DONKOR vs. TEXAS PETROLEUM COMPANY [1961]DLSC894

Date	1961-03-17
Suit No.
Citation No.	[1961]DLSC894

KORSAH JSC

CJ JSC

VAN LARE JSC

SARKODEE-ADOO JSC

K. OHENE AMPOFO FOR THE APPELLANT

T.A. NELSON COFIE FOR THE RESPONDENT.

[1961]DLSC894
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&nbsp;[SUPREME COURT]

[1961] GLR 167

DATE: 17TH MARCH, 1961.

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COUNSEL:&nbsp;&nbsp;

K.
OHENE AMPOFO FOR THE APPELLANT.

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

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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 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(1) were not complied
with.

The case of Bissoe v. Ntah Aithie2(2), 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(3), of our laws of which section 2 reads as
follows:

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. 5m 4(4), had defined “concession” as in our present
law, i.e. Cap. 1365(5), 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 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(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.5 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. 136 7(7) 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(8) 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.</span</main>