DIVISION: IN THE SUPREME COURT
DATE: 29TH MAY, 1963
BEFORE: CRABBE, OLLENNU AND AKUFO-ADDO JJ.S.C.
CASES REFERRED TO
(1) Re Harrison’s Share under a Settlement; Harrison v. Harrison [1955] Ch. 260; [1955] 2 W.L.R.
256; [1955] 1 All E.R. 185, C.A.
(2) Concession Enquiry No. 939 (Accra) (1933) 1 W.A.C.A. 305.
(3) Holtby v. Hodgson (1889) 24 Q.B.D. 103; 59 L.J.Q.B. 46; 62 L.T. 145, C.A.
(4) Re St. Nazaire Co. Ltd. (1879) 12 Ch.D. 88; 41 L.T. 110, C.A.
(5) Re Suffield and Watts (1888) 20 Q.B.D. 693; 58 L.T. 911, C.A.
(6) Concession Enquiry No. 471 (Ashanti); African Woods Ltd. v. Administrator of Stool Lands
[1962] 2 G.L.R. 24, S.C.
(7) In re Ferdinand, Ex-Tsar of Bulgaria [1921] 1 Ch. 107; 90 L.J.Ch. 1, C.A.
(8) In re Securities Insurance Co. [1894] 2 Ch. 410; 63 L.J.Ch. 777; 70 L.T. 609, C.A.
(9) Jacques v. Harrison (1883) 12 Q.B.D. 136; 53 L.J.Q.B. 137; 50 L.T. 246, D.C.
(10) MacFoy v. U.A.C. Ltd. [1962] A.C. 152; [1961] 3 W.L.R. 1405; [1961] 3 All E.R. 1169, P.C.
(11) Yanney v. African Veneer Mahogany Exporters Ltd. [1960] G.L.R. 89, C.A.
(12) Craig v. Kanssen [1943] 1 K.B. 256; [1943] 1 All E.R. 108; 112 L.J.K.B. 228, C.A.
(13) Kofi Forfie v. Kwabena Seifah [1958] A.C. 59; [1958] 2 W.L.R. 52; [1958] 1 All E.R. 289, P.C.
[p.475] of [1963] 1 GLR 471
(14) Amoabimaa v. Badu (1957) 2 W.A.L.R. 214. (15)Ghassoub v. Dizengoff (W.A.) [1962] 2 G.L.R.
133, S.C.
(16) Mosi v. Bagyina [1963] 1 G.L.R. 337, S.C.
NATURE OF PROCEEDINGS
APPEAL from a ruling of Charles J. delivered in High Court, Sekondi, on the 16th April, 1962,
pronouncing a concession null and void and setting aside his order made on the 9th January, 1962, for the
issue of a certificate of validity in respect of the said concession. The facts are fully set out in the
judgment of Akufo-Addo J.S.C.
COUNSEL
H. V. A. Franklin for the appellants.
A. N. E. Amissah, Director of Public Prosecutions for the respondent.
JUDGMENT OF AKUFO-ADDO J.S.C
By an indenture of lease dated the 26th September, 1958, and expressed to be made between Nana
Kwame Bonfu II, Adontenhene of Tomento in the Gwira State as Lessor and Messieurs Conifin Timbers
Limited of Takoradi as lessees, a timber concession known as Sentum-Bonsa Timber Lands Concession
was granted to the lessees upon terms and conditions contained in the said indenture of lease.
By a deed of mortgage dated the 18th March, 1960, the said Conifin Timbers Limited assigned unto
Messieurs Maatschappij de Fijnhouthandel N.V. (Fynhout), the appellants, by way of mortgage, their
rights and interests in the said concession. The said Maatschappij de Fijnhouthandel N.V. thus became the
party interested in the grant of a certificate of validity in respect of the concession.
When the concession enquiry went before the High Court, Sekondi, an opposition to the grant of the
certificate of validity was settled by excluding the disputed portion from the concession and on the 9th
January, 1962, upon the tender of a certificate of financial ability signed by Mr. Krobo Edusei, then
Minister of Industries, Charles J. ordered the issue of the certificate of validity.
