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TAYLOR ETC. v. MINISTRY OF HOUSING & OTHERS


  • appeal
  • 1959-02-26
  • COURT OF APPEAL
  • GLR 85-88
  • Print

KORSAH C.J., VAN LARE J.A. AND J.A. AND AND OLLENNU J.


Summary

Concessions Ordinance?-Meaning of Sec 10 (1) (c)?-Time ceases to run against claimant.

Headnotes

Concession No. 2449 (Cape Coast) was granted under the Concessions Ordinance to Messrs J. K. Taylor Sons on the 4th August, 1951.Section 10(1) of that Ordinance provides, inter alia, that"every Concession ... 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 ... made final application to the Court for the grant of a Certificate of validity."In the case of the present Concession, by the Concessions (Extension of Time) (No. 4) Order, 1955, the Minister exercised his power under section 10 (1) and (2), and ordered that"the period prescribed by section 10 of the Ordinance, within which all the necessary steps are to be taken and completed and final application has to be made to the Court for a Certificate of Validity, is hereby extended until the 3rd day of August, 1956."Taylor Sons made a final application to the Court by motion filed on the 30th July, 1956, for grant of Certificate of Validity, having already taken and completed all intermediate steps, and having obtained a Certificate from the Minister responsible for land in accordance with section 13(10) of the Ordinance. The application was set down for hearing on the 31st July, 1956, but owing to other business the Court was unable to deal with it on that day, and the grant of the Certificate of Validity prayed for was not made until the 7th August, 1956.Thereafter, the Registrar of the Court received from the Commissioner of Lands a letter dated the 5th November, 1956 in which the latter expressed doubts about the Court's jurisdiction to make the order for Certificate of Validity after the 3rd August, 1956, i.e. the date upon which the extended time expired. The Registrar submitted this to the Judge (Adumua-Bossman J.), who upon his own motion, and without notice to the parties to the Concession, purported to review his order granting Certificate of Validity to J. K. Taylor Sons, and rescinded it on the 17th December, 1956 on the grounds that it had been made without jurisdiction, because made after the 3rd August, 1956.Order 39 (entitled "Review") of the Supreme Court (Civil Procedure) Rules provides for review of a judgment or order by the Judge who gave the judgment, or made the order, but only upon an application to review, made by any person considering himself aggrieved by a judgment given or order made against him. If the order was in Chambers, the application shall be by summons in Chambers, returnable in four days. If the order was made, or judgment given, in Court, the application shall be by four days notice of motion. Applications must be made within 14 days of the judge or order, but in the case of a final judgment the Judgment may grant special leave, on terms, extending the time to 3 months. Where such an application for review is granted, a note thereof must be made in the register and the Court or Judge may at once rehear the case or make such order in regard to the rehearing as it thinks fit, and upon such rehearing the Court or Judge may reduce, vary or confirm its previous judgment or order.J. K. Taylor Sons appealed to the Court of Appeal (Civ. App. No. 88/58). The respondents were, (1) The Permanent Secretary, Ministry of Housing, (2) the Commissioner of Lands; (3) the grantors, per Omanhene Nana Tsibu Asare of Asin Atandaso State; and (4) the co-grantors, per Omanhene Nana Nkyi XI of Asin Apimenim State.

Judgement

JUDGMENT OF OLLENNU J.

(His lordship stated the facts, summarised the arguments of counsel, and proceeded):?-

There is no doubt that section 10 of the Ordinance shows an intention of the Legislature that a Concession should be null and void if due vigilance is not exercised within the first two years, or within an extension thereof. The question is, on whose part is that vigilance required by the Ordinance the Claimant, the Court, or both? In other words, it is the intention of the Legislature that a "Certificate of Validity" must be granted within the time limit, and that if it is not so granted the Concession shall become null and void? Or does the Legislature intend that "final application for the grant of Certificate of Validity must be made to the Court" within the time limit, leaving it to the Court to deal with the application at its convenience?

The answer depends entirely upon the interpretation to be placed upon section 10(1)(c) of the Concessions Ordinance, which reads as follows:-

"10(1) ..... unless before the expiration of the said period of two years the applicant has ...

(c) made final application to the Court for the grant of Certificate of Validity."

This language is simple, plain and unambiguous. In my opinion it means exactly what it says, and is incapable of any interpretation other than what those ordinary words mean: which is, that the person who is required to be vigilant is "the applicant," and the last step which he is required to take in the proceedings in the exercise of vigilance is that he should "make final application to the Court for grant of Certificate of Validity."

In my opinion those words cannot mean".... unless before the expiration of the two years the applicant has .... obtained from the Court grant of Certificate of Validity."

It is only where a claimant fails to make final application to the Court within the time limit that the Court's jurisdiction to grant him Certificate of Validity is ousted. But if on, or before, the last day of the time limit, he files "final application for grant of Certificate of Validity" time ceases to run against him, the Concession is kept alive and can be validated at any time thereafter which may be convenient to the Court.

Therefore, in my opinion, the learned Judge misdirected himself in ruling that, as the time for completing all necessary intermediate steps, and making final application for grant of Certificate of Validity, was extended only to the 3rd August, he had no jurisdiction on the 7th August to entertain the application (which had been filed before the said 3rd August) for grant of Certificate of Validity.

As this view of the matter would completely dispose of the appeal on its merits, I do not think it necessary to go into the second point made by Counsel for the appellants, very interesting though it is.

Onthe reasons stated I would allow the appeal, set aside the order made by the learned Judge on the 17th December, 1956, on the purported review, and restore the order made by him on the 7th August, 1956, granting the Certificate of Validity of the Concession.

Decision

<P>Appeal allowed.</P>

Plaintiff / Appellant

de Graft Johnson

Defendant / Respondent

Caulishaw

Referals

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