as follows:

?"'Concession?' means any instrument whereby any right title or interest in or to land, or in or to minerals, timber, rubber, or other products of the soil in or growing on any land or the option of acquiring any such right, title or interest purports to be granted or demised by a native, but does not include an assignment or sub-demise of the whole or any part of the rights granted by any concession.?"

The lease in this case conveys, as we have already indicated, a large area of land which is over five acres in extent ?"for the purpose of farming, erecting buildings or anything whatsoever as the lessee may think fit.?" It is plain, therefore, that the lessee?'s interest is not restricted nor is the use of the land exempted ?"with respect to minerals, precious stones, timber, rubber or other products of the soil.?" Counsel for the plaintiff-appellant has argued that if by the date of the lease in question the Concessions Ordinance Cap. 54, had defined ?"concession?" as in our present law, i.e. Cap. 1365, by which ?"any instrument whereby any right title or interest in or to land?" had been intended, he would not quarrel; but he has contended that as by the definition ?"concession?" in the law at the time of the lease which was to be found in section 2 of Cap. 5 as follows:

?"'Concession?' means any writing whereby any right, interest or property in or over land, with respect to minerals, precious stones, timber, rubber, or other products of the soil, or the option of acquiring any such right, interest or property [p.169] purports to be either directly or indirectly granted or agreed to be granted by a native, but shall not include an assignment of a concession as above defined. Provided that in Schedule A to this Ordinance the term may, where the context admits, be deemed to apply to each tract of land not exceeding five square miles in extent comprised in a mining lease acquired under the rules in that schedule in respect of which a definite and separate rent is payable to the native grantor?"6.

then the lease relied on by the plaintiff not having mentioned ?"minerals, precious stones, timber, etc.?" for the purpose of the grant, the learned judge was wrong in holding that the said lease was a concession. We have already drawn attention to the fact that by the use of the words ?"or for anything whatsoever?" the lessee was not precluded from putting the land to a use such as for those purposes even as contemplated by Cap.56

Granting that the learned trial judge was wrong in applying Cap. 5 of the Ashanti Laws, as he apparently was, because he was inadvertently misled in assuming that the said Cap. 5 is still in our statute book, we must point out that the laws regulating the concessions in both Ashanti and Southern Ghana (formerly Colony) had been unified by Cap. 1367 of our laws in the year 1939 and by section 49 thereof, the Concessions Ordinance of Ashanti, i.e Ashanti Ordinance, No.3 of 1903, which became incorporated in the Ashanti Laws (1928) as Cap. 5 had been repealed; and in the result whether or not a document in a trial in Kumasi, Ashanti, in 1959 sins against the Concessions Ordinance, it is Cap. 136 of the Laws of the Gold Coast (1951 Edition) and not Cap. 5 of the Laws of Ashanti (1928 Edition) that must be looked at. This follows the case of Bissoe v. Chief Ntah Aithie8 in which the law that was applied to a document declaring it null and void because it had not been dealt with as required by the Concessions Ordinance, was the law applicable at the date of trial, but not the law applicable at the date of the document which was the 13th May, 1899, a time in fact when there was no concession law at all applicable in the Colony; the first Concessions Ordinance of the Gold Coast Colony was promulgated by Ordinance No. 14 of 1900.

It is not in doubt that by applying the law as it existed in 1959 when the trial came on, as the lease relied on by the plaintiff-appellant in this case has sinned against the Concessions Ordinance, in that there has been no certificate of validity obtained by the plaintiff in respect of his originating title, he cannot in the circumstances be permitted to base his claim on such an unenforceable interest, and the learned judge was therefore perfectly right in entering judgment for the defendant-respondent. It is the duty of the courts ?"to enforce legislation, the policy of which is to prevent chiefs [or any other natives] alienating large tracts of land without the transaction being scrutinized by the Concessions Court?" - Bissoe v. Ntah Aithie9. For these reasons we dismiss the appeal.

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

K. Ohene Ampofo

Defendant / Respondent

T.A. Nelson Cofie

Referals

Bissoe v. Aithie (1926) F.C. 26-29), 113. v. Aithie (1926) F.C. 26-29), 113.

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