On the 5th March, 1962, the following proceedings are recorded as having taken place before Charles J.:
“Concession Enquiry No. 2384 (Sekondi)
Sentum-Bonsa Timber Lands Concession
For Review
Mr. Gaisie for Giles Hunt & Co. appears for the claimants
Mr. Blay appears for the opposers.
Mr. Gaisie informs court that in view of section 10 (1) (b) of the Concessions Ordinance, Cap. 136, which
was pointed out to him on the instructions of the court it is obvious that the certificate of financial stability
should be signed by the Minister responsible for lands who is not the Minister for Industry who signed the
certificate of financial ability. Mr. Gaisie points out that court cannot review this order on its own motion.
See David Mensah Dadzie v. Margaret Krakue (1951) W.A.C.A. dated 2-7-51.
[p.476] of [1963] 1 GLR 471
Mr. Gaisie informs court that he was under the impression that by section 13 (10) of Cap. 136 that any
minister could sign the certificate.
By Court: Adjourned for court to decide what procedure should be adopted as the court appears to have been
misled when certificate of financial ability was produced as having been signed by the proper minister. Court
informs counsel that when the matter comes up again he must inform the instructing solicitors that court
wants one of them to appear to explain to court certain matters in connection with this concession.
(Sgd.) M. A. Charles.
Judge.”
There is no indication in the record of proceedings before this court as to how, nor were counsel engaged
in this appeal able to throw any light on how, the matter came before the learned judge on the 5th March,
1962. Mr. Amissah, Director of Public Prosecutions, who appeared for the respondents suggested that it
might be safe to assume that the learned judge must have invited counsel for the parties to appear before
him on that date. It is the only assumption, I think, that one can make in the circumstances.
However, on the 21st March, 1962, Mr. K. Dua-Sakyi, then Director of Public Prosecutions, filed a
motion in the court below on behalf of the Attorney-General by which he sought “an order for a review of
the order of this court made therein on the 9th January, 1962.” The motion was on notice to the appellants
and was supported by an affidavit sworn to by Mr. Dua-Sakyi in which the main point raised as a ground
for seeking a review of the order of the 9th January, 1962, was that the certificate of financial ability
tendered in support of the application for an order for the issue of the certificate of validity was null and
void in that it did not comply with the requirements of section 13 (10) of the Concessions Ordinance.1
Mr. Dua-Sakyi in moving his application on the 26th March, 1962, indicated that he was proceeding
under the provisions of Order 39, r. 8 of the Supreme [High] Court (Civil Procedure) Rules, 1954. An
objection to the application was taken on behalf of the appellants on the ground that the application was
out of time under the provisions of Order 39, and as the Attorney-General had not obtained special leave
for the purpose the application was not competent. The learned judge, Charles J., upheld the objection and
dismissed the application.
A fresh application was filed by Mr. Dua-Sakyi on the 26th March, 1962, on behalf of the
Attorney-General, but the relief now sought was:
“for an order of the court making the Attorney-General a party to this matter and also for special leave of the
court to enable the applicant to apply for a review of the order of the court made on the 9th January, 1962.”
[p.477] of [1963] 1 GLR 471
The affidavit in support of this application sworn to by Mr. Dua-Sakyi was in precisely the same terms as the
previous affidavit except that on this occasion reference was made to rule 15 of the Concession Procedure
Rules2 as the foundation for the Attorney-General’s application to be made a party to the enquiry.
Rule 15 of the Concession Procedure Rules (Colony) provides as follows:
“Any person served with a notice under section 11 of the ordinance shall, on filing in the Court from which the notice issued or to which the matter may have been transferred four clear days before the hearing day
notice of his intention to oppose the grant of the certificate of validity and the grounds of his opposition, be
deemed to be a party to the enquiry into such concession.
Any person so served who has not given due notice as aforesaid and any person not so served may at any
time by leave and on such terms as the Court may think just be made a party to the enquiry for the purposes
of opposition or otherwise.
