WIREDU AND ANOTHER v. MIM TIMBER CO., LTD. [1963] 2 GLR 167

DIVISION: IN THE SUPREME COURT

DATE: 28TH JUNE, 1963

BEFORE: ADUMUA-BOSSMAN, OLLENNU AND BLAY JJ.S.C.

CASES REFERRED TO

(1) Ramia Ltd. v. African Woods Ltd. (1956)1 W.A.L.R. 193,W.A.C.A.

(2) Wassaw Exploring Syndicate v. African Rubber Co., Ltd. [1914] A.C. 626, P.C.

[p.169] of [1963] 2 GLR 167

NATURE OF PROCEEDINGS

APPEAL from a decision of Crabbe J. (as he then was), unreported, given in favour of the plaintiffs who had sued the defendant for trespass to a portion of the land granted to them under a concession lease.

COUNSEL

N. Y. B. Adade for the appellant.

D. S. Effah for the respondents.

JUDGMENT OF OLLENNU J.S.C.

The plaintiffs are holders of a concession known as the Amama North Timber Concession under a concession lease dated the 11th December, 1957, validated on the 8th March, 1960; the certificate of validity in respect of the same is registered as No. 589/1960 in the Deeds Registry. The said concession was granted to the plaintiffs jointly by the stools of Susuanso and Nkwanta. The defendant entered upon portion of the land subject of the said concession, felled timber thereon and exercised other acts of possession thereon; he did so under and by virtue of timber felling rights granted to him on the 17th June, 1959, jointly by three stools, namely, the Contrajesu (Abesim) stool (the co-defendant’s stool), the Susuanso stool and the Nkwanta stool. The area over which the rights were granted was the subject-matter of litigation in a transferred suit No. 6/54 in the Land Court, between the Abesim stool on the one hand and Susuanso and Nkwanta stools on the other. The said suit was started in 1953 and is still pending. The Land Court, on the 27th February, 1954 made an order for interim injunction restraining all the parties thereto from dealing with the land, during the pendency of the suit; but on the 11th May, 1959, the said court, by further order, permitted the parties jointly to grant to the defendant, the aforesaid felling rights. In pursuance of the rights given him under the said agreement of the 17th June, 1959, the defendant occupied the area of the concession, blocked all access to it against the plaintiffs, and felled and carried away large quantity of timber. The plaintiffs thereupon sued him and claimed an order for injunction, and damages—special and general—for trespass. The co-defendant was joined upon his application. Both the defendant and the co-defendant counter-claimed for a declaration that the plaintiff’s lease dated the 11th December, 1957, is void and of no effect on the grounds that it is a concession obtained by fraud, and consequently the order validating it and the certificate of validity are each null and void.

JUDGMENT OF CRABBE J.

Crabbe J. (as he then was), after an exhaustive discussion of the facts and the law applicable, gave judgment for the plaintiffs, granted their claim for an injunction and awarded them £G2,000; he dismissed the counterclaim of the defendant and the co-defendant. Against that decision the defendant appealed to this court. The co-defendant did not appeal.

The defendant originally filed four grounds of appeal; with leave of the court he added ten more grounds. He however argued only two of those grounds. The grounds he argued are additional ground 1 and additional ground 3. These are:

“1. The learned judge correctly stated the law when he held `moreover, since the plaintiffs’ action of trespass is founded on possession it is not open to the defendant to set up the title of a third party unless he justifies

[p.170] of [1963] 2 GLR 167 what he has done under a licence from such third party in whom the legal title is vested.’ Upon that statement of the law the judge ought to have found that the defendant cannot possibly be said to have trespassed on any portion of the area comprised in the felling agreement, since the person entitled to possession of all that area was by virtue of the injunction order of the 27th February, 1954, the receiver and manager. Defendant’s licence to go on the land derives from this receiver, among others.

3. Section 32(2) of Cap. 136 presupposes a valid lease. If the lease is for any reason null and void, section 32(2) cannot be invoked to say that the certificate of validity is unimpeachable. Since in this case section 24(1) of the State Councils (Ashanti) Ordinance, 1952, was not complied with, the plaintiffs’ lease is null and void for all purposes including the purposes of the Concessions Ordinance, Cap. 136.”

