COURT OF APPEAL
DATE: 26TH FEBRUARY, 1959.
BEFORE: KORSAH C.J., VAN LARE J.A. AND J.A. AND AND OLLENNU J.
COUNSEL
de Graft Johnson for appellants. The life of the Concession had been extended to the 3rd August, 1956, and application was made for the Court to be moved on the 31st July. When we attended Court on that day, Bossman J. was unable to sit, and we were asked to return on the 3rd August. On that day the motion could not be taken, and it was adjourned to the 7th, when the Order was made. Under the Supreme Court (Civil Procedure) Rules the Judge could not review the matter of his own motion. In this matter no party made application to the Judge. The interpretation which the Commissioner of Lands seeks to put upon sec. 10(1) (c) of the Concessions Ordinance is erroneous. Had the Legislature intended the section to require the obtaining of the Order itself within the time limit, the Legislature would have said so. The appellant’s motion filed on the 30th July was a compliance with sec.
10(1)(c).
Caulishaw for respondents. The whole intention of the Concessions Ordinance, in particular sec. 10(1), is that the Concession should be validated within two years, or otherwise be void. de Graft Johnson not called upon to reply.
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. or the 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.