Any opposition may be generally to the grant of a certificate of validity, or to a grant to the particular person
claiming the certificate, or to a grant of a certificate of validity in the terms claimed.
Any costs incurred by the intervention of any party either by such party or by the claimant shall be in the
discretion of the Court.”
The application came on for hearing on the 30th March, 1962, and after arguments by counsel, the court
recorded the following:
“By Court: Court informs both Mr. Dua-Sakyi and Mr. Franklin that court is not prepared to sign the
certificate of validity as court was misled when this enquiry came on for hearing that the certificate of
financial ability was signed by the minister responsible for lands as envisaged by section 10 (1)(b) of Cap.
136, unless claimants can satisfy court to the contrary.
By Court: Special leave granted to applicants for a review. Attorney-General also made a party.
Both counsel inform court that they agree to the substantive motion now.
Mr. Dua-Sakyi reiterates his submission.
Mr. Franklin relies on his submission.
By Court: Adjourned to the 2nd April, 1962, for ruling.”
On the 2nd April, 1962, the learned judge delivered his ruling by which he granted the review sought and
ordered the enquiry to be re-heard on the 11th April, 1962. The enquiry was re-heard, and on the 16th
April, 1962, the learned judge pronounced the concession null and void, and in effect set aside his order
of the 9th January, 1962, on the ground that the certificate of financial ability signed by Mr. Krobo Edusei
and tendered in support of the claimants’ application for an order for a certificate of validity did not
comply with the requirements of the Concessions Ordinance, that is with section 10 (1) (b) thereof. It is
from this
[p.478] of [1963] 1 GLR 471
decision that the claimants have appealed to this court on the following grounds:
“The learned judge was wrong:
(1) In re-hearing this concession enquiry.
(2) In failing to find, and in refusing an application for adjournment for the claimants to deduce further
evidence, that the minister responsible for lands was satisfied that a minister is satisfied that the
financial circumstances of the claimants are such as to ensure that the concession will be sufficiently
developed and worked.
(3) In holding that the claimants had failed to comply with a condition precedent.
(4) In ruling that the concession had expired on the 28th January, 1962.
(5) In declaring the concession null and void.
(6) In dismissing an application for a certificate of validity, the application having already been granted
on the 9th January, 1962.
(7) In ruling in such manner as in effect reverses the said Order of the 9th January, 1962.”
The matters raised by counsel’s arguments for the consideration of the court may be summarised as
follows: (a) Whether the Attorney-General not being a party to the enquiry up to the stage at which a final
order was made for the issue of the certificate of validity could thereafter properly intervene under the
provisions of section 16 of the Concessions Ordinance. (b) Whether the learned judge could properly
review his order of the 9th January, 1962, and, if he could, whether he could do so at a time when the
statutory period for the validity of the concession had expired. (c) Whether in the particular circumstances
of this matter the proceedings in the court below were to be controlled by section 10 or by section 13 of
the Concessions Ordinance or by a combination of both sections, and whether the learned judge was right
in applying section 10 to the consideration of the matter before him.
Section 16 of the Concessions Ordinance says:
“A Minister may request the Attorney-General to intervene in any enquiry under this Ordinance into any
concession and upon such intervention the Attorney-General shall be for all purposes a party to the
proceedings.”
Mr. Franklin, learned counsel for the appellants, contended that once a final order for the issue of a
certificate of validity had been made the enquiry was at an end, and that the further act of issuing the
certificate of validity was a mere ministerial act which could not be said to be a continuation of the
enquiry. At the time, therefore, when the Attorney-General sought to intervene, there was no enquiry in
which he could properly intervene. Mr. Amissah, learned counsel for the respondents, on the other hand
submitted that the final stage of a concession enquiry was the actual issue of the certificate of validity and
until that stage was reached the enquiry could not be said to have ended.
[p.479] of [1963] 1 GLR 471
Mr. Amissah in making this submission referred to the English case of Re Harrison’s Share under A
Settlement; Harrison v. Harrison3 by way of an analogy in respect of the powers which a judge may
exercise in a matter before him when he has made an order and before the order is formally drawn up.