In support of ground 1, counsel for the defendant argued that possession of the land gained by the plaintiffs in December 1957 by virtue of the concession lease of the 11th December of that year constituted the plaintiffs trespassers, because at that date the order for interim injunction made by the Land Court on the 27th February, 1954, was still in force, therefore the only person entitled to lawful possession at the date of the plaintiffs’ entry was the receiver and manager appointed by the court. Counsel submitted therefore that the plaintiffs did not have legal possession of the land as should entitle them to maintain action for trespass against a third person who entered the land subsequent to the commencement of the plaintiffs’ unlawful and ineffective possession. He submitted further that since the defendant obtained possession of the land by virtue of felling rights given him by all the three stools litigating title to the land, the concession lease granted to the plaintiffs by only two of the said contesting stools is inferior to the defendant’s right of possession.

It is well settled law that a person in possession of land, though himself a trespasser, is entitled to maintain an action for trespass against any person who disturbs his said possession except the person in whom title to the land is vested or any one claiming in the right of the true owner, i.e., as his agent or representative. Since the plaintiffs were in possession of the land before the defendants’ entry thereon, the plaintiffs are entitled, upon the principle of law stated above, to succeed against him unless he, the defendant, succeeded in proving a better right to possession of the land. Now although the felling rights were granted to the defendant by all the three stools who claim title to the land, the rights so granted being rights or interest in or to land, is a concession as by section 2 of the Concessions Ordinance1 which defines concession 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.”

[p.171] of [1963] 2 GLR 167

Again the area of land over which the said felling rights were granted as shown by the defendant’s document, far exceeded three square miles, in fact it is between 31 to 100 square miles; therefore it is subject to the provisions of the Concessions Ordinance, and is not one of those exempted by section 4 subsection (2) (e) of the Ordinance as amended by the Concessions (Amendment) Ordinance, 1955.2 Again that concession which the defendant relied upon to defeat the plaintiffs’ claim was not validated, and leave was not obtained of the High Court to give effect to it, and compliance with section 8 of the Ordinance was not made. The said felling rights are therefore null and void by reason of sections 4 and 10 of the Ordinance. Therefore even if the plaintiffs had been trespassers without a lawful right to possession, they still have a good cause of action against the defendant who without title to the land invaded and interfered with their possession. But the fact is that the plaintiffs’ concession of the land has been certified as valid; therefore as provided in section 32 (1) of the Concessions Ordinance, it is, “ . . . good and valid from the date of such certificate as against any person claiming adversely thereto, and shall be effective in respect of the whole area of land contained by the boundaries stated in such certificate, whether or not any discrepancy exists between such area and the area indicated by the notice and plan of the concession referred to respectively in subsections (1) and (3) of section 8.”

Arguing additional ground 3, counsel submitted that the absolute protection which section 32 (2) of the Ordinance gives to a validated concession must be interpreted to apply only to an order for certificate of validity given with jurisdiction and not otherwise. Counsel therefore invited the court to hold that the order certifying the plaintiffs’ concession valid is null and void because it was obtained by fraud, which therefore vitiated the whole of the proceedings up to the signing of the certificate of validity. The frauds alleged are: (1) the concession lease did not obtain the consent and concurrence of the State Council as required by the mandatory provisions of section 24 (1) of the State Councils (Ashanti) Ordinance, 19523 and the plaintiffs failed to disclose that fact to the concessions court, and (2) the proceedings were taken in the Land Court at Kumasi when they should have been taken in the Land Court, Sunyani, in whose jurisdiction the land is situate, but the plaintiffs concealed that fact from the court at Kumasi. Each of these submissions is misconceived. As to the first point, section 24 (1) of the State Councils (Ashanti) Ordinance provides that:

“It shall not be lawful, without the consent of the State Council concerned, to alienate or pledge any Stool property, and any instrument, and any transaction or agreement (whether in writing or not), which purports to effect any such alienation or pledge shall in the absence of such consent, for all purposes be null and void.” [p.172] of [1963] 2 GLR 167

The consent required by the section is indicated by the signature of the president of the State Council in whose area of authority the land alienated is situate. The Asantehene was the president of the State Council concerned with the land in this case at the date of the lease, and as pointed out by counsel for the plaintiffs, the Asantehene is shown on the said lease as having concurred in it. Therefore the submission has no foundation. In any event the grant of the certificate of validity is conclusive that the court was satisfied that the signatories to the concession lease were the proper parties to grant and concur in it: see section 13 (2) of the Ordinance.