This was a case in which Roxburgh J. of the Chancery Division of the High Court of England made an
order approving a scheme affecting the interest of infants and unborn children under the trusts of a
settlement. Before the order was formally drawn up, however, the House of Lords considered a similar
case and held that the court had no jurisdiction to make such an order.
The learned judge therefore, suo motu, recalled his order and invited the parties to appear before him and
argue the matter further. Mr. Amissah concluded that the actual issue and signing of the certificate of
validity is analogous to the formal drawing up of an order. Mr. Amissah would appear to suggest that if a
judge could suo motu recall his order, he could, a fortiori, do so on the application of the person interested
in the subject-matter of the order.
Without accepting in their entirety Mr. Amissah’s submissions so far I find no difficulty in holding that
Mr. Franklin’s argument is without any merit whatsoever.
The main object of the Concessions Ordinance is to ensure that acquisitions of land from land-owning
natives of Ghana for commercial purposes by both local and foreign companies or persons shall not
prejudice the interests of the land-owners and for that purpose the Ordinance regulates the processes by
which any such acquisitions of land may become valid. The High Court of Ghana is vested with the
power of enquiring into the validity of such acquisitions, but also a Minister of State is vested with certain
powers which he exercises in the public interest. Two such powers which are relevant to this appeal are
the power to certify that a claimant to a concession is financially capable of exploiting the land and the
right to intervene through the Attorney-General in any proceedings in court relating to a concession.
It cannot be doubted that the objects for which a minister may at any time deem it necessary to intervene
in a concession enquiry must include the object of preventing the issue of a certificate of validity for
whatever reasons that are sanctioned by law. The interest which a minister, particularly the minister
responsible for lands, has by law in any acquisition of land under the Concessions Ordinance must
necessarily lead to that conclusion, and that interest makes him a possible party in any concession
enquiry.
By what procedure then does a minister achieve his intervention? While the actual enquiry is proceeding
in court, the answer is a very simple one, and it is that submitted by Mr. Amissah, namely, that the
Attorney-General appears in court or by counsel and announces that a
[p.480] of [1963] 1 GLR 471
minister has requested that he should intervene, and he thereby becomes a party. He may ex abundanti
cautela swear to an affidavit in testimony of the minister’s request to him, but that in my view is not
necessary. The Attorney-General does not certainly proceed under rule 15 of the Procedure Rules made
under the Concessions Ordinance, for he does not require the leave of the court to become a party in such
circumstances.
What then is the position when the actual proceedings in court have closed with an order for the issue of
the certificate of validity? Such an order which is usually made at the close of a concession enquiry
amounts to no more than an adjudication that the concession is valid. Such an adjudication does not vest
title to the concession in the claimant.
Section 17 of the Ordinance provides that:
“Whenever the Court shall have decided that a concession is valid, a certificate to that effect bearing the seal
of the Court, hereinafter referred to as a “Certificate of Validity” shall be attached to, or endorsed upon, such
concession:…”
The Ordinance provides the processes by which title to a concession is vested in a claimant, and until a
claimant whose concession has been declared valid is armed with a certificate of validity the object of the
Ordinance has not been achieved.
Dean C.J. commenting on the Concessions Ordinance in Concession Enquiry No. 939 (Accra)4 said:
“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 Court; its action is limited by the power and jurisdiction conferred by the Ordinance.”
It is said that the issue and signing of a certificate of validity is a mere ministerial act. The issue of course
is, indeed it is no more than, a clerical act, but the signing of it by a judge is just as much a judicial act as
the pronouncement in court of the validity of the concession. The pronouncement by a judge of the
validity of a concession must be distinguished from the delivery of a judgment in an ordinary civil cause
from which it differs in a very important respect. A judgment in an ordinary civil cause takes effect from
the moment of its delivery, and the subsequent signing of it or the drawing-up of an order consequently
upon it is a mere form in obedience to the court’s directions (see Holtby v. Hodgson5) although it is
within the powers of a judge to alter his judgment at any time before it is entered or perfected, (see Re St.
Nazaire Co. Ltd.,6 and Re Suffield and Watts7). The pronouncement of the validity of a concession,
however, as I have already said, has not the effect of vesting title to the concession in the claimant, such a
vesting being the ultimate object of a concession
[p.481] of [1963] 1 GLR 471
enquiry. A judge, whether or not he be the judge who declared the concession valid, who is called upon to
append his signature to a certificate must satisfy himself that all the requirements of the Ordinance have
been strictly complied with and he is entitled to refuse to sign a certificate if he is of the view, that,
notwithstanding a declaration of the validity of the concession, the statutory requirements have in fact not
been strictly performed. If by the expression “a mere ministerial act” is meant that a judge when called
upon to sign a certificate acts like an automation, then that view discloses a complete lack of appreciation
of the underlying principles of the Concessions Ordinance.
In the case of Concession Enquiry No. 471 (Ashanti), African Woods Ltd. v. The Administrator of Stool
Lands8 Simpson J. sitting in the High Court, Kumasi, refused, when called upon to do so, to sign a
certificate of validity in respect of a concession which had been pronounced valid by two judges (Mr.
Commissioner Christian and Mr. Commissioner Gwira) sitting in the same court, on the ground that the
declaration of validity had been made without jurisdiction. This court upheld Simpson J.’s refusal on the
ground that since his jurisdiction to sign the certificate as well as the jurisdiction of the two learned
commissioners in pronouncing the concession valid rested solely on the Concessions Ordinance he was
right in satisfying himself that the requirements of the Ordinance had been complied with and in so doing
in effect to declare null and void the adjudication made by the learned commissioners. It follows that a
concession enquiry cannot be said to have ended until a certificate of validity had been duly issued and
signed, that is where the concession has been declared valid.
It follows further from the foregoing that the Attorney-General acting at the request of the minister
responsible for lands could properly intervene at the stage he did. In determining what the appropriate
procedure is that the Attorney-General should adopt in making good his intervention, it is to be noted that
there are no provisions in the Civil Procedure Rules relating to this particular circumstance, and it does
not appear to me that rule 15 of the Concession Procedure Rules is appropriate either. One must therefore
be guided by commonsense and the public interest.
If, as I have held, the Attorney-General can properly intervene to prevent the issue and signing of the
certificate of validity then, in the absence of any specific rule of procedure governing the case, the only
way open to him was to apply to the court to intervene which was indeed what the Attorney-General did,
although for some reason or other the learned judge remarked that there was no such application before
him. The learned judge, however, rightly in my view, made the Attorney-General a party.
[p.482] of [1963] 1 GLR 471
The idea of a person not being a party to proceedings in court seeking subsequently to intervene in some
form or other to protect or advance his interest affected by the proceedings is not a novel idea. Instances
of such intervention abound in the field of judicial administration.
One such instance was referred to by Mr. Amissah, and it is that of a person not being a party to
proceedings in court appealing against a decision. Such a person it has been held can appeal by leave of
the Court of Appeal provided he establishes a locus standi by showing that he was a possible party to the
proceedings (see In re Ferdinand, Ex-Tsar of Bulgaria9 and In re Securities Insurance Company10).
Another instance is of a person who, not being a party to a suit, may apply to set aside a judgment in the
suit entered by default (see Jacques v. Harrison11). These instances provided by analogy ample
justification for the step taken by the Attorney-General.
The next question is, could the Attorney-General having been made a party properly proceed to apply for
a review under the provisions of Order 39? Order 39 opens with the words “Any person considering
himself aggrieved” and although on first impression it would appear that a person not being a party to the
original proceedings may apply for a review of the judgment in those proceedings so long as he is
aggrieved by it, such an interpretation does not appear to me to accord with the plain words of the
provisions of this Order read as a whole and which can only properly relate to a party to the proceedings.