The High Court under the Courts Ordinance,4 repealed, as under the Courts Act, 1960 (C.A. 9), was just one High Court exercising jurisdiction throughout the land. It was only with a view to more convenient administration of justice that the country was divided into judicial divisions, see section 22 (1) of the Courts Ordinance, not for purposes that the jurisdiction of the High Court should be strictly limited to the judicial division in which it was situated, and be completely void of jurisdiction in matters arising in or concerned with land in any other judicial division. Therefore unless a party to proceedings before the court, or the judge himself raised objection to the trial in a judicial division of a cause or matter which could properly have been instituted in another judicial division, the trial of any such cause in a judicial division in which it was commenced, is a valid trial, see, Order 5, rule 1 (a) and (e).5 It has not been shown that objection was taken by any of the parties to the concession enquiry to the jurisdiction of the Kumasi Court hearing the enquiry, to render null and void the order certifying the plaintiffs’ concession valid. That being the case, the jurisdiction of the Land Court, Kumasi, cannot be challenged. The Concessions Ordinance was passed mainly for the protection of the grantor and to some extent for the protection of the holder of a concession, and for the regularisation of the rights of competing concessionaires by establishing priority inter se, see Ramia Ltd. v. African Woods Ltd.6 That principle is set out in Wassaw Exploring Syndicate Ltd. v. African Rubber Co., Ltd.7 as follows:

“Generally speaking, one may say that the object of this legislation is for the protection of the natives and the native chiefs, for the validation by the Court, upon inquiry, of concessions granted of mining rights, rights of cutting trees, & Co., and for the regularizing of the rights of competing concessionaires by establishing priority among them inter se. On this last point s. 23 provides that `a certificate of validity shall be good and valid from the date of such certificate as against any person claiming adversely thereto’.” Section 23 referred to in the above cited judgment is now section 32 (1) of the Concessions Ordinance,8 which I referred to earlier.

[p.173] of [1963] 2 GLR 167

I agree that an order for validation of a concession is in the same position as a judgment or other order of a court; therefore if such an order is proved to have been obtained by fraud practised on the court, the said order and certificate of validity issued in pursuance thereof would be null and void as vitiated by the said fraud. But as shown above none of the matters relied upon by the defendant as fraudulent means for obtaining validation of the plaintiffs’ concession is fraud; therefore the order for certificate of validity to issue is in no way vitiated and is of full force and effect.

Once the certificate of validity was validly issued, the whole case falls back on section 32 subsection (2) of the Ordinance, which says: “A certificate of validity (whether issued under the provisions of this Ordinance or of any Ordinance repealed by this Ordinance) shall be conclusive evidence that all the requirements of the Ordinance under which it was granted or purported to be granted and all matters precedent and incidental thereto have been complied with, and shall not be liable to be impeached by any person by reason of any lack of notice of the boundaries or extent of the land in respect of which it is given, or for any other reason or on any other ground save that of fraud to which the holder of the concession is proved to be a party.” By reason of this section, the plaintiffs’ concession cannot now be questioned, and, in my view, the learned judge was right by virtue of section 32 subsection (1) in upholding it against the unvalidated concession of the defendant.

Other legal points incidental to the points argued on behalf of the defendant have been dealt with fully and explicitly by the trial judge, I do not therefore consider it necessary to go over them. In the result I would dismiss the appeal.

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

I agree.

JUDGMENT OF BLAY J.S.C.

I also agree.

DECISION

Appeal dismissed.

K. T.