Apart from the words: “A party who is not appealing from a judgment or order may apply for a review of the judgment
notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is
common to the applicant and the appellant, or when, being respondent, he can present to the Appeal Court
the case on which he applies for the review”
appearing in rule 1 (2), reference is also made in rule 1 (1) (b) to a person who “. . . desires to obtain a
review of the judgment given or order made against him . . .” This latter expression obviously qualifies
“any person aggrieved” and can therefore refer only to a person who was a party to the proceedings in
which the judgment or order complained of was given or made.
Although the Attorney-General was rightly made a party for the purpose of contesting the legality of the
order for the issue of the certificate of validity the order so making him cannot be held to operate
retrospectively so as to make him a party to the original proceedings in which he was as a matter of plain
fact not an actual party. It follows, therefore, that a resort to the provisions of Order 39 was not the proper
course open to the Attorney-General. In other words he could not properly apply for a review.
[p.483] of [1963] 1 GLR 471
Mr. Franklin’s submission that the learned judge was wrong in reviewing his order because at the time of
the review the period of validity of the concession (taking into account the extension of the period granted
under section 10 (1) (c) of the Ordinance) had expired is to say the least a somewhat strange proposition. I
cannot perceive the logical basis of the contention that the order could not be reviewed merely because
the period of validity had expired, assuming the propriety of the review; and if the order was a nullity as
the learned judge conceived it to be it does not require much effort to appreciate that the order could be
set aside at any time, for, in the words of Lord Denning in MacFoy v. United Africa Company Limited,12
“You cannot put something on nothing and expect it to remain there. It will collapse.” And it does not
seem to me to make any difference whether it collapses by effluxion of time or by an order of court.
I must here mention that a great deal of argument, not unaccompanied by some ingenuity, was expended
on the question whether or not the learned judge could suo motu review his order under Order 39. The
point does not seem to me to be of any relevance, for the learned judge did not carry out the review on his
own motion. It is true, as it has been assumed, that he invited the parties to appear before him on the 5th
March, 1962, but on that day he did nothing beyond adumbrating that in his view the court might have
been misled about the certificate of financial ability and adjourning the matter for the “court to decide
what procedure should be adopted.”
What happened next was not a resumption of the proceedings of the 5th March, 1962, but an application
by the Attorney-General initiating quite separate and distinct proceedings.
I do not therefore consider myself called upon to decide the issue whether under Order 39 a judge can
review his judgment suo motu, although if I were pressed for a view I would unhesitatingly say that a
judge has no such power under Order 39. In the course of counsel’s argument on this aspect of the appeal
the case of Yanney v. African Veneer Mahogany Exporters13 was cited by the appellants’ counsel in
support of his contention that a judge could not on his own motion act under Order 39. It was submitted
on behalf of the respondents that whatever that case might have decided it was not, by reason of Article
42 of the Ghana Constitution, binding on this court. I do not consider a decision on this point necessary
for the determination of this appeal, and I think it desirable to leave the matter open.
Although I have held that a review was not the appropriate mode by which the Attorney-General should
have proceeded, the proceedings in the court below do not for that reason become void, if some other
[p.484] of [1963] 1 GLR 471
ground in law can be found to justify not only the step taken by the Attorney-General but also the action
taken by the learned judge thereupon. In my view the proceedings can be so justified.
It is a fundamental principle of law that when a court or a judge gives a judgment or makes an order
which is void either because the judgment or the order was given or made without jurisdiction or because
it is not sanctioned by any law or rule of procedure, the court or the judge has an inherent jurisdiction
quite independently of any express power of review vested in the court or the judge, to set aside such a
judgment or order as being a nullity, either on the court’s or the judge’s own motion or on the application
of a person affected by such a judgment or an order, and the fact that a judge setting aside such a
judgment or an order might have founded his action on some supposed power vested in him by law or by
the rules of procedure would not render the proceedings void merely because it turned out that he
wrongly rested his action on an unauthorised foundation, because in any case he would have the inherent
power to act as he did (see Craig v. Kanssen,14Kofi Forfie v. Kwabena Seifah,15 Amoabimaa v. Badu,16
Concession Enquiry No. 471 (Ashanti),17 Ghassoub v. Dizengoff (W.A.)18 and the very recent case of
Mosi v. Bagyina.19
Both the learned judge and the Attorney-General held the view that the certificate of financial ability
signed by the Minister of Industries (that is “a Minister” under s. 13 (10) of the Ordinance) did not
comply with one of the statutory requirements essential for the validity of a concession, and that the
certificate of financial ability required for this purpose was one signed by the minister responsible for
lands (that is under s. 10 (1)(b) of the Ordinance). There is no doubt that, if this view is correct, the order
for the issue of the certificate of validity would be a nullity for non-compliance with the requirements of
the Concessions Ordinance, and the learned judge would therefore have the right to resort to the inherent
jurisdiction of the court to set that order aside. As the judge might do so either suo motu or on the
application of a party his action would certainly not be void merely because the matter was brought
before him by a person without a locus standi in the matter or merely because he wrongly attributed his
power to deal with the matter to the power of review vested in him by Order 39. If therefore it is said that
the Attorney-General had no locus standi (a view which I do not accept) and could therefore not properly
apply to have the order set aside, that will not derogate from the legality, in respect of procedure, of the
judge’s action in setting aside the order, because in any case he would have the inherent power to do so
on
[p.485] of [1963] 1 GLR 471
his own initiative. The fact that the judge’s view of the nullity of his own order may, upon a further
consideration in another court, turn out to be an erroneous view does not, in my view affect the propriety
of his action, on the basis of his view of the nullity of his order, in resorting to the court’s inherent
jurisdiction to set aside the order.
This brings me to the most important issue that calls for consideration, namely, was the learned judge
right in holding that his order for the issue of the certificate of validity was in effect a nullity because the
certificate of financial ability produced by the appellants was signed by “a Minister” and not by the
minister responsible for lands?
The provisions in the Concession Ordinances relevant to the consideration of this issue are contained in
sections 10 and 13. Section 10 provides:
“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 claimants has— . . . (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.”
And section 13 is in the following terms:
“13. No concession shall be certified as valid . . .
(10) unless it is shown that a Minister is satisfied that the financial circumstances of the claimants
are such as to ensure that the concession will be sufficiently developed and worked.”
Mr. Amissah’s submission was that sections 10 and 13 must be read together and that section 13 was
controlled by section 10. It follows, so Mr. Amissah submitted, that the only certificate that complied
with the requirements of the Ordinance was one signed by the minister responsible for lands, or,
alternatively, that if a certificate had been obtained under section 13 (that is a certificate signed by a
minister not being the minister responsible for lands) then there must be evidence that the minister
responsible for lands was also satisfied of the financial ability of the claimant, not necessarily that the
claimant must produce another certificate from the minister responsible for lands. Assuming Mr. Amissah
is right I do not see what evidence other than a certificate signed by the minister responsible for lands
could achieve this allegedly desired result, and which means that in addition to a certificate under section
13 there must be another one under section 10. Such a result cannot possibly be contemplated by the
combined effect of sections (10) (1) (b) and 13 (10). Mr. Franklin would seem to accept the view that a
certificate of financial ability signed by the minister responsible for lands was essential, whether or not as
an addition to one signed by a minister was not made clear, but he sought to blame its absence on the
dilatoriness of the minister
[p.486] of [1963] 1 GLR 471
responsible for lands in attending to the appellants’ request for such a certificate.
Mr. Franklin contended further that by section 10 (1) (b) the minister responsible for lands was required
to do no more than to be satisfied that a minister under section 13 (10) was satisfied with the financial
ability of the claimant. This interpretation of section 10 (1) (b) produces a rather clumsy result, and the
section in my view can mean no more than that the minister responsible for lands must in the
circumstances portrayed in section 10 be satisfied with the financial ability of the claimant, for the
expression “the matters mentioned in paragraph (10) of section 13” can only refer to “the financial
circumstances of the claimant” appearing in section 13 (10). The evidence of such satisfaction is of course
best afforded by certificate to that effect signed by the minister responsible for lands.
This apparent confusion is undoubtedly the result of the appearance of the expression “a Minister” in
section 13 and a “Minister responsible for lands” in section 10, and it is perhaps due to an oversight on
the part of the draftsman. In the law as it stood before the attainment of internal self-government in this
country the expression “the Governor” appeared in both sections 10 (1) (b) and 13 (10) and this
expression was, by post self-government legislation, replaced, for some inexplicable reason, by “the
Minister responsible for lands” in section 10 (1) (b) and by “a Minister “ in section 13 (10).
I am not attracted by Mr. Amissah’s submission that sections 10 (1) (b) and 13 (10) should be read
together nor that section 13 (10) must be read as controlled by section 10 (1) (b). In my view the two
sections relate to two separate and unrelated circumstances, and except for the reference in section 10 (1)
(b) to the matters mentioned in section 13 (10) the two sections do not cross each other.
Section 10, as the marginal note (“Provision in case of delay in prosecuting concession enquiries”) clearly
says, makes provision to save a concession from becoming void by reason of delay in validating the
concession, and contrary to Mr. Amissah’s submission that there is no law which says that a certificate of
validity must be obtained in two years from the date of a concession, a concession in the very plain
language of section 10 becomes void if it is not validated within two years. It follows therefore that where
there is no danger of the concession becoming void by reasons of delay in prosecuting an enquiry to the
point of validation then in my view the provisions of section 10 are wholly inapplicable. It is in the event
of such a danger that it becomes necessary to save the concession from becoming void by fulfilling the
conditions for that purpose set out in section 10.
[p.487] of [1963] 1 GLR 471
Salvation lies in obtaining an extension of time under section 10 (1) (c), and one of the conditions for an
extension is to produce evidence that the minister responsible for lands is satisfied with the financial
capability of the claimant.
In this case the period of validity mentioned in section 10 (1) was extended by virtue of the provisions of
the proviso to section 10 (1) (c). According to the appellants the concession which was dated the 26th
September, 1958, could therefore not become void until the 28th January, 1962, and it must be assumed
that all requirements necessary to obtain an extension of time under section 10 were duly fulfilled. At the
time of hearing the enquiry, therefore, there was no such delay in prosecuting the enquiry as to engender
any fear of the concession becoming void by effluxion of time, and such as to invoke the provisions of
section 10. The appellants had no need to obtain a further extension of time, and therefore no need to
provide themselves with evidence (in the form of a certificate) that the minister responsible for lands was
satisfied with their financial capability.
Section 13 provides for the validation of a concession which suffers from no default such as may be
caused by delay in prosecuting an enquiry, and it is therefore this section untrammelled by section 10 that
was applicable to the circumstances of this concession. It is indeed the section under which a concession
enquiry proceeds in respect of a concession that has taken its normal course to the point of validation
within the statutory period of validation of two years or any extension thereof. The language of section
13, as well as that of section 10, is too plain for argument and to admit of any other rational interpretation.
A certificate of financial ability signed by any minister therefore complies adequately with the
requirements of the law in respect of the concession herein.
I hold therefore that the learned judge was basically wrong in setting aside his order for the issue of the
certificate of validity merely on the ground that he was misled into accepting a certificate of financial
ability signed by Mr. Krobo Edusei, then Minister of Industries, which allegedly did not fulfil the
requirements of the law. It follows further that he was wrong in his view that his order of the 9th January,
1962, was in effect a nullity.
I would therefore allow the appeal, set aside the reviewed judgment of the 16th April, 1962, except the
order for costs and restore the order of the 9th January, 1962, whereby the issue of the certificate of
validity was ordered.
I would remit the matter to the court below with a direction that the certificate of validity be issued and
signed according to the tenor of the order of the 9th January, 1962.
JUDGMENT OF CRABBE J.S.C.
I agree that the appeal should be allowed.
JUDGMENT OF OLLENNU. J.S.C.
I also agree.
DECISION
Appeal allowed.
J. D